A recent diary by David Swanson asserts, in part, that President Obama as a candidate said of signing statements that "It is a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability. I will not use signing statements to nullify or undermine congressional instructions as enacted into law."
Mr. Swanson then says "Obama now does this routinely."
But it is historically, legally, and politically wrong to equate President Obama's use of signing statements with President Bush's, or to suggest that President Obama is doing what he pledged not to do. Any historical or legal scholar can easily point out how wrong Mr. Swanson is.
Some History
Signing statements have been used by Presidents since James Monroe. In a system of divided powers, clarification of how one branch of government interprets the other's actions, within the Constitution, is inevitable and necessary.
Andrew Jackson, in signing a bill funding a road from Detroit to Chicago, said that he would interpret it not to allow the road work to go beyond the Michigan border, because of Constitutional issues.
John Tyler signed a bill concerning legislative appointments, simultaneously announcing that he considered the bill unconstitutional.
And so on. U.S. Grant and Theodore Roosevelt used signing statements to construe laws so as to avoid Constitutional promblems. Bill Clinton issued more signing statements than any other President; far more than George W. Bush. But President Clinton didn't use them to (in President Obama's words) "evade laws that the president does not like or as an end-run around provisions designed to foster accountability." President Bush did.
The Problem with George W. Bush
It was the way that President Bush used signing statements that infuriated thinking liberals -- not the fact that he used them. The problem was this:
In one frequently used phrase, George W. Bush has routinely asserted that he will not act contrary to the constitutional provisions that direct the president to "supervise the unitary executive branch." This formulation can be found first in a signing statement of Ronald Reagan, and it was repeated several times by George H. W. Bush. The American Presidency Project, Univ of California at Santa Barbara.
The signing statement controversy in the Bush years was part of the "unitary executive" controversy; an attempt to strengthen the Executive Branch, not an attempt to clarify separation of powers issues.
In July 2006, an ABA Blue Ribbon Task Force found that these presidential assertions of constitutional authority "undermine the rule of law and our constitutional system of separation of powers." http://www.abanet.org/... You should read it. The conslusion is:
[T]he use, nature and frequency of [President Bush's] signing statements demonstrates a "radically expansive view" of executive power which "amounts to a claim that he is impervious to the laws that Congress enacts" and represents a serious assault on the Constitutional system of checks and balances.
Candidate Obama, in David Swanson's quote, was agreeing with the ABA finding on the way President Bush used signing statements. He was not saying that signing statements are unconstitutional.
President Obama's Use of Signing Statements
So, does President Obama now "routinely use" unconstitutional signing statements?
As President, Mr. Obama has issued seven signing statements:
February 17, 2009 Statement on Signing the American Recovery and Reinvestment Act of 2009
This was a message congratulating Congress on passing the stimulus bill and saying, "My Administration will initiate new, far-reaching measures to help ensure that every dollar spent in this historic legislation is spent wisely and for its intended purpose."
March 11, 2009 Statement on Signing the Omnibus Appropriations Act, 2009
This statement said, in part, "it is a legitimate constitutional function, and one that promotes the value of transparency, to indicate when a bill that is presented for Presidential signature includes provisions that are subject to well-founded constitutional objections. The Department of Justice has advised that a small number of provisions of the bill raise constitutional concerns."
March 30, 2009 Statement on Signing the Omnibus Public Land Management Act of 2009
The President's statement said, in part, "Section 8203 of the Act provides that the Secretary of the Interior shall appoint certain members of the Erie Canalway National Heritage Corridor Commission "based on recommendations from each member of the House of Representatives, the district of which encompasses the Corridor." Because it would be an impermissible restriction on the appointment power to condition the Secretary's appointments on the recommendations of members of the House, I will construe these provisions to require the Secretary to consider such congressional recommendations, but not to be bound by them in making appointments to the Commission. "
May 20, 2009 Statement on Signing the Fraud Enforcement and Recovery Act of 2009
President Obama's signing statement says, in part, "Section 5(d) of the Act requires every department, agency, bureau, board, commission, office, independent establishment, or instrumentality of the United States to furnish to the Financial Crisis Inquiry Commission, a legislative entity, any information related to any Commission inquiry. As my Administration communicated to the Congress during the legislative process, the executive branch will construe this subsection of the bill not to abrogate any constitutional privilege."
June 2, 2009 Statement on Signing the Ronald Reagan Centennial Commission Act
The President said, "I wholeheartedly welcome the participation of members of Congress in the activities of the Commission. In accord with President Reagan's Signing Statement made upon signing similar commemorative legislation in 1983, I understand, and my Administration has so advised the Congress, that the members of Congress "will be able to participate only in ceremonial or advisory functions of [such a] Commission, and not in matters involving the administration of the act" in light of the separation of powers and the Appointments and Ineligibility Clauses of the Constitution (Public Papers of the President, Ronald Reagan, Vol. II, 1983, page 1390)."
June 24, 2009 Statement on Signing the Supplemental Appropriations Act, 2009
Here is the signing statement, in full: "I want to thank the Members of Congress who put politics aside and stood up to support a bill that will provide for the safety of our troops and the American people. This legislation will make available the funding necessary to bring the war in Iraq to a responsible end, defeat terrorist networks in Afghanistan, and further prepare our Nation in the event of a continued outbreak of the H1N1 pandemic flu."
June 24, 2009 Statement on Signing the Supplemental Appropriations Act, 2009
The final paragraph of the signing statement says, "provisions of this bill within sections 1110 to 1112 of title XI, and sections 1403 and 1404 of title XIV, would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with international organizations and foreign governments, or by requiring consultation with the Congress prior to such negotiations or discussions. I will not treat these provisions as limiting my ability to engage in foreign diplomacy or negotiations."
Summary: President Obama "Gets It"
President Obama, a Consitutional scholar, understands the proper use of signing statements. He has used them consistent with the way they were used by James Monroe, Andrew Jackson, U.S. Grant and Theodore Roosevelt: to point out when there is a Constitutional issue, to delineate the fine line created by our division of powers.
President Obama has NOT used signing statements as President Bush did, to essentially veto parts of bills he did not like.
The ABA Blue Ribbon Task Force Report, to which a link is provided above, recommends three guidelines for Presidential use of signing statements:
1. They should respect the rule of law and our Constitutional system of separation of powers;
2. Presidential concerns regarding Constitutionality should be communicated to Congress during the legislative process; and
3. Signing statements should not be a substitute for a Presidential veto.
Any honest reading of President Obama's signing statements indicates that he is following the ABA Blue Ribbon Task Force's recommendations closely, even to the point of tracking it's language. President Obama is using signing statements properly, in accordance with American history and jurisprudence and with his own pre-election pledge. We should be writing thank you diaries to President Obama, in grateful acknowledgment of his return to the rule of law in his use of signing statements.
There has been much discussion on this site of whether we can count on President Obama. We should be asking whether he can count on us. Ill informed attacks accusing the President of broken promises because "signing statement" sounds bad to us after the last four years are not what the President should be expecting from us.