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President Obama issued a "Memorandum" on presidential signing statements yesterday. Some press reports seem to suggest that it represents a big departure from the controversial Bush practice of signing a bill and then issuing a statement saying that they weren't going to follow the parts that they thought infringed on the president's constitutional prerogatives.
I think, however, that the memorandum basically preserves the position that if the president believes that a part of a bill is unconstitutional, he can refuse to abide by it, even as he signs it into law. Here's what Obama says:
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.
Ah. And who will decide when it's an "appropriate" time to issue a signing statement? Why, the president, of course.
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.
Again, in considering whether to issue a signing statement, who will decide whether the president's interpretation of the Constitution is "well-founded"? That, too, would seem to be the president.
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.
And the "decider" as to whether the president's construction is "legitimate"? One guess.
I recognize that presidents have issued signing statements for many, many years. I also recognize that President Bush's view of the executive branch's authority was extraordinarily broad, and that consequently the Bush administration issued signing statements willy-nilly, since under their view any restraint on the executive branch's authority was unconstitutional. I don't expect the Obama administration to adopt that view, and I therefore don't expect President Obama to go nuts with signing statements the way Bush did.
But IMHO, this memorandum is basically a PR stunt. Despite some happy talk about taking "appropriate and timely steps, whenever practicable [there's a truck-sized loophole!], to inform the Congress of [the administration's] constitutional concerns about pending legislation," and that Obama "will strive to avoid the conclusion that any part of an enrolled bill is unconstitutional," the memorandum fully preserves the president's authority to decide that part of a duly enacted law is unconstitutional if the president thinks that's the case. That remains problematic -- really, there's nothing in the memorandum that would prevent an administration with a Bush-like view of the president's constitutional authority to issue exactly the statements that Bush did. I tend to agree with Senator Arlen Specter (R-PA), who was critical of the Bush administration's approach to signing statements, and remains so now.
"I think the Constitution is explicit as to how you handle these situations, and if the president thinks something is unconstitutional, then he ought to veto it," said Mr. Specter, an outspoken critic of Mr. Bush's signing statements.
He called the practice a "dodge" and "a disregard for the separation of powers and co-equal branches of government."
"It's just insulting," Mr. Specter said, "and there is no reason why we can't follow the Constitution even if it takes a few days more."
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