Tell Us How the Signing Statements Were Used
Charlie Savage has an article reporting–first of all–that Obama has warned those in the executive branch to check before relying on one of Bush’s Presidential signing statements. (h/t BSL)
President Obama on Monday ordered executive officials to consult with Attorney General Eric H. Holder Jr. before relying on any of them to bypass a statute.
Savage (who of course wrote the book on this stuff) goes on to explain the background of Bush’s abuse of signing statements, and to note that Obama says he will use signing statements, "with caution and restraint" (whatever that means).
Here’s Obama’s memo, and some excerpts:
I will issue signing statements to address constitutional concerns only when it is appropriate to do so as a means of discharging my constitutional responsibilities. In issuing signing statements, I shall adhere to the following principles:
- The executive branch will take appropriate and timely steps, whenever practicable, to inform the Congress of its constitutional concerns about pending legislation. Such communication should facilitate the efforts of the executive branch and the Congress to work together to address these concerns during the legislative process, thus minimizing the number of occasions on which I am presented with an enrolled bill that may require a signing statement.
- Because legislation enacted by the Congress comes with a presumption of constitutionality, I will strive to avoid the conclusion that any part of an enrolled bill is unconstitutional. In exercising my responsibility to determine whether a provision of an enrolled bill is unconstitutional, I will act with caution and restraint, based only on interpretations of the Constitution that are well-founded.
- To promote transparency and accountability, I will ensure that signing statements identify my constitutional concerns about a statutory provision with sufficient specificity to make clear the nature and basis of the constitutional objection.
- I will announce in signing statements that I will construe a statutory provision in a manner that avoids a constitutional problem only if that construction is a legitimate one.
To ensure that all signing statements previously issued are followed only when consistent with these principles, executive branch departments and agencies are directed to seek the advice of the Attorney General before relying on signing statements issued prior to the date of this memorandum as the basis for disregarding, or otherwise refusing to comply with, any provision of a statute.
Not that it’s a surprise, but Obama’s warning that executive branch officials ought not rely on Bush’s signing statements without checking (aside from a signal that we’re just supposed to guess which Holder wants to keep and which he wants to get rid of), pretty much confirms that Bush Administration officials have been relying on signing statements when they decide to ignore a law.
So while I appreciate Obama’s promise of "caution and restraint," I want to know…
Which signing statements have executive officials been using? The one overriding the McCain amendment prohibiting torture? The one telling Congress to feck off in its requests for data on the uses and abuses of the PATRIOT Act? Or my personal favorite, the one saying that, even though Congress cut off funding for such things, the Administration could still use funds to data mine American citizens?
Really. I’m glad Obama is promising all this "caution and restraint." But aren’t we owed some accounting for how these have been used in the last eight years?
Accounting and transparency, yes, absolutely. And not just in the last eight years, but going forward.
Frankly, I’d rather see ALL of the preexisting signing statements simply voided, and then if Holder upon inquiry decides to reinstate some, then some PUBLIC statement should be made. Or alternatively, if we’re not going to punt them all, we at the very least need publication of which ones have been reviewed and what the outcome was.
Otherwise how can I, as Joe Q. Citizen, be expected to act in compliance with the law if I don’t know what the law is?
I agree–this is as bad as pixie dust.
Me too – plus, which ones will Holder be ok-ing for future use?
T.I.A.
WTF? “I will issue signing statements to address constitutional concerns only when it is appropriate to do so as a means of discharging my constitutional responsibilities….” Either sign the fucking bill or don’t sign the bill (veto). The Executive branch is involved throughout a bills life and therefore should know if it’s acceptable as is. How modifying a bill via a signing statement is Constitutional is beyond me (INAL).
This statement is a reaffirmation not only of signing statements in principle, but of Bush’s signing statements, even if the legitimacy of some or even most individual signing statements is being questioned.
I had never heard of of signing statements until Bush. Now, apparently these pocket fiats and vetoes are apparently constitutionally respectable.
Most of the early Signing Statements were merely ceremonial or discursive. They didn’t suggest that a President wouldn’t act upon them. Madison actually did veto a bill strictly on Constitutional grounds although he supported it on a policy basis. The first to apply a signing statement to a portion of a bill were Andrew Jackson and John Tyler (see appendix). Both were accused by Congress of line-item vetos.
One alternative, I suppose, to a Presidential Signing Statement is for the Executive to take itself to Court…and challenge a provision as Unconstitutional. Or use a surrogate to do so. The Supreme Court often voids Unconstitutional PARTS of a law while allowing the remainder to stand. This would be a way that an Executive could perhaps deal with a recalcitrant Congress that attached an UnConstitutional provision to every bill submitted for signature, thus blackmailing the President into “sign this or nothing will get done”.
Of course, the President could also simply ignore the provision of the law that was UnConstitutional in practice…until it went to Court. That would clearly be trickier, since his act would be UnConstitutional as well…and might subject him to Impeachment. If the Court directly ruled that a law or a portion of the Law was Unconstitutional from the outset the President could declare “My hands are tied”.
ot
John Dean’s latest
Beyond the Pale: The Newly-Released, Indefensible Office of Legal Counsel Terror Memos
By JOHN W. DEAN
Friday, March 6, 2009
http://writ.news.findlaw.com/dean/20090306.html
“It will be very difficult for the OPR to find anyone who will say that John Yoo has met the standards of responsibility for an attorney in the Justice Department – other than John Yoo himself, of course.”
In his “caution”, Obama appears, at the moment, and barring further clarification, to be more Hamiltonian than Jeffersonian in his views of presidential prerogative …
A ’signing statement’ IS, effectively, the law.
Obama’s assertion that “…they promote a healthy dialogue between the executive branch and the Congress.” is disingenuous, at best, and certainly misleading …
DWB:
1) Signing statements predate Bush.
2) Signing statement were, up until Bush/Addington tried to game them, used as a means for a president to comment on legislation, not to change it.
3) Bush signed so many of them that nobody is sure just how many are out there.
However, every time a signing statement has been challenged in a court of law, it’s fallen apart rather dramatically. This is a good news-bad news problem for the Federal government as Bush/Rove/Cheney/Addington embedded the suckers into the regs of various government agencies. Obama is not just doing the right thing here, he’s pretty much heading off what would otherwise be a legal nightmare that would encompass virtually the entire Federal government.
There are several legal ‘nightmares’ which confront us, PW.
I sincerely (if audaciously) hope that you are correct that Obama is heading off one of them, but in doing so, he is “looking back”, and one hopes that this will not exhaust his capacity to do so and be the entire extent of that rearward vision or ‘accounting’.
Indeed Bu$h was and is a piece of … work.
The rule of law hangs in the balance, as well as an honest appraisal of what actually did go on during Bu$he’s reign of error, however, Obama has yet to make clear his position as regards far too many other aspects of the great lawlessness and those, such as FISA, which he has made clear do not, easily or happily, bring on sweet and restful dreams …
While we should be thankful for ANY accounting, we must not become sanguine, for the notion of the unitary executive, while not new in our history, appears to have a renewed and favorable reception at a number of places where those who would become lawyers are granted their degrees in ‘jurisprudence’.
Like with a lot of things, the administration of President George Herbert Hoover Bush has left signing statements with a lot worse reputation than they deserve. Time will tell, but on this announcement alone, one cannot conclude Obama currently intends to be disingenuous in using this tool. For example, among the valid uses of signing statements under the Rule of Law would be to curtail the efforts of a veto-proof majority of an elected body to respond to what it perceives as a popular demand to negate constitutionally-embedded minority rights; indeed, I see that as the chief justification for continuing its use. As well, such use would fit entirely within the theme of his teaching career.
What I termed “disingenuous” was Obama’s assertion that signing statements “promote a healthy dialog between the executive branch and the Congress.”
How that may be, I cannot fathom.
Perhaps, Lab Dancer, you could explain it to me?
As I am not a lawyer, and, presumably, most all of wit and wisdom are to be found entirely within the province of those who are, I happily defer to your judgment and comfortably shall entertain any explanation you might wish to share. One notes, for example, that the vast majority of the Wisdoms in Congress are attorneys, and one may only imagine, given the large number of Bu$h Signing Statements, that they must have led to extensive and deeply thoughtful ‘dialog’ over the past eight years of Bushly rule.
Somehow, though, I must have missed that.
There you go looking backwards again EW. Don’t you know we are a forward-looking sunshine and rainbows sort of country now? Why I expect everyone to remove their rear-view and side mirrors from their cars, since what’s behind us poses no threat. Yeppers, I bet Detroit isn’t even making mirrors any more ; )
On the larger theme of Ms E Wheel’s query, it’s worthiness might be proven in the coming bubble of a new specialty for lawyers [per the Scott Horton at Harper’s]: “legal archeology”.
http://harpers.org/archive/2009/03/hbc-90004527
i have an idea.
how about we do away with signing statements altogether.
and how about we don’t use “the increased frequency of ‘omnibus’ bills being passed” as the excuse for justifying continuing to use signing statements.
signing statements, as they have come to be used, a just a way of telling the legislative branch “F***O**”. or, at best, just a cover for line-item vetoes.
it is beginning to bug me,
a lot,
that obama seems as retentive of his presidential powers as bush.
let’s see:
we don’t need the courts involved (in, e.g., extra-legal military detention, etc) because the executive and the legislative branches can do the job.
and
we don’t need the legislative branch involved in legislative details, other than to legitimize the president’s policy.
and
we don’t’ need the executive involved …
oh, i forgot. there are only three branches
and the executive is now el branch el supremo.
Big Branch Government
brought to you during our last two presidencies for your continued well-being and security.
i sure wish obama wasn’t so wet behind the ears.
Well, speaking of accounting — which black ops budget(s) held the money?
I very much look forward to learning the identities of Americans with ’secret’ Swiss bank accounts who hid money from the IRS; some of their names will be reported to the US government by the Swiss bank, UBS. I doubt we’ll ever get lucky enough to discover who paid for the data mining, but holding the money in private offshore accounts would certainly be one way to go.
Does seem inconsistent with Obama’s anti-secret law rhetoric. One would think lawyer-Obama would want his top people, top people, to go through the nearly one thousand signing statements and tell him as well as us which ones he rejects and which he adopts. Congress might to know too, so it can concur or override. Hard to do if you don’t know what the law is. And that’s before we get to how each was used by Bush to circumvent Congress.
Any bets on when Team Obama will get to that? Or would that be looking at the past? Ain’t it fun driving down the mountain with no rear view mirror so that we needn’t look behind to see how quickly that semi- is making up time on its cross-country run?
It used to be, so I understand, that signing statements were the President’s way of expressing his own understanding of what Congress intended in the bill.
If that’s what Obama wants to do with his signing statements, it’s okay with me.
I don’t think he’s planning to do like Bush, and treat signing statements as line-item vetos and judge-free interpretations of the law.
UGGGGGGGGGGGGGGGH that face MUG speeeeeeeeeeeeewwwww
YEAH.
were it not for the normal expectations of the excellent points made in this article, i’d have had to click the hell outa here at that alone!
(Thanks Marcy, but can we please now has “hold the simian nightmare meminders????)
ICK!
Siri ! Sadlyyes !
Did y’all catch Arianna on KO tonight ?
Arianna: “It all depends on who is in your F*ck Us Group !”
I think she meant to say Focus … *g*
Yes, there is no need for signing statements. Signing legislation is a black and white business. If the president feels the need to be more expressive, his press secretary can issue a press release. Done and over, until we get the line item veto.
“the nearly one thousand signing statements…”
How many of those were potentially pernicious in nature? I realize even one of them, used to circumnavigate the co-equal powers foundation, represents a potential constitutional crisis, but with so many, how do we sort out the ceremonial crap from the legal circumcisions?
Are they available to the public, or does it take a FOIA somersault to get them all on one page?
Seems as if there should be a website that dissects every signing statement (old OR new) with assorted blogs and comment sections to help the process along. Or is there something “out there” already?
By sorting them out, and identifying the more pointed statements, it might become apparent just how and when they were “used…” for mischief
They were all published in the Federal Register. The trick is with the shear volume of them how to even find them all. Savage found around 800 at the time of an article he wrote in late 2006 ( I think )
First declaring them all inoperative is a good start to halt the dead enders an JThomason says. Those moles are just looking for ways to mess up things and blame it on BO. As Congressman Henry R-VA says they are just trying to cut his popularity at this point. They have nothing else.
Watertiger is upstairs at the Mothership!
It’s Jets vs. Sharks in the RNC!
It seems to me if dead-enders are still operating effectively in the DOJ and other executive agencies, this approach to signing statement, for any other weaknesses it might have, is a way to undercut the underlying documentary basis for many of Bush’s dead-end policies.
It may even invite some who are now uncertain as the appropriate strategic orientation to take the trouble to check to see whether policy has in fact changed by otherwise leaving them without any defined cover.
Bushie used signing statements because he was too cowardly to actually veto something. Worst, a-skeeredest president evah.
It’s all part of the long process of restoring law, that’s all. Don’t know why some people thought it would happen over night.
Signing statements are not mentioned in the Constitution. End of subject. In fact, if I were an employee or agent of the government, I would NEVER want to COMPLETELY RELY on one as a legal cover for my actions. Why? Because it is only an interpretation of how a law should be conducted, not an absolute determination of how a law should be carried out, enforced, etc. That’s what we have the judiciary for…and the Congress…and, for that matter, and more practically, common sense, if not decency.
It’s pretty scary for a nation built on the rule of law not to be sure what its laws actually are. Luckily, you aren’t one of those any more, if you ever were.