Change: Part 3 - Signing Statements

President Obama has issued a signing statement, contradicting some things he said during the campaign.  But signing statements are just a procedural shortcut past a very serious problem of legislative collusion.  There is a better solution.

President Obama's signing statement...

[A]fter Democrats criticized former President George W. Bush's signing statements, Mr. Obama issued one of his own, declaring five provisions in the spending bill to be unconstitutional and nonbinding...

...would seem to contradict his previous arguments. 

  • In a 2007 letter to a constituent, Senator Obama said, "The President can veto a bill or sign it into law, but the Constitution does not grant him authority to determine when he can ignore those he signs." 
  • In a 2007 interview, Senator Obama said, "it is a clear abuse of power to use such statements as a license to evade laws that the president does not like", and "I will not use signing statements to nullify or undermine congressional instructions as enacted into law.
  • In a 2008 campaign event, when asked, "Do you promise not to use Presidential signage to get your way?", candidate Obama said "Yeah" and added that "We're not going to use signing statements as a way of doing an end-run around Congress."  That was captured on video... 

 

The issue of signing statements is complicated, and I don't intend to make a blanket pronouncement on the matter here. It comes down to a tension between speed and quality of legislative action: "Congress sometimes includes minor constitutional flaws in important bills that are impractical to veto."

But signing statements do not resolve the important questions of Constitutionality; they simply kick the can down the road.  Signing statements are a procedural shortcut that allow politicians to maintain the omnibus approach to legislation. 

The legislative bundling process sacrifices quality, oversight and accountability in exchange for speed.  This is a very bad collective decision making process.  It is unaccountable and collusive. 

The solution would be an unbundling of legislation.  That is, the legislature should consider and vote on each legislative item separately - each earmark, each rule, each amendment.  While this might seem prohibitively complicated for a massive bill, it need not be.  Line item voting could be accomplished with a simple box-check form submitted at the time of the formal vote, with the final bill composed of the individual items that recieved a majority vote.  This could also simplify the legislative reconciliation process. (NOTE: We should also ask ourselves why we would tolerate a legislative process so complicated that legislators cannot consider each element of a bill)

President Obama has pledged to change the Bush administration's approach to signing statements, but only in degree, not in principle.  That will not improve the government's perverse collective decision making process.   Legislative unbundling could resolve that problem, but that would require accountability and responsibility.  Neither Republicans nor Democrats appear interested in that. 

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Comments

Agreed

We (liberals AND conservatives) need to hold Obama's feet to the fire with things like this. Alot of the GOP seem to enjoy strong executive power, but I'd like to limit it as much as possible. His stance on using the 'state secrets' privilege to throw out court cases, and his FISA vote, go hand in hand with this to show that he's perfectly content to keep the power grabs of the Bush admin.

I'd appreciate particulars

not just that he issued a few signing statements,b ut what parts of the bill they were on, and was he contacting the congress for a speedy and quick resolution?

Baloney (yet again)

Please re-read those quotes, and THINK for just a few seconds... Nowhere does President Obama state he will NOT use signing statements.  He stresses that he will not use it to distort the decisions of Congress, or as an end-around Congress' laws.  I believe President Obams said so because he felt W had abused signing statements.

Signing statements had been used by many Presidents for many years.  Through President Clinton's terms, they were used to express the President's belief that some part of the law he was signing was either unclear or possibly even unconstitutional.  W used them to distort the law from what was written to what he wanted (the signed law states that X is illegal, and the new law will be enforced... W states as he signs it "heh heh - but I'll only enforce it if I want to heh heh").

President Obama has pledged to return signing statements to their historical purpose - clarification and pointing out questions of constitutionality.  On top of that, the President will send any questions of constitutionality to the Justice Department for a ruling.  In other words, this President is doing the job he was elected to do - not the job he wants it to be.

Load of crap!

President Obama has pledged to change the Bush administration's approach to signing statements, but only in degree, not in principle. 

Oh please! The principle is exactly what he is changing, and you are smart enough to know that. The President made clear that he will not use the statements to thwart the will of Congress. But instead for their historic purpose of dealing fairly with an unfortunate long delay built into our system of checks and balances, as all other Presidents prior to Bush used them.

He will be reducing "the degree" also, as President Bush 43 issued more signing statements in 8 years than the total issued by all other Presidents before him combined. All of them expressly to state he would not be enforcing the sections of the law he personally objected to.

The way it's supposed to work and why, is there might be a part of a law that many constitutional law scholars (like Clinton or Obama, and not Bush) think would not stand up as constitutional if brought before the Supreme Court. The justices themselves may even feel that way. But they can not do anything about it until a case is brought before them. That process could take months or years. Only then, could they overturn the law on constitutional grounds.

The executive and legislative branch have immediate actions they can take in the system of checks and balances. But the judiciary must wait and be patient. In the time it takes the case to wind it's way to the Supremes, many others could be injured through the enforcement of a law that many suspected from the start was unconstitutional. So the executive branch issues a signing statement to prevent the full enforcement, so no one is injured by the unconstitutional parts of the law, and as a courtesy to the judiciary to give them time to review the law.

The only flaw in the system is, without full enforcement there is never an injured party who has standing to bring their case all the way to the Supreme Court. But since the signing statement is not technically law, usually some agent somewhere will mess up and enforce the questionable part creating an injured party. But all the other agents who did "get the memo" aren't creating hundreds of other injured parties. Or a new administration with different opinions and priorities takes over, and starts to enforce provisions the previous administration ignored. Like we have now.

Re-read it.

GWMustGo: "Nowhere does President Obama state he will NOT use signing statements.  He stresses that he will not use it to distort the decisions of Congress, or as an end-around Congress' laws."

Atigiano: "The President made clear that he will not use the statements to thwart the will of Congress."

You ought to read it a bit more closely.  Obama said he was simply ignoring 5 provisions, declaring them "nonbinding".  That's precisely an end-around, thwarting the will of Congress.  I actually agree with some of his policy preferences (if enacted appropriately), but he's still saying "I'll sign this bill, but I'll ignore some parts of it."

Funny definition of "ignore"

First off , let's be clear that the President has identified 5 specific provisions within an 1,100 page bill. And that he clearly stated that he would in the future give Congress advance notice of similar constitutional problems, so they can be corrected before a vote is taken. That was not possible in the appropriations bill, because it was crafted in the last Congress. Had President Obama been party to the negotiations to craft the bill, it's likely these five small problems would have been corrected, and no signing statement at all would be necessary.

That being said, he cited five specific provisions, and gave specific and unique constitutional objections to each one. He also cited what his future substitute actions, would be in each case. That level of attention to detail doesn't sound like he ignored a single word of the bill. Nor does not complying with 5 provisions in a bill that contains thousands, sound like he is thwarting the will of Congess.

In contrast , Bush's signing statements would very often cite entire multiple sections of bills, running to hundreds of pages and thousands of provisions. And the constitutional objection was typically something vauge and meaningless like "the President shall construe ......in accordance with his supervisory role of the unified executive." And no further clarification on what that "construal" might consist of,  because neither Bush or his ibicile minions at Gonzo's DoJ were going to give it any thought.

That's why Obama was able to trash all 1200+ Bush era signing statements with one executive order. None of them contained even one legitimate constitutional objection. Obama is even agreeing to enforce in full measure every law passed under 6 years of GOP controled Congress. It's easier to do that, than run the risk that you might have to defend a Gonzales era constitutional justification in an actual court of law.

Degree

How many parts of a bill can a President say he's ignoring before it becomes a problem?  You're describing a difference of degree - and perhaps even of consideration - rather than a difference of category.  If it's wrong to "thwart" the will of Congress, then only doing it sometimes is not a categorical change.  He's just sidestepping the problem and offering more complete explanations.

it's not wrong to "thwart" congress.

Thwarting Congress is not where the difference lies. The Supreme Court thwarts Congress a lot. In fact, that is pretty much the reason the Court exists. It's purpose for being is to thwart the will of Congress, when the will of Congress, is in conflict with the Constitution.

As I explained in an earlier post, the unconstitutionality, is the only proper consideration for signing statements. That is the purpose for which all President's, with the exception of Bush 43 used them. You will notice that Obama did not issue an executive order to ignore the Bush 41 and Reagan signing statements. So the fact that the Bush 43 statements were singled out is not political, it's moral.

Using signing statements as a political tool because you don't agree with the aims, goals, and methods of Congress is dictatorial. It is a gross perversion of our system of government. Anyone who does it, should be considered among the worst President's of all time, as Bush 43 most definately is, by the majority of the public and historians.

If Bush's lawyers could have offered specific language and cited specific and longstanding principles of constitutional law, they surely would have. Just because Gonzalez was a dunce, doesn't make everyone at DoJ an idiot.  The reason these smart guys could not write a valid and lucid signing statement, is because they knew better than just about anyone, that no constitutional conflict existed that could be cited.

Like so many others in the Bush administration, they had the intelligence and experience to know what they were doing was morally wrong or illegal, but they didn't have the conscience or strength of character to not do it. They and their leader deserve nothing but our complete repudiation. And that goes for Dems and Reps, if they love our country more than their party.

It's not really that complicated.

All this controversy over signing statements misses the forest for the trees.  Congress passes a law.  A President either signs it or he doesn't.  If he does, whatever statement he makes has the same legal effect as any statement you or I might make at the time, which of course is none.