Don’t Rely on Bush’s Signing Statements, Obama Orders

[Pirate Smile]

Source: The New York Times

By CHARLIE SAVAGE
Published: March 9, 2009

WASHINGTON — Calling into question the legitimacy of all the signing statements that former President George W. Bush used to challenge new laws, 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.

But Mr. Obama also signaled that he intends to use signing statements himself if Congress sends him legislation that has provisions he decides are unconstitutional. He pledged to use a modest approach when doing so, but said there was a role for the practice if used appropriately.

“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,” Mr. Obama wrote in a memorandum to the heads of all departments and agencies in the executive branch. The document was obtained by The New York Times.

Mr. Obama’s directions marked the latest step in his administration’s effort to deal with a series of legal and policy disputes it inherited from the Bush administration. It came the same day that Mr. Obama lifted restrictions Mr. Bush had placed on federal financing for research that uses embryonic stem cells.




Read more: http://www.nytimes.com/2009/03/10/us/politics/10signing.html

[Towlie]

1. Using signing statements as they were originally meant to be used? What a concept!

[pleah]

2. K&R

[msongs]

3. constitution says presidents can only IMPLEMENT or veto legislation. Signing statements are

unconstitutional if they are used to alter implementation of passed legislation. Otherwise opinions of presidents are free.

Meet the new boss....

Msongs

[Abq_Sarah]

19. Yep.

The President doesn't have a line item veto and he can't use signing statements to nullify legislation that he has signed.

This is bullshit.

[ForPeace]

4. Why sign a bill into law at all if it's unconstitutional?

Wouldn't it be better to just not sign and send it back for revision than sign and say parts are unconstitutional. The President is not supposed to have line item veto. I think he should accept the whole bill or veto it.

[JackRiddler]

7. Correct. Use the frickin' veto, that's what it's there for. And if you sign it...

then only the courts may make "signing statements" interpreting or voiding that law, in the form of rulings.

[intaglio]

12. Imagine that after years of wrangling ...

... a law is passed that allows non-traditional couples to marry, but that due to poor drafting it can be read that all ministers of all faiths must perform such ceremonies; that does not matter what the personal beliefs of these ministers might be, they are under legal compulsion.

Pretty obviously this would be unconstitutional. Do you then veto the bill, despite it's necessity, knowing that it will be yet more years before these marriages will be treated as equal to traditional ones? Or do you sign it and cover the matter by appending a signing statement?

[No Elephants]

16. Congress is the ONLY legislative branch. Signing statements don't "cover" bad legislation.

[formercia]

5. Did President Obama Just cancel every one of Junior's Signing Statements?

That's what it sounds like to me.

[JackRiddler]

6. That's not what it says.

It says all of them are subject to Holder's review.

In other words, Obama's at least reserving the right to have it however he likes.

[defendandprotect]

8. Bush's Signing Statements should all be overturned by Congress . . which has ....

the responsibility to see that the legislation it passes is carried out

in the spirit and intent with which the laws were passed---!!!


Where has Congress been and where is it now --- ???

[yodermon]

9. Signing statements, by definition, are NOT part of the law, never have been, never can be.

They are opinion. That shrub issued some horrible, constitution-shredding OPINIONS pertaining to the laws he signed is horrible, and should be roundly criticized, but it only really matters if

1) Someone actually breaks the Law by following the orders of the Signing statement (has this ever happened?), and then uses the Signing statement in their defense, OR

2) Prosecutors decline to bring charges because they read the signing statement as de facto, part of the law. Or, a judge dismisses charges on such grounds, or otherwise gives legal weight to the content of the signing statement.

Have either of these ever happened? (Perhaps they have). It seems destined to end up in the Supreme court one day where they would find, as common sense dictates, that Signing Statements are opinion and nothing more.

Obama can opine all he wants regarding the laws he signs. They have no legal weight, and cannot.

[Bacchus39]

10. the executive agencies and departments are bound by the president's orders though

and even if SCOTUS ruled on them, the president could still issue them.

[stillcool]

11. Interesting opinions through this thread..

I am not versed in Constitutional law..so I'll provide another opinion by someone who is:

The Problem with Presidential Signing Statements: Their Use and Misuse by the Bush Administration
By JOHN W. DEAN
Friday, Jan. 13, 2006

Presidential signing statements are old news to anyone who has served in the White House counsel's office. Presidents have long used them to add their two cents when a law passed by Congress has provisions they do not like, yet they are not inclined to veto it. Nixon's statements, for example, often related to spending authorization laws which he felt were excessive and contrary to his fiscal policies.
----------------------------------------------------------
Relying On Command, Rather Than Persuasion

Phillip Cooper is a leading expert on signing statements. His 2002 book, By Order of the President: The Use and Abuse of Executive Direct Action, assesses the uses and abuses of signing statements by presidents Ronald Reagan, George H.W. Bush and Bill Clinton. Cooper has updated his material in a recent essay for the Presidential Studies Quarterly, to encompass the use of signing statements by now-President Bush as well.

By Cooper's count, George W. Bush issued 23 signing statements in 2001; 34 statements in 2002, raising 168 constitutional objections; 27 statements in 2003, raising 142 constitutional challenges, and 23 statements in 2004, raising 175 constitutional criticisms. In total, during his first term Bush raised a remarkable 505 constitutional challenges to various provisions of legislation that became law.
-----------------
Bush is using signing statements like line item vetoes. Yet the Supreme Court has held the line item vetoes are unconstitutional. In 1998, in Clinton v. New York, the High Court said a president had to veto an entire law: Even Congress, with its Line Item Veto Act, could not permit him to veto provisions he might not like.

The Court held the Line Item Veto Act unconstitutional in that it violated the Constitution's Presentment Clause. That Clause says that after a bill has passed both Houses, but "before it become a Law," it must be presented to the President, who "shall sign it" if he approves it, but "return it" - that is, veto the bill, in its entirety-- if he does not.

Following the Court's logic, and the spirit of the Presentment Clause, a president who finds part of a bill unconstitutional, ought to veto the entire bill -- not sign it with reservations in a way that attempts to effectively veto part (and only part) of the bill. Yet that is exactly what Bush is doing. The Presentment Clause makes clear that the veto power is to be used with respect to a bill in its entirety, not in part.

...and of course, there is much more....
http://writ.news.findlaw.com/dean/20060113.html

[D-Lee]

13. Pres. Obama's done an interesting take on a difficult problem

This approach looks like a good compromise of the various issues which arise when just thinking about the problem (i.e. no research here!).

If a "signing statement" is just part of the historical record (like a governor's memorandum when signing a bill into state law), one can't just change that record. We don't have time machines yet.

If it is more like an "executive order," there are established procedures for changing and revoking executive orders (which take time and effort). That approach would seem to give them more credence than they are worth -- and would leave them effective until revoked.

One other alternative, just declaring them improper exercises of executive authority, is a really wholesale approach which likely is needlessly combative. After all, once the bill was signed into law and not vetoed, it is presumably embodied into law. The un-vetoed law is law, with the negative "signing statement" sort of the equivalent of a playground tactic of crossing your fingers while making a promise --

So, don't rely on them and run any reliance by the AG is procedurally simple and has the advantage of alerting the AG and the White House of issues which arise where a signing statement is relevant to current issues. At the same time, one has to recognize that signing statements, previously very rare, were known to have been issued by Presidents other than Bush 2 ... and the announcement does attempt to craft a standard for when one might be used.

If you listen to the video clip of the Press Secretary's explanation, Prez Obama's signing statements will highlylight a constitutional problem, not attempt to invalidate or direct the administration to ignore a problematic provision. See the clip by clicking on the photo at http://rawstory.com/news/2008/Obama_order_seeks_to_undo_Bush_0309.html.

Sounds pretty clever by way of a compromise.

The academic and legal authorities will undoubtedly issue assessments in the future.

[No Elephants]

18. With whom is Pres. Obama "compromising" again?

[ConcernedCanuk]

14. Ya gotta remember President Obama IS a lawyer, and a very talented one

.
.
.

Dim-son just had a rich father . . . .

'nuff said

[No Elephants]

17. Not really. You are putting way too much emphasis on Obama's being a lawyer. So were

Alberto Gonzalez and John Yoo. From one lawyer to another, even from one Constitutional law professor to another, you find different opinions, analyzing the same language.

[Myrina]

15. 1 single signing statement: "Everything Bush did, is now undone. Forever."

:applause: