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.”
You actually preempted my response with this:
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p>”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.”
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p>That pretty much makes my points. Of course, if we had the line-item veto at the federal level the President would be freer to do as Sen. Spector suggests and reject the objectionable portions outright. Remember also, that the President is absolutely entitled, and I would even say obligated to, take his own interpretation of the Constitution into account. After all, he did swear to preserve, protect, and defend it so unless there has been a clear judicial ruling to the contrary he would be on solid ground. I believe the SCOTUS has the final say on these matters, but not the only say.
is that you’re fine with the Bush approach. Because I don’t doubt that Bush honestly believed that his interpretation of the president’s authority was the correct one.
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p>That’s a bit harsh, no? And, altogether too black and white for the Blue Mass Group, doncha think?
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p>The two ‘approaches’ are exactly the same in only the most diffuse and generalized way. Kinda like when you squint, turn your head sideways, lower the lights and come to the conclusion that Barbara Bush is almost as pretty as Gwen Stefani…
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p>But Bush didn’t much bother trying to prove it, or convince the rest of us of the merits of it, now did he? Obama, at least, has laid out some principles and templates to use in attempt, it would seem, to convince us that he views the constitution in a reasonable way. Bush just did it. I fail to see how you can equate them. Nixon bombed Cambodia. Clinton bombed Kosovo. Equivalent?
No. Like I said, this memo is a PR stunt that is almost entirely content-free. It does not represent a change in policy in any meaningful sense.
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p>However, also as I said in the post, because AFAIK the Obama administration will not take as extreme a view of presidential constitutional authority as the Bush admin did, it will hopefully not be as much of a problem. But I don’t think there should be much credit given for this memo, which accomplishes nothing.
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p>Bush didn’t think his view of the Constitution was not “reasonable.” And he most certainly made Congress aware of his views. They ignored his views and passed the laws anyway. Then he issued his signing statements. The door remains wide open for that same course of events.
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p>BTW, I tried your suggestion of squinting and tilting my head at a Barbara Bush picture. Didn’t work. đŸ˜‰
you didn’t squint both eyes, just your right eye. Try this:
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Ideally, like I say, he should be able to selectively veto, but otherwise you have to throw out the good with the bad. Decisions about enforcement priority happen all the time. I believe these signing statements should be well-written arguments. I haven’t read any of the Bush statements, but always got the impression they had the attitude of “Congress can go jump in a lake” rather than “This is how I am going to handle this and why based on the following constitutional argument.” All three branches need to be vigilant in their prorogatives as the framers intended. If a certain provision is being ignored, Congress can/should pass legislation dealing only with that provision and see if the President will sign or veto it. If the President signs or it’s overriden and still takes a “so sue me” attitude, then someone should do exactly that. Move it through the courts and get a final verdict. If the President continues to clearly defy the Constitution, then there’s always impeachment.
If the President believes a part of a law is unConstitutional, he should do more than just issue a statement to that effect. If he doesn’t want to veto it (such as a good law that just has one small problematic area), then there should be a case filed with the Supreme Court or the DC District Court. If it’s truly unConstitutional, it should be stricken, not just ignored.
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p>Or somebody from Congress should file suit against the President to enforce the part of the law he’s ignoring. Either way, we need to get to the bottom of it and fix the problem. Ignoring an unConstitutional law just leaves it on the books for the next
Bushbad President to use to his own ends.Courts will dismiss cases that claim a law is unconstitutional unless the plaintiff can show they’ve been harmed by the law’s application.
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p>From The Devil’s Dictionary of Ambrose Bierce:
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Unfortunately, the president can’t just ask the federal courts for their views on constitutionality. The MA SJC allows the Governor and the legislature to ask for advisory opinions under certain circumstances, but the federal courts do not.
Seriously, has the executive branch actually brought suit in this fashion? I’m well aware that courts routinely turn down plaintiffs for lack of standing in this matter, but I would hope that, perhaps, the Executive might be an exception…?
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p>Congress might even have standing if the President won’t execute the laws he duly signed. “You can’t ignore that part!”
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p>Or is this all just a Lunarian fantasy?
Bush was too chickenshit to veto most bills. Let’s see if Obama has more spine, or will further obfuscate the law by using signing statements of unknown legal heft. I can see it now: the DOMA repeal gets to his desk and he signs with some “unless god is in the mix” craptastic statement to cover his butt with the fundies. just wait. he’ll do it.
I agree with David. Obama’s statements, heh, do not match his substance. If he really believed that signing statements were wrong, he could say so and abjure them. What he has done — claim that he doesn’t like signing statements while simultaneously reserving the right to use them whenever he wants — is to use weasel words to produce a distinction in search of a difference.
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p>It’s hard to carry the ring and not use it. Even Frodo failed in the end.
discussions on the New World Order sites point distinctly towards a future dystopian control freak world on a scale that makes Bush look like a choirboy. Incompetence may be one of Bush’s qualities to be looked back upon.
Of course they are in preserve the illusion mode now.
The way our government is currently set up, the office of the President has many, many avenues along which it can abuse its enforcement power. But short of a Constitutional Amendment, I fail to see what else Obama could do. A law?
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p>Dubya used signing statements to ignore the Constitution, so I doubt a future Dubya would hesitate to ignore this law while ignoring the Constitution. It’s the nature of a presidential system.
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p>The best defense against the abuse and misuse of signing statements is vigilance, and from 2001-2005 the media and the Congress — both parties — failed miserably. Our best hope is that won’t be soon repeated.
a power which was never granted him by the Constitution in the first place, a power which, so far as I can tell, appears to render meaningless the ability of Congress to override the president’s veto. Has the Supreme Court never weighed in on the executive’s “duty” to analyze the constitutionality of laws passed by congress?
And I am a little concerned with Obama’s tendency to be very publically opposed to something (what Bush did with his signing statements was questionable), and then subtley leave to door open to wavering (but I might use them too…)
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p>This reminds me of the issue of earmarks. The President proudly announced that his stimulus bill was free of earmarks, which it technically was, but there were examples of spending items that were targeted to certain pet projects. Okay, these spending items were not technically earmarks, but they were defacto earmarks. To publically and proudly tout an “earmark-free” bill seems disingenous. Then, Obama’s press sectretary makes it clear that the President will not veto the omnibus spending bill, even though it contains almost $8 billion of targeted, earmark spending on pet projects. Obama claimed during the election to be opposed to earmark spending and with his popularity and power, he could clearly put a stop to this kind of spending. But he’s not planning to.
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p>Sabutai is also right. It comes down to the media, Congress, and the public in forums like this to keep track and hold our elected officals accountable.
but there is no real way to hold the president accountable. bush, obama, whoever banks on the likelihood that you won’t vote against them for signing statements alone. this is one of those subjects that most people will forget about 10 minutes ago, if they ever bothered to question the press release at all.
in the Social Contract
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elect one of the candidates available, all of whom loosely collude to let themselves off the hook once in office, or we can have a revolution. americans are too well fed for a revolution. thus, we get this hopey president who dabbles in the same waters bush used as a bidet.
That’s awesome. đŸ˜€
When you do an intervention you need to know why you are doing it and how you do it. The purpose of the intervention is to bring the person back to reality to get him or her to treatment. Addicts are not in the same reality as regular people. They do not see the “world” as it is. The goal of the intervention is for the person to accept the reality of their substance addiction and to seek the right help. They would to look at those around them as to measure of how right or wrong their behaviors are. People that surround themselves with persons who are caught up in the grasp of substance addiction are not able to see the drastic lengths that their own dependence has come to. Their using “friends” are a duplicate of themselves, leading them to believe that their own actions are acceptable cause the environment accept them.
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tribhuvan
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p>Drug Intervention Pennsylvania-Drug Intervention Pennsylvania
Hello friend good post i like to read you post i thing just copy right please post care full in this site read this Obama reins in signing statements “There is no doubt that the practice of issuing such statements can be abused. Constitutional signing statements should not be used to suggest that the president will disregard statutory requirements on the basis of policy disagreements,” wrote Obama, who also overturned Bush’s restrictions yesterday on federal funding of embryonic stem cell research.
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p>”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,” the president pledged.
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StiveWaugh
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loan modification–loan modification
You miss the main point of this memo, which is that it is an instruction to departments of the executive branch telling them they are not allowed to rely on Bush’s singing statements to decide whether they’re complying with the law.
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p>Now, we should still take a look at what kinds of signing statements Obama issues, and whether they really are within the sound historical practice of “this appears to be a problem” or “this is ambiguous, I think it means ___”, or whether they’re being used to circumvent the law. AFAIK, Obama hasn’t done any of the latter yet; if he does, call him on it.
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p>But the purpose of this memo is to address the past: Bush did do plenty of the latter, and now the executive branch is being told “you can’t rely on that, please follow the law”, and instructed to consult with the Justice Department when they’re not sure.
If it were, it wouldn’t be buried at the end, after several paragraphs of Obama justifying why it’s OK that he continue to issue signing statements.
LOL typos are funny.
This presidency is turning into a three ring circus.
David was criticizing Obama. We do a lot of that around here, actually.
I agree that signing statements declaring the President’s views that various portions of statutes are themselves probably unconstitutional under the Take Care Clause, at least to the extent the President acts on the signing statements. (I suppose that if the President said that a law is unconstitutional but enforced it anyway, there would be no constitutional problem). But I think that as a practical matter, the proof will be in the pudding. If President Obama uses this kind of signing statement only in cases where he is singling out a particular provision stuck into an omnibus bill and not to aggrandize the power of the Executive, I’ll be less incensed than if he follows in President Bush’s footsteps. The use of omnibus bills does raise practical problems that create a pressure for the use of signing statements, line-item veto legislation, etc. The real answer to the signing statement problem is to reduce the need for them by more focused legislation. So I think Senator Specter’s indignation is a bit overdone.
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p>That being said, I agree with David that the President lacks the power to declare that he will refuse to enforce a statute on constitutional grounds.
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p>The signing statement issue is a little distinct from the “President Lincoln exception.” I think that in a truly exceptional situation, where the fate of the country is in the balance, the President can probably act extra-constitutionally. In my view, the overarching problem with the Bush administration was not so much with its notion that in an emergency, some things that are not ordinarily permissible become permissible. Rather, the problem was the mis-use of this idea in circumstances that turned out not to be an existential emergency of this kind, and the authorization of actions that are impermissible no matter what the emergency, e.g., torture.
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p>TedF