Signing Statements Reappear in Obama White House

[steven johnson]

Source: Wall Street Journal

Democrats often criticized the Bush White House for its use of the presidential signing statement, a means by which the president can reject provisions of a bill he deems unconstitutional without vetoing the entire legislation. Now the approach is back.
President Barack Obama, after signing into law a $410 billion budget bill on Wednesday, declared five provisions in the bill to be unconstitutional and non-binding, including one that would effectively restrict U.S. troop deployments under U.N. command and another aimed at preventing punishment of whistleblowers...
Mr. Obama objected to one provision that would bar funding for the deployment of U.S. troops to United Nations peacekeeping missions under foreign command without the president's advice that such involvement is in the national interest. ..
Mr. Obama objected to another provision that would cut the salary of any federal officials who interfere with a whistleblower's communications with Congress. The


Read more: http://online.wsj.com/article/SB123688875576610955.html?mod=googlenews_wsj

---

I concluded long ago that Obama was more complicated than he appeared.

[av8rdave]

1. Big difference between expressing an opinion and declaring that one will not abide by the law

Signing statements were intended to allow a President to express his/her opinion in cases where it's anticipated it will be challenged in court.

Bush just used them to declare he was above the law.

BIG difference.

[msongs]

3. please tell us the article in the US constitution that gives authority to "signing statements". nt

[Bacchus39]

6. where in the US Constitution does it say SCOTUS decides what is constitutional?

they gave themselves that authority. a law passed by Congress does not supercede presidential powers under the Constitution.

yes, I know about vetos too, but vetos can be overriden.

[pnorman]

31. "Marbury v. Madison"

"Marbury v. Madison was the first time the Supreme Court declared something "unconstitutional," and established the concept of judicial review in the U.S. (the idea that courts may oversee and nullify the actions of another branch of government). The landmark decision helped define the "checks and balances" of the American form of government."

http://en.wikipedia.org/wiki/Marbury_v._Madison

A forceful Chief Justice (John Marshall) asserted it, and he essentially "got away with it". So it's now an integral part of our legal fabric. It was rightfully considered to be a blow aimed at what was then deemed (by the privileged classes) to be the "irresponsible mobocracy", but by slow & uncertain stages, democracy has been established in this country despite it. It would no doubt would take a Constitutional Amendment to change it.

pnorman

[Zhade]

39. Yeah... that's pretty basic government 101.

I'm stunned the poster didn't know that.

[Bacchus39]

41. I refered to Marbury twice further down. Its not in the Constitution is it?

Marbury gave the Supreme Court judicial review over laws passed by Congress. It does not give SCOTUS the power to decide what constitutes presidential power.

that's what Obama is asserting.

[No Elephants]

63. By giving the SCOTUS the power to decide cases and controversies arising

under federal law, the Constitution gave the SCOTUS the power to decide whatever it needed to decide in order to dispose of the case before it. That is inherent in the British legal system, which we adopted.

If you are arrested pursuant to a law, it is always a defense that the law does not exist or is invalid for some reason. Someone arrested for not using the "Colored" fountain, as required by a Jim Crow law, can raise the defense that the law is invalid because it violates the 14th amendment.

Before a court decides whether to set that person free or put him or her in prison, it HAS to decide whether the defense of unconstitutionality is valid or not.

So, inherent in the power to decide cases, which the Constitution does specifically grant, is the power to decide Constitutional issues that have arrived properly before a court.

You can argue that Obama's oath of office, also in the Constitution, requires him to decide Constitutionality as well.

[Supersedeas]

120. bingo

[crimsonblue]

101. one might argue...

that since the role of the Judiciary is to serve as a check on the other two branches, and since SCOTUS may overturn laws passed by the Legislature, then SCOTUS has the judicial review power to overturn assertions of power by the Executive Branch. In this country, ultimate authority lies not with the legislative nor executive branches, but with the judicial branch. There's a reason that the framers put SCOTUS in the Constitution as the supreme law of the land.

Article 3, Section 2: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.

Laws made by Congress are derived from the Constitution, and are therefore subject to judicial power. Also, the powers of the President are derived directly from the Constitution, and Executive interpretations and execution of laws are subject to judicial power.

-----
Now that's out of the way, the reason the signing statements were added by Obama was that certain provisions served to limit the Commander-in-Chief power of the Presidency, and as such, Obama was bound to object. Now, SCOTUS may intervene if a case is brought before the court which alleges that provisions deemed unconstitutional by signing statements in fact do not interfere with executive powers. SCOTUS may determine if the provisions do or do not interfere with Presidential powers, and SCOTUS has the power to limit the scope of presidential powers if it so chooses. Why is this? Rulings and determinations by SCOTUS are the law of the land and carry the full weight of the Constitution. Rulings of SCOTUS are the word of God in this country.

[pnorman]

59. Acording to recent reports, most Americans are woefully IGNORANT

of our history as well as our political institutions. That includes many collitch grads, even from prestigious schools. I would expect somewhat better from DU members, but I'd hesitate to put a figure on it.

Accordingly, I respond to such things to my best ability, and with little if any pejorative comment. This is my general policy, but goes DOUBLE on DU.

pnorman

[No Elephants]

62. Unlike a veto, a signing statement cannot be overridden. So, you can argue that a signing

statement subverts the Constitution. On the other hand, the President's oath of office requires him to defend the Constitution. So, there is a tension there.

[Bacchus39]

90. yes, and in general I really find no disagreement between our posts

on matters of law passed by Congress, the SCOTUS decides on the laws Constitionality. however, on the enactment of presidential authority given to him under the Constitution, the president decides.

I suppose the president could take the case to court and get a ruling on the constitutionality of the questionable provisions. However, if he did, he is conceding the Court has the authority to determine what constitutes presidential authority.

Obama is not conceding that.

[No Elephants]

106. Well, up until now, I was not trying to disagree. However, if you are suggesting that

the President is the final authority on what powers he has as President under the Constitution, The SCOTUS is the final authority on all Constitutional matters. It may choose not to decide an issue because of restraints it has imposed upon itself over the centuries, but those are self-imposed.

[Thothmes]

108. Sort like the last President?

[av8rdave]

99. I am unaware of anything in the Constitution referring to signing statements

Nor did I attempt to claim same.

I was merely referring to the "traditional" use of signing statements by Presidents in the past.

[No Elephants]

61. Obama said the provisions to which he objected were "nonbinding." Explain the

difference, please, between "I am not bound by this law" and "I don't have to obey this law."

Also, please explain how you know what signing statements were "intended" to do and by whom this intent was held.

[av8rdave]

98. I seem to recall that discussion on an NPR interview some years ago on the subject

I cannot off the top of my head recall the exact source. Have your people call my people.

[No Elephants]

105. A discussion years ago on Obama's signing statement? Sorry, no sale.

[av8rdave]

114. It was a discussion on Bush's use of signing statements as well as

how they had been used in the past.

How you concluded that has anything to do with Obama is beyond me.

Assumptions, by and large, are a bad thing.

[ananda]

2. This is not good.

Look .. he just willynilly declares something
that the legislature voted into law.. and the
legislature is by title and intent the lawmaking
body of the THREE branches of government.

[TacticalPeek]

7. I thought under the Constitution the courts, not the executive, declare laws unconstitutional?

So, whether this usurps legislative powers or judicial powers is the only question remaining.

:shrug:

[Bacchus39]

9. that was established in Marbury vs. Madison, not the Constitution

SCOTUS gave themselves that authority.

[TacticalPeek]

14. Right - a most famous case, God bless John Marshall.

I didn't say "in".

[No Elephants]

65. You didn't, but you could have if you wanted to Please see Post # 63.

[No Elephants]

66. That is your interpretation. The SCOTUS decides what the Constitution

says and means. It does not add anything.

The fact that something is not expressly stated in the Constitution doesn't mean it is not there. In any written document, from a poem to a contract to a statute, some things are express and some things are implied.

Please see my Post #63.

[alfredo]

102. He is saying that if these provisions in the law are enforced there could be

a challenge. The UN provision could put the US at odds with NATO, and there may have been some problem with the whistle blower law. Let's not pass judgement until we see the actual signing statement and the provisions he is objecting to. Of course there is the possibility he is just being a dick.

[Politicalboi]

4. I would rather have President Obama

Do signing statements. At least he KNOWS what the Constitution is. Bush NEVER had a clue.

[Rosa Luxemburg]

53. exactly, bush had no clue

[No Elephants]

67. Either it is Constitutional for a President to do so or it isn't. IMO, any other test

is dangerous.

Besides, it is not a matter of "knowing" what the Constitution says, but of intepretation.

And Presidents have lawyers. Gonzalez went to the same law school that Obama attended. And take a look at Yoo's vita. http://www.law.berkeley.edu/php-programs/faculty/facultyProfile.php?facID=235 You cannot say that they did not know what the Constitution says. They just did not interpret it in a way that most of here would prefer.

[aquart]

75. Dear sweet Lord.

So you WANT him to have the power of a dictator because he can read?????

This is what we get for not impeaching Bush. A clear precedent that the President can do any damn thing he pleases and there is no crime egregious enough to warrant impeachment which is the ONLY check on him.

Oh, goody. But it's okay if he can read.

Obama may be the saint you think he is but it is still true that absolute power corrupts absolutely.

Those signing statements confer absolute power.

And who was dumb enough to think any president would relinquish absolute power?

[Igel]

97. I'm with Elephant on this one.

There are a few things you can do when you think a law is unconstitutional, and most of us agree on them.

One thing you can do is simply not follow it. If you're a private citizen, you ignore it--and when you go to court you defend yourself on those grounds. SCOTUS chucks laws as unconstitutional from time to time. Sometimes the citizen is convicted.

Now, let's say you're a soldier. The CiC gives you an order. You find it to be wrong, and don't do it. Most would agree that soldiers shouldn't follow immoral orders, those against the laws of war. You go to court martial and you defend yourself on those grounds. Sometimes the soldier winds, sometimes he loses.

Now, let's say you're a civil servant working for the federal government. There's a law passed saying you have to do something. You think it's unconstitutional, immoral, wrong. Ah, but now you're a civil servant, so you *must* implement it? No, most here would continue the same line of reasoning: You act as a whistleblower, you don't do what's legally mandated because you think it's constitutionally wrong. You get fired or not, you get protected as a whistleblower or not.

Now, let's say you're POTUS. A law is passed saying you have to do something. You think it's unconstitutional, etc. Perhaps you think it infringes on a Constitutional right. Now suddenly all DUers agree that the president is bound by the law--until somebody brings a suit and SCOTUS clarifies it? Does this make any sense? In the cases cited, who, exactly, has standing to bring a lawsuit? Better to stick to the process: You act as a whistleblower, you don't do what's legally mandated because you think it's constitutionally wrong.

Then there are ambiguities. I've read signing statements, they usually deal not with rejecting a provision in toto but in resolving ambiguities and contradictions in the statutes, deciding which of several contradictory definitions you will apply in the absence of explicit Congressional instructions.

The logic gets convoluted beyond comprehension when people have to find a justification for one prez to issue such signing statements while denying another is forbidden from issuing them. I'm not even going to try to address that kind of hypocrisy--"we're always right, they're always wrong" strikes me as a bad premise for any syllogism.

You may think ignoring Congress is a * innovation; probably not, but just in case: It's not. The primary innovation from * is making them *explicit*, and the secondary innovation is forced by Congress. Clinton ignored a number of laws, and decided to implement laws in ways Congress didn't like. So did Bush I. Reagan. Carter. Etc. They just didn't write down their objections; I remember Clinton objecting to a few and saying he wouldn't implement the laws, but there was no signing statement, no political lightning rod. Nobody had standing to bring a suit, so he was completely in the clear. He didn't leave anything in addition to the legislative history. * was smarter in that particular way, to be honest, even if he was less politically astute.

The secondary innovation is a response to Congress. You pass a small, single-purpose bill, the prez can veto it. You pass a 2500 page bill covering 342 different issues, 32 of them crucial that you support and 8 that you think are unconstitutional, sure, you can veto it. But here's the problem: the only way to get the crucial bits passed in Congress was to give a lot of representatives and senators their pet amendments, and that took lots of wrangling. As a result, the bill passed 300-100 in the house and 80-19 in the senate. Veto it and nobody's going to want to unpack it, recalculate votes and go through all the wrangling again. You'll be overriden and have to resort to a signign statement and in the process create ill-will.

Watching the tug of war between Congress and the Presidency is a great pasttime. The writers of the Constitution left it vague, and Congress, by taking more control over the country has paradoxically weakened itself. When the president controls little the president needs little control--there's less to fight over, and the controls are simpler and more obvious. The president executes the laws, sure--but then the laws are simple, the execution reasonably straightforward. Sure there's room to wiggle, but not a whole lot. If you put all the wiggles together you don't have much movement. When the president controls a lot because the Congress has taken the power and left implement to the president (as they must), the laws are complex and the execution is complex. The power to set policy is an emergent property, the wiggles become bigger and vastly more numerous. One coordinated executive wiggle can shake the world. Can Congress control implementation? Nope. As with any computer code, the complexity increases beyond the ability of the programmers to maintain it. If you try to make the laws cinch down, to prevent wiggles, you inevitably wind up banning activities that must be permitted--so you wind up with the laws ignored. That's a bad precedent.

It's a lose-lose game. But it's a fun one to watch.

[caseymoz]

119. It depends on what the signing statement says.

Also, if a President pushes them too far, the SCOTUS will be brought in. What would be a fair ruling, I think, is that a signing statement cannot refuse to enforce provisions of the law with the claim that they infringe on executive power, and this would be an impeachable offense, but it can be refused on the basis that it violates rights. In both cases, the solution must be to bring it to the SCOTUS to rule on it.

Unfortunately, Obama is writing these signing statements directly to protect executive power. He needs to be snapped back by the Court, and these signing statements need to be reigned in.

I don't object to signing statements per se. I mean, the President has a right to make a statement about a law, let's face it. I object to Republican misuse of them going back to Reagan, who was the one who started to use them to evade or twist provisions in the law. To some extent, I also objected to Clinton's use of them. But Bush took them far beyond anybody and used it as a line-item veto.

BTW, do you know whose idea it was, in the Reagan administration, to use signing statements to avoid enforcing and to actually twist the laws? Current Justice Samuel Alito came up with the idea. Any wonder why Bush awarded him with a court nomination?

Bush was a dictator more for what he did in secret, but his signing statements should either have taken to court, he should have been re-instructed by further legislation, or he should have been impeached. Congress should have done something other than let him grab more power.

I am thankful that Bush was such an idiot, if there had been a competent man doing what his people did, we would have had people disappearing. But in his shadow, his people were preparing the Presidency to become a dictatorship, and he didn't do a damn thing about it.

[Swede Atlanta]

5. I'm torn.....

Would I rather have a President that states publicly which aspects of a law he considers questionable and therefore will not action/ignore or one that does it in secret? Neither. If the law is considered at all un-constitutional then the CIC needs to veto the bill and sent it back. This idea of "well I'm signing it but have no plan to enforce pages 400-900 is fucking ridiculous whether it is Barack or Shrubbie. This is not anticipated by our Founding Fathers.

[Submariner]

8. Huge difference

Obama works within the boundary of Constitutional law. Bush was an ignorant Dictator who spit on Constitutional law because it did not agree with his PNAC neocon world view of imperialistic domination. Bush had little knowledge of appropriate presidential duties. For someone with unearned legacy degrees from Yale and Harvard he and his cohorts did a remarkable job of maintaining power over his 8 years. First a SCOTUS appointment stealing the election from Gore, and then the Diebold steal of the Ohio electorate from Kerry. For a nation that puts so much weight om militaristic power, Bush as a draft dodging coward was able to game the system to beat 2 Vietnam veterans.

The Hague will take care of this draft dodging cowards ass in the years to come. Total slimeball.

[amandabeech]

42. I see this as an institutional issue,

and not one that should be applauded or jeered because of the political party or personality of whichever person occupies the office of the president.

[No Elephants]

71. Aren't you assuming the conclusion? The entire issue is whether a President

has the Constitutional power to declare a law duly passed by Congress unconstitutional or to say that he will not enforce it or be bound by it.

Even as to the specific actions taken, how do you decide that what he did was Constitutional? The Constitution gives Congress sole and exclusive power of the purse. Congress passes a law about withholding the salary of those who punish whistleblowers. Obama says he is not going to obey it. That is a complex Constitutional issue that you simply gloss right over when you assert that Obama is acting Constitutionally.

[Hannah Bell]

84. no difference except you like obama, others liked bush. neither should have the power.

[spamlet2002]

121. absolutely not

obama has already shown himself to be willing to take up the mantle of cheney's unitary executive, continuing the power for indefinite detention, and so forth. simply consult the excellent reporting at firedoglake, emptywheel, and of course glenn greenwald.

if he had tried to his current arguments for his behavior in his constitutional law lectures, he would have been laughed out of the hall. guaranteed.

interesting you mention the hague, because we wouldn't have to wait if obama simply asked his AG to uphold the laws already on the books pertaining to torture and conspiracy.

so i ask you: what kind of constitutional lawyer is too busy looking forward to defend egregious constitutional abuses of the last decade?

[Mr. Sparkle]

10. Wall Street Journal, hmmm, i will wait until a more reputable source reports on this

as with the wsj, there is a good chance that this is made up or a plant from the republicans.

[No Elephants]

77. Signing statements are a matter of public record.

[Mr. Sparkle]

103. Yeah, but under the Bush Administration they where considered a higher law.

so no matter what was in the bill, the sign statements super seeded it.

The ironic thing is that there is no provision for them in the Constitution so they don't really mean anything.

[No Elephants]

104. Yes, I understand signing statements. My point was that you need not wait for another source.

[Mr. Sparkle]

122. Sorry but the WSJ is trash. A part of the Murdock empire.

I will never use them as a reliable source.

[msongs]

11. duties of the president regarding legislation passed by congress ---->

Article 1 - The Legislative Branch
Section 7 - Revenue Bills, Legislative Process, Presidential Veto


All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

------------------------------
A president must either approve and sign a bill or return to the congress "...with his Objections...". It does not say he can rewrite the law and enforce it like he wants just because he writes an after the fact statement. President must return it with objections so congress can decide to alter the bill or override the veto.

The process for the president's OBJECTIONS is very clear and specific.

Msongs

[Bacchus39]

13. nope, a law passed by Congress cannot take away a president's constitutional authority

look at one of the provisions that President Obama objected to. the restriction of deployment of US forces under a UN command. It is the president's prerogative as Commander-in-Chief to make that decision on deployment, not the Congress.

[amandabeech]

43. Congress has the power of the purse. They can cut off funding on anything

any time they want.

They've threatened to cut off war funding before. Undoubtedly, one of these days they will.

[Bacchus39]

44. indeed they do n/t

s

[No Elephants]

82. Congress just tried to use its power of the purse to protect whistleblowers and Obama

just said that he wasn't going to obey that law.

[No Elephants]

76. You have not addressed msongs point in Post #11, namely the process the Constitution expressly

sets forth when a President disapproves of a law.

[primavera]

95. Which gives him a ground for vetoing the bill in entirety

But the line item veto is an authority given to no president and with good reason, as we saw with the shrub's abuse of the practice he incorrectly perceived to be within his rights. The ability to pass into law any passing fancy of the president's without the approval of Congress essentially negates the whole purpose of Congress. I don't care that Obama is a Democrat and that I would likely agree with his signing statements, you can't say that a practice is unlawful only when it doesn't coincide with your personal preferences. This is a foul practice, no matter who does it.

[struggle4progress]

45. I agree. If he finds some particular unconstitutional on its face, he should veto,

rather than to sign but refuse to honor the particulars

But Congress is not powerless against this, should they decide to send a message

[LynnTheDem]

12. Signing statements have ALWAYS BEEN IN the White House.

Only difference is, GEORGE W. bUSH did MORE signing statements than ALL presidents together before him.

But hey, trust that "LIBERAL MEDIA" to spin shit against Democrats.

[babylonsister]

20. Idiot son abused them. I doubt we'll see that happening now. nt

[No Elephants]

70. Depends on what you deem "abuse," doesn't it? Some might think

protecting those who punish whistleblowers is an abuse.

I don't think it can be that subjective. Either the President has the power to decide that he will not obey or enforce a law or he doesn't.

[No Elephants]

64. Incorrect. Until Reagan, signing statements were never used

to interpret law. They were more rhetorical than anything else, until Alito, then Reagan's counsel, suggested that the President could use them to give the Executive Branch more power. That is a huge substantive difference, way beyond just quantity.
And even Reagan did not use them to declare laws unconstitutional, nor did Alito suggest Reagan could legally do that. I could be wrong, but I don't think any President did that until Bush II. Even if I am wrong, no President did it before Bush I.

BTW, Monroe was the first to use a signing statement, so they did not "ALWAYS" exist. That is potentially significant because Washington had a role in the Constitution and his concern was that Congress not have all the power. Yet, he never used a signing statement. Neither did Jefferson or Adams. And, as stated, while Monroe through Carter used signing statements, they did not use them to interpret laws to give themselves more power or to declare laws unconstitutional, or to say that they were not going to be bound by, or enforce, them.

Obama is NOT in good company here, nor is tradition on his side. That said, he may be within his authority, but that issue is by no means cut and dried.

[No Elephants]

74. Time for editing expired by my post should have read that, until Reagan, signing statements

were never used to interpret law "this way." Presidents may have interpreted law rhetorically, but not to defy a duly enacted law.

[Generator]

15. Obama's a hypocrite

if that's what you mean by complicated. But that's okay though because it doesn't bother most of the people on this site. I never took an actual poll or nuthing but basically if our guy does it it's okay. Because as we've learned, absolute power is okay. It doesn't corrupt you if you are a Democrat. You only do good things then. ALL IS WELL. It is Obama in there. And as we know he will be president forever, oh wait-oh no on shit what happens when the next one comes? Never mind.

[TacticalPeek]

16. .

:clutches pearls:

[Bacchus39]

18. he's the president now, he's exercising his authority

but yeah,he's a politician too.

[No Elephants]

68. Your post assumes the conclusion. The issue with declaring laws unconstitutional in a

signing statement is whether or not the President has that authority in the first place. If he does (and he may), then there's no issue at all. If he doesn't, then he's no better than Bush.

[stillcool]

21. Are you familiar with signing statements..

and the history of their use in our government? You don't like Obama, that's fine...but 'signing statements' are not a Bush phenomenon..they are just a tool that Bush abused.

[Generator]

25. Yes I am well aware

I don't find the "Clinton did it" or "Bush did it" excuse promising. If I don't agree with signing statements, it doesn't matter who does it. That's why I am not a hypocrite on this but many here are. And I disagree strongly with the very statements mentioned in this very op that Obama just penned.

I happen to "like" Obama fine. Everyone on this damn site thinks it's some popularity contest. It's not about Obama personally. That is another pointless thing used here in every damn post that is critical of Obam. It is about lives to me. Obama is also quite the hypocrite on civil liberties and torture as well. I don't care that another Democrat tortured or did blank that was wrong either. That is not a valid excuse. That is the logic used by the far right and I am sick of seeing it used here.

[stillcool]

29. Well how about...

The Jackson and Tyler Administrations, and later Presidents, including Lincoln, Andrew Johnson, Theodore Roosevelt, Wilson, Franklin Roosevelt, Truman, Eisenhower, Lyndon Johnson, Nixon, Ford and Carter?


http://www.usdoj.gov/olc/signing.htm

[Bacchus39]

33. again, he is simply maintaining his authority as president. why is that troubling?

he may even agree personally with the provisions that he says are unconstitutional.

he is saying you have no authority to direct me a manner that is my prerogative as president.

[No Elephants]

78. That is not accurate. Please see posts 64 (74), 72., 76 and 78 . You cannot lump together

a signing statement that says "Isn't this a great law?" or one that says, "I'm signing this, but I think it stinks," with signing statements that say, "I am signing this law, but it does not bind me and I am not going to obey or enforce it."

[stillcool]

93. What is not accurate about the use..

of signing statements throughout our countries history?
http://www.usdoj.gov/olc/signing.htm

[No Elephants]

109. Please see the post to which you are responding and the posts cited therein.,

[babylonsister]

27. We know your opinion. Here's a different one, and a primer...

http://www.prospect.org/csnc/blogs/tapped_archive?month=03&year=2009&base_name=a_slap_in_the_signing_statemen

A SLAP IN THE SIGNING STATEMENT?

President Obama issued his first signing statement yesterday as he approved this year's omnibus appropriations legislation. Signing statements are issued by presidents signing legislation that identify provisions they interpret as unconstitutional and thus will not enforce, but don't feel are troublesome enough to veto an entire bill. President Bush, however, abused this privilege, using signing statements to make policy changes. Charlie Savage won a Pulitzer prize for his reporting on this story, and now brings his sights to bear on the new administration's practice.

Jon Henke calls foul, suggesting that Obama has contradicted campaign statements like, "We're not going to use signing statements as a way of doing an end-run around Congress." But after reading the administration's policy on signing statements, the first signing statement itself {PDF} and Savage's reporting, I do think that the new administration has been careful to strictly limit their exceptions to basic constitutional issues and not use the privilege to make policy. Compare Bush's signing statements, many of which revolved around ignoring congressional oversight in matters of war and torture, to Obama's perhaps most controversial exception, in which he accepts as merely advisory congressional ideas on re-allocating appropriated funds. It's clear, I think, that signing statements are both useful and capable of being abused, so each one should be scrutinized carefully by the press and the public.

Henke also goes on to criticize legislative bundling, the practice that puts the president in the position of not wanting to veto an entire bill for the sake of one unconstitutional provision. I think he vastly understates the time it would take for both the entire Congress and the president to approve each item in hugely complex federal legislation, or perhaps doesn't understand how much scrutiny these bills already undergo in committee. Why would we tolerate the current status quo, which is certainly not ideal? Well, this is the central government of a hugely rich and powerful country, and its policy-making does and should reflect the complexities of the United States. As a conservative, Henke doesn't feel that central government should be so complex -- and perhaps the idea of a paralyzed Congress appeals to him -- but that's a first principles debate for another day. The other issue is that in legislation like appropriations bills, which are tied into the overall budget process, it makes sense to consider these things as a whole after Congress has put them together.

-- Tim Fernholz

[No Elephants]

69. I am keeping an open mind on this issue of whether signing statements are

Constitutional or not, but why is Tim Fernholz the final authority on Constitutional matters, to the extent that you refer to his writings on this subject as "a primer?"

The only distinction Fernhoz is making in what you quoted is whether a signing statement is making policy or not making policy. He does not even address the issue of whether the President has the authority to declare a law unconstitutional and nonbinding via a signing statement. That is a huge issue.

No President before Reagan assumed that he had the power to affect law via a signing statement, including the Presidents involved in the Constitution. Until Reagan, signing statements were purely rhetorical, not substantive. Then, Alito told Reagan that Reagan might be able to increase the power of the Executive by using signing statements to INTERPRET law. Even that duo did not assert that the Executive had the power to ignore laws or declare them unconstitutional. I think Bush II was the very first to do that. If not, maybe it was Bush I. Either way, the history of this practice is not a great comfort, even to the staunchest of Obama's defenders.

The issue is not one that the Supreme Court has squarely decided. Yet, Fernholz ignores it and focuses on policy making--which, P.S., the Executive Branch also does all the time.

The most that can be said fairly is that Fernholz has a different view of signing statements than the poster to whom you were responding has.

[Proud Liberal Dem]

51. Did he say that he would swear off signing statements?

I don't remember him saying anything during the campaign about not ever issuing signing statements and if he did, then, yeah, he's a hypocrite. However, specifically addressing "signing statements", I don't recall signing statements being a huge issue in regards to any presidents (including Clinton) until Bushco came to town and he explicitly utilized them to flaunt whatever parts of the law he (and Cheney, Yoo, Addington, et. al) wanted to whenever they felt like it. I'm not sure where they come from in the Constitution but if they're unconstitutional, maybe somebody should take it to court? :shrug:
My understanding of them is that they are usually supposed to be an advisory statement regarding the law made by the President and NOT a re-write and/or re-interpretation of the law. Come to think of it, I never even heard of them until they started flying out of Bushco's (mis-)administration, particularly when he stopped being able to get legislation in the form that he wanted out of Congress.

I don't get the impression that Obama intends to use signing statements as frequently or in the same manner but, hey, I COULD be wrong (I can admit that I've been wrong before) and maybe Obama is actually NO better than Bush. :shrug:

[No Elephants]

85. Congress is the only one that could take Obama to court for not enforcing its laws. No one

else has "standing" in federal court, as "standing" defined by the SCOTUS.

Obama's been in office 50 whole days he's already used a signing statement in the exact same way as Bush II did. That does not give me a warm, fuzzy feeling about the future. Rather, it suggests to me that he will do this whenever he feels that he should not have to obey parts of a law that Congress passed.

[Bacchus39]

91. he's asserting presidential authority, not trying to be like Bush

and COngress has no right to usurp or limit his authority. Laws do not supercede constitutional provisions, laws are obstensibly derived from them.

[No Elephants]

111. His assertion of Presidential authority in that kind of signing statement is like George W. Bush and

no other President.


As far as laws not superseding Constitutional provisons, I never said they did, nor would I ever say that. And that is not the point anyway.

The question is, when he gets a bill that he feels infringes inappropriately on his authority, what are his Constitutional options in reacting to that bill? Does the Constitution give him the authority to invalidate parts of laws via a signing statement or are his only Constitutional powers/choices to approve in toto, veto in toto or pocket veto in toto. And please see msongs post again.

Once the appropriate process is used, there is the question of whether the President's view of Congress infringing Presidential powers and what he may do about that infringementwas correct. He is not infallible. If Congress disagrees with his view on a law or his ability to pick and choose parts of a bill instead of vetoing in toto, Congress can take the President to court.

[stillcool]

17. Signing Statements...

Interesting early statements that include discussions about presidential doubt about legislation and the issue of how the president should proceed are found from Andrew Jackson, John Tyler, James K. Polk, and Ulysses Grant. A brief overview can be found in the ABA Task Force cited below.

Monroe’s messages did not look like what are today considered “signing statement.” Rather he informed Congress in a message January 17, 1822, that he had resolved what he saw as a confusion in the law in a way that the thought was consistent with his constitutional authority. http://www.presidency.ucsb.edu/ws/index.php?pid=66281

Even more forcefully, Monroe sent another message dated April 6, 1822, (that refers to his January 17, 1822 message as having “imperfectly explained” his concerns) stating “If the right of the President to fill these original vacancies by the selection of officers from any branch of the whole military establishment was denied, he would be compelled to place in them officers of the same grade whose corps had been reduced, and they with them. The effect, therefore, of the law as to those appointments would be to legislate into office men who had been already legislated out of office, taking from the President all agency in their appointment. Such a construction would not only be subversive of the obvious principles of the Constitution, but utterly inconsistent with the spirit of the law itself, since it would provide offices for a particular grade, and fix every member of that grade in those offices, at a time when every other grade was reduced, and among them generals and other officers of the highest merit. It would also defeat every object of selection, since colonels of infantry would be placed at the head of regiments of artillery, a service in which they might have had no experience, and for which they might in consequence be unqualified.” http://www.presidency.ucsb.edu/ws/index.php?pid=66303

In May 1830, Andrew Jackson wrote an message to the House stating his understanding of the limits of an appropriation: “the phraseology of the section which appropriates the sum of $8,000 for the road from Detroit to Chicago may be construed to authorize the application of the appropriation for the continuance of the road beyond the limits of the Territory of Michigan, I desire to be understood as having approved this bill with the understanding that the road authorized by this section is not to be extended beyond the limits of the said Territory.” http://www.presidency.ucsb.edu/ws/index.php?pid=66775

Tyler, issued a prototypical “reluctant” signing statement, in which he signs a piece of legislation concerning legislative apportionment while announcing, for the record, that he thinks it is unconstitutional: http://www.presidency.ucsb.edu/ws/index.php?pid=67545

Polk in 1848 similarly warned that while he was signing legislation that established a government in the Oregon territory prohibiting slavery, that he would not have signed similar legislation that involved New Mexico and California south of the “Missouri Compromise Line”: http://www.presidency.ucsb.edu/ws/index.php?pid=68034

here's another explanation
http://www.usdoj.gov/olc/signing.htm

[Bacchus39]

22. Andrew Jackson blatantly ignored a Supreme Court ruling on the removal of the Cherokee

if I have my history correct, this was the "Trail of Tears" where Jackson marched the Cherokee from Georgia to Oklahoma ignoring a SCOTUS ruling that it was unconstitutional.

while this was blatantly UNconstitutional by anyone's standards these days, a president deciding what violates his authority doesn't seem particularly nefarious. why can Congress pass laws that they know will not be deemed constitutional, and why does SCOTUS decide? the president is always going to assert his authority.

[stillcool]

26. I can understand signing statements..

that reflect a President's opposition to what he/she perceives as Constitutionality flawed provisions, or certain language in a bill, but I don't understand why the President has the power to revise it. It seems to me if the Congress writes legislation, they should be the ones who amend or correct it.

[Bacchus39]

30. that was Jefferson's position in Marbury vs. Madison

that the Congress should decide what was constitutional.

just remember we are talking about the powers of the president in the Constitution versus his obligation as president to uphold the laws passed by Congress which is his constitutional obligation to do.

[amandabeech]

46. If you want to overturn "Marbury v. Madison"

I suggest that you vote for the most conservative Republican out there.

They believe in the unitary executive, after all.

[Bacchus39]

48. Marbury gave the courts judicial review over laws passed by Congress

and signed by the president if that was the case. It does not give SCOTUS the ability to decide what constitutes executive powers.

again, the article gives a good example regarding deployment of troops under UN command. the law says the president can't place US forces under UN command. President Obama said, no way, I alone decide how to deploy the military pursuant to my powers as president.

[amandabeech]

50. Is that what they taught you in law school? n/t

[Bacchus39]

52. you are free to give us your take n/t

s

[No Elephants]

116. Congress should and so should the President. They all take oaths

to preserve, defend and uphold the Constitution (or words to that effect). So do federal judges. However, the Constitution is a legal document and, in our legal system, the final say on what a legal document says and means rests with courts, whether it is a contract or a Constituion.

The exception is a statute that was written by Congress to begin with. As to those, Congress has the final say. If nothing else, it can pass a new statute that overrules the Court's interpretation.

Courts also have the authority in our legal system to decide whatever it is that they have to decide in order to dispose of a case that has properly come before the court.

It would be bizarre in our legal system, and also a violation of the oath that the Justices take, if the SCOTUS had to decide a case involving an order from a President that violated the Constitution and then simply enforced the unconstitutional order.

By the way, if this is the quote from Jefferson to which you are referring, your description of it does not seem accurate.

"The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches."

—Thomas Jefferson to W. H. Torrance, 1815. ME 14:303

He seems to be saying that all three branches decide, which is true. However, some branch has to have the final say and, for the reasons stated earlier in this post, that is the SCOTUS.

[No Elephants]

73. A President's IGNORING a SCOTUS decision is different from

a President's declaring in a signing statement that a duly enacted law of Congress is unconstitutional and does not bind him.

Eisenhower initially ignored a SCOTUS ruling on integrating schools. That does not mean that Eisenhower had the Constitutional authority to do that, anymore than George Wallace had it.

But, again, this thread is about (1) laws of Congress and signing statements, not (2)SCOTUS decisions and ignoring. (1) presents entirely different legal and factual issues than (20 presents.

[No Elephants]

72. I would not go by a Department of Justice explanation. Obviously, the D of J is

going to back up the President.

As far as the other article, it cites nothing comparable to a President's claiming that a duly enacted law of Congress does not bind him or that he is not going to enforce it. They're more like "jawboning" by a President of Congress, as in "i'm signing this, but I won't sign a bill that goes any further." Big deal.

And even though Tyler claimed he thought the law was unconstitutional, he signed it when he could have vetoed it, so Lord only knows what that was about.

Nothing but bombast.

No defiance of a duly enacted law, no declaration that a duly enacted law does not bind the Executive and no refusal to enforce a duly enacted law. Tradition is not on the side of those things.

[stillcool]

94. I'm sure you have a better source..

THE LEGAL SIGNIFICANCE OF PRESIDENTIAL
SIGNING STATEMENTS

Many Presidents have used signing statements to make substantive legal, constitutional, or administrative pronouncements on the bill being signed. Although the recent practice of issuing signing statements to create "legislative history" remains controversial, the other uses of Presidential signing statements generally serve legitimate and defensible purposes.

November 3, 1993

MEMORANDUM FOR BERNARD N. NUSSBAUM,
COUNSEL TO THE PRESIDENT

[No Elephants]

107. Nussbaum is not supporting your claim either. I said "rhetorical." He is saying

"pronouncements." Same difference.

Nussbaum is NOT saying that the President may sign a law while saying he is not going to obey it. Not even close.

And again, you have chosen a source, counsel to the President, whose job it is to support the President, much like the D Of J.

BTW, posting a source that actually supports your assertions or a source contradicts them is not my job Either you support your own assertions or they stand unsupported.

You say that Obama's and Bush's use of the signing statement has always existed. If that were true, finding evidence of such signing statements should be relatively easy.

So far, though, your sources have not supported your claims. Perhaps you were mistaken. If so, It's not a sin.

[stillcool]

113. The 'source' I provided...

is the only one I found on the use of 'signing statements' through-out our history. I believe that signing statements should be used to point out unconstitutional provisions or language in a bill, but I think if a President should either sign the bill as it, with his/her objection noted, or send it back to be revised. I found the link I provided beneficial to understanding the practice. Sorry you didn't.

[TankLV]

19. This is a crock...for EIGHT FUCKING YEARS these media WHORES looked the other way...

and now that a Democrat is in, they suddenly got religion?

I think the whole fucking thing is suspect unless another source reports it...

[Bacchus39]

24. here is another source

http://news.yahoo.com/s/ap/obama_spending

[babylonsister]

32. See #27 for a different POV. nt

[Grinchie]

47. Yeah, 8 years and hundreds of Bush infractions, we eventually hear about them.

Now we have some that actually make sense, and Specter and others start sniveling like pussies.

And there is Rupert Murdoch to dry their tears.

[EFerrari]

54. I agree with you about the WSJ.

[Phlem]

23. Exactly

Generator.

I like Obama and all but let's not ignore the big picture. Same goes for prosecution, either it will happen and future Presidents are bound, or it doesn't and it's a fricken free for all with who knows who the next guy will be.

Outside of party lines and as American citizens we need to look out for us, always. The pressure needs to be on permanently on because the other guy's have greed and deep pockets working on they're side.

This is the never ending war.

phlem

[NoodleyAppendage]

28. Signing statements or not. Why is he refusing to protect whistleblowers???

WTF? I can't understand why he would want to scrub a provision protecting whistleblowers.

J

[stillcool]

35. That one got me too...

Can't Congress write a Whistle-blower Protection Law..post haste?

[No Elephants]

80. Isn't that what Congress just tried to do and Obama just wrote a signing statement about? There are

I believe, other whistleblower protection laws, but Congress tried to impose an economic sanction on those who punish whistleblowers and Obama simply said he wasn't going to obey it.

[stillcool]

92. no..it was part of the budget bill...

and Obama said he had a problem with the Constitutionality of the way the provision was written.

[No Elephants]

110. What difference does it make which bill it was in? It's constitutional or it isn't. All kinds of

things get put into all kinds of bills all the time. And the protection that Congress was trying to afford whistleblowers had to do with the salary of those punishing them, so it was not inappropriate to stick into the budget bill.

[stillcool]

112. I haven't read what the President...

found in the language that was unconstitutional but it surely isn't difficult to write up another is it?

[No Elephants]

115. Well, you really do have to read what the President said about that before you

can decide whether or not it would be easy to re-write that provision so that he'd approve it. The problem is not one of just wording or semantics.

From http://emptywheel.firedoglake.com/2009/03/12/obamas-signing-statement-disappears-whistleblowers/


"The provision I'm most worried about, however, is one on whistleblowers. You see, the President who has promised transparency, apparently doesn't want transparency to Congress when an executive agency fucks up.

He also raised concerns about a section that establishes whistle-blower protections for federal employees who give information to Congress.

“I do not interpret this provision,” he wrote, “to detract from my authority to direct the heads of executive departments to supervise, control and correct employees’ communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.”

This strikes at the heart of efforts to fix some of our intelligence failures and abuses by making it possible for Congress to learn about them before it's too late.

I guess all that transparency Obama talked about was only for the things he wanted us to learn about. "

[stillcool]

117. I read that the other day....

I also saw something different here, that had the other signing statements as well. Since they were excerpts and were interpreted quite differently I can not make any judgment without knowing what the language was in the bill. Sorry to disappoint.

[No Elephants]

118. No disappointment whatever. It's not rocket science.

[Bacchus39]

37. don't mistake this as a policy position n/t

s

[No Elephants]

81. Semantics?

[MilesColtrane]

96. Yes. Obama apparently doesn't believe that Congress should have the right to cut the salary...

of someone who works of the President. And, he may have a point there.

It's not a good idea to set the precedent of Congress having control over individual salaries and promotions/demotions of Executive branch employees.

A law that levies a fine on those who try to quash whistleblowers would have about the same punitive effect and wouldn't raise these Constitutional issues.

[Zhade]

40. THANK you.

NT!

[babylonsister]

34. You 'concluded'? What does that mean? And welcome to DU. nt

[rug]

36. Why sign the damned bill if it's unconstitutional.

[4lbs]

38. Did anyone even bother to read the text of the statement and try to understand why he wrote it?

Or is it easier just to call him a failure already?

[No Elephants]

79. We understand why he wrote it. He wrote it to protect the power of the

Executive Branch against what he believes is an unconstitutional incursion by Congress. For that matter, we can all understand why Congress wrote a law punishing those who punish whistleblowers. Good or bad motives are not the issue.

The issue is not WHY he wrote it, but whether the Constitution gives him the power to do anything but approve a bill or veto it.

In other words, his signing statements may be an unconstituional incursion by the Executive against Congressional power and perhaps Judicial power, too.

Not saying signing statements are unconstitutional (or constitutional). I'm keeping an open mind. Just saying that it's a serious Constitutional issue.

[SpartanDem]

49. Of course they didn't read

that wouldn't allow them go in bitchy panic mode. Instead of going White House's webiste and actaully READING what he wrote it'd just easier to spout off wildly how he just like Bush.

http://www.whitehouse.gov/the_press_office/Statement-from-the-President-on-the-signing-of-HR-1105/


STATEMENT BY THE PRESIDENT

Today I have signed into law H.R. 1105, the "Omnibus Appropriations Act, 2009." This bill completes the work of last year by providing the funding necessary for the smooth operation of our Nation's Government.

As I announced this past Monday, 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.

Foreign Affairs. Certain provisions of the bill, in titles I and IV of Division B, title IV of Division E, and title VII of Division H, would unduly interfere with my constitutional authority in the area of foreign affairs by effectively directing the Executive on how to proceed or not proceed in negotiations or discussions with international organizations and foreign governments. I will not treat these provisions as limiting my ability to negotiate and enter into agreements with foreign nations.

United Nations Peacekeeping Missions. Section 7050 in Division H prohibits the use of certain funds for the use of the Armed Forces in United Nations peacekeeping missions under the command or operational control of a foreign national unless my military advisers have recommended to me that such involvement is in the national interests of the United States. This provision raises constitutional concerns by constraining my choice of particular persons to perform specific command functions in military missions, by conditioning the exercise of my authority as Commander in Chief on the recommendations of subordinates within the military chain of command, and by constraining my diplomatic negotiating authority. Accordingly, I will apply this provision consistent with my constitutional authority and responsibilities.

Executive Authority to Control Communications with the Congress. Sections 714(1) and 714(2) in Division D prohibit the use of appropriations to pay the salary of any Federal officer or employee who interferes with or prohibits certain communications between Federal employees and Members of Congress. I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees' communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.

Legislative Aggrandizements (committee-approval requirements). Numerous provisions of the legislation purport to condition the authority of officers to spend or reallocate funds on the approval of congressional committees. These are impermissible forms of legislative aggrandizement in the execution of the laws other than by enactment of statutes. Therefore, although my Administration will notify the relevant committees before taking the specified actions, and will accord the recommendations of such committees all appropriate and serious consideration, spending decisions shall not be treated as dependent on the approval of congressional committees. Likewise, one other provision gives congressional committees the power to establish guidelines for funding costs associated with implementing security improvements to buildings. Executive officials shall treat such guidelines as advisory. Yet another provision requires the Secretary of the Treasury to accede to all requests of a Board of Trustees that contains congressional representatives. The Secretary shall treat such requests as nonbinding.

Recommendations Clause Concerns. Several provisions of the Act (including sections 211 and 224(b) of title II of Division I, and section 713 in Division A), effectively purport to require me and other executive officers to submit budget requests to the Congress in particular forms. Because the Constitution gives the President the discretion to recommend only "such Measures as he shall judge necessary and expedient" (Article II, section 3 of the Constitution), the specified officers and I shall treat these directions as precatory.
BARACK OBAMA

THE WHITE HOUSE,
March 11, 2009.

[EFerrari]

55. Right! Because the content justifies the act. Got it!

[Bacchus39]

57. there is nothing to justify. the provisions usurp his authority

and President decides that.

Congress can put any well-meaning or outright dumb provision in an act.

[w4rma]

56. These 4 statements are much different from Bush's signing statements that arbitrarily ignore laws.nt

[Bacchus39]

58. but the assertion is essentially the same

the president decides if a provision violates his authority the content of the law notwithstanding.

[No Elephants]

86. How is this signing statement different from Bush's? Both Bush and Obama

are relying on the Constitution to say that the Executive does not have to obey a law passed by Congress and signed by the President.

[nolabels]

60. This is SWEET, Obama takes congress to school, nice

Remind me to send Obama an apple already. Me don't think the those right wing constructionist are going to like Mr Obama in the future too much :evilgrin:

[No Elephants]

87. I hope you simply forgot to include the "sarcasm" emote.

[No Elephants]

83. Please see post 79.

[No Elephants]

88. This is not change and it does not make me hope. Ditto the positions of Holder's

D of J. Ditto a lot of the corporate, lobbyist and/or Clinton retread appointments.

[Rebellious Republican]

89. How does it feel now that the shoe is on the other foot!

:evilgrin:

[crimsonblue]

100. If you think every part of every bill passed by Congress is Constitutional...

you'd be wrong. Just because Congress makes it law doesn't make it Constitutional. Until we have the Judiciary reviewing and determining the Constitutionality of every law as it is passed, it will be up to the President to preserve and protect the Constitution by objecting to UnConstitutional provisions. BTW, I am completely in favor of increasing the size of the Judiciary to allow for exactly this sort of thing. Why can't we have a division of the Judiciary that works solely on pre-determining Constitutionality of laws? We could still have SCOTUS, which can obviously overrule lesser judicial determinations, and this would prevent a lot of the clog currently inherent in the judicial system.