Controversy Grows Over Obama Signing Statements

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Monday, August 10, 2009 at 9:01 am

Despite President Obama’s previous criticism of former President George W. Bush’s “signing statements” that limit the president’s responsibility to comply with a bill passed by Congress, it turns out Obama has been doing much the same thing since he took office.  Charlie Savage reported in The New York Times on Sunday that Obama has issued “dozens” of signing statements that allow him to bypass specific provisions of congressional legislation the president doesn’t like. That’s angered members of Congress on both sides of the aisle, from Charles Grassley (R-Iowa) to Barney Frank (D-Mass.). The American Bar Association, meanwhile, has called the practice unconstitutional.

But are the statements signed by Obama really the same as those signed by Bush?

Not surprisingly, longtime Democratic administration lawyers don’t think so. Walter Dellinger, for example, who promoted the use of signing statements in the Clinton administration, says the difference is that Obama’s signing statements are based on sound interpretations of constitutional law.

Signing statements “long have been used to signal the President’s belief that some aspect of a piece of legislation is unconstitutional,” Dellinger wrote in a 2006 response to the ABA, along with former Clinton officials David Barron and Martin Lederman, both now in the Obama administration’s Office of Legal Counsel. The problem with Bush’s signing statements were not that they expressed constitutional reservations about laws passed by Congress, but that they reflected “the unjustifiable arrogation of power” that Bush asserted in office.

Given the officials that populated the Office of Legal Counsel in the Bush years, it’s not surprising that his signing statements may have crossed the line from legitimate reservations to unauthorized power grabs. Obama, who so far hasn’t argued for a “Unitary Executive” or other theories of far-reaching executive power, seems to be issuing statements that at least on their face comport with generally accepted understandings of the law.

Still, his first signing statement, limiting executive officials’ communications to Congress, illustrates the potential problem. In signing the bill, which prohibits executive officials from preventing or punishing government employees’ communications to Congress, Obama added: “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.”

The Brennan Center for Justice at New York University called that “a strike against transparency.” Noting that the law was written to protect government employees who blow the whistle on government misconduct, “allowing the heads of executive branch to ‘control’ the employees’ communications defeats the very purpose of the communications,” and thwarts Congress’ ability to exercise effective oversight. Moreover, notes the Brennan Center, the signing statement could have a chilling effect against potential whistleblowers, leaving them open to retaliation whenever the agency decides that the information revealed was “confidential.”

So Obama’s signing statements might not be unlawful, but at least some of them are politically questionable. Then again, they’re not really all that surprising. As Andrew Cohen of CBS News put it back in March when Obama issued his first of many such statements: “If you were hoping that the Obama team would come into the White House and aggressively undercut its own power it’s time to change dreams.”

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13 Comments

The Washington Independent » Controversy Grows Over Obama Signing … | kozmom news
Pingback posted August 10, 2009 @ 11:39 am

[...] Continued here: The Washington Independent » Controversy Grows Over Obama Signing … [...]


The Washington Independent » Controversy Grows Over Obama Signing …
Pingback posted August 10, 2009 @ 12:01 pm

[...] the whole story here: Daphne Eviatar aggregated by [...]


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Pingback posted August 10, 2009 @ 12:40 pm

[...] Controversy Grows Over Obama Signing Statements Despite President Obama’s previous criticism of former President George W. Bush’s “signing statements” that limit the president’s responsibility to comply with a bill passed by Congress, it turns out Obama has been doing much the same thing since he took office. [...]


The Washington Independent » Controversy Grows Over Obama Signing … : PlanetTalk.net - Learn the truth , no more lies
Pingback posted August 10, 2009 @ 12:49 pm

[...] Go here to read the rest: The Washington Independent » Controversy Grows Over Obama Signing … [...]


derzehn
Comment posted August 11, 2009 @ 5:13 pm

I'm wondering, is Daphne Eviatar (the author of this article) a calculating liar or just an incompetent hack? Charlie Savage did NOT say “Obama has issued “dozens” of signing statements that allow him to bypass specific provisions of congressional legislation.” What Savage said was: “President Obama has issued signing statements claiming the authority to bypass dozens of provisions of bills enacted into law since he took office.” And later: “Mr. Obama has attached signing statements to 5 of the 42 bills he has signed, focusing on 19 specific provisions.” And later: “He also challenged, without listing them, 'numerous provisions' in a budget bill requiring officials to obtain permission from a Congressional committee before spending money. It contained dozens of such requirements.” There's a difference. Get your facts straight, Sweetheart!


jaqueliner
Comment posted August 11, 2009 @ 10:18 pm

Maybe you can clarify what the purpose of those five signing statements were? Benign opinions on the President's views of a new (or altered) law – or do they circumvent that law in any manner?

Nonetheless, rather than focus on the grammatical (or purposeful) mis-characterization of Mr. Savage's comments, I feel it would behoove the country to talk about precendents and Stare Decisis. Using this as a guide, all of Bush's actions (including torture, pre-emptive war, signing statements, denial of H.C., etc.) are legal. Each time that President Obama follows the example of his predecessor, he confirms the legality of the precedent and makes the case for that action being legal stronger.

If you just breathed a sign of relief that Bush isn't going to be prosecuted and put through the legal test, I suggest you suck it back in as it means neither can Obama.

So whether there was one signing statement, five, seventeen, or a thousand – it matters little. What really matters is that the actions of Presidents Reagan, Bush Sr., Clinton, Bush Jr., and now Mr. Obama, have robbed a check and balance from the American people.

Last thing, derzehn; “sweetheart” only displays your inherent sexism, and loses the irony of your ending. I suggest you find alternatives that are biting and witty, but don't insult swaths of the poulace. You may find an audience which is more agreeable to your points – which are seemingly logically based.


derzehn
Comment posted August 13, 2009 @ 2:41 pm

I do not like signing statements, no matter who does them. I am not a Constitutional scholar, but it seems to me that the framers of the Constitution intended for the president to veto a bill if he didn't like it. They didn't say, “you can accept it with an asterisk if you don't like part of it.” They didn't specify exceptions to avoid legislative gridlock. If vetoes result in legislative gridlock, then we need to construct a Constitutionally acceptable solution, not an impromptu and Constitutionally suspect and unsupported signing statement. Despite what Bill Clinton's (and Bush's? and Obama's?) legal advisers have to say on the subject, a signing statement is, for all intents and purposes, functionally identical to a line item veto. The Supreme Court rejected that concept over 10 years ago.

But what if the legislation is veto-proof? What if the veto-proof legislation directs the president to undertake certain actions that threaten the Constitutional authority of the president? For example, what if a veto-proof law dictated the definition of Commander-in-Chief? Laws cannot do that. Laws do not trump the Constitution. If a president does NOT address this issue head-on in a signing statement, then isn't s/he tacitly accepting that Congress has the authority to re-imagine the Constitution via legislation? Isn't that a dangerous precedent?

So, what is the solution? I think the only current solution is the solution provided by the Constitution: if the president and the Congress disagree, the president is obligated to veto the law; if the president is unable to veto the law, then the president is obligated to refuse to enforce (or obey) the law (on Constitutional grounds) and must immediately challenge the law before the Supreme Court. If the Supreme Court rules against her/him, the president must immediately begin to enforce (or obey) the law.

I am a flaming liberal, but I do not take kindly to side-stepping the Constitution by either a conservative OR a liberal president. There be dragons we don't want to awaken. I was taking Daphne Eviatar to task for either intentional or extremely sloppy fact (mis)management. That is acceptable neither from a journalist nor from a commentator.

As to my “sweetheart” comment: I disagree; you are wrong. Worse: you are being Politically Correct. An insult is most effective when it demeans the subject. That is the intent of an insult. Just because it reduces this one person (at whom it was directed) to subordinate status, it does not logically follow that it is directed at all other persons of the same gender (or race or sexual orientation or other affiliation). (One of my favorite political commentators is Rachel Maddow; I hardly think my barb aimed at Daphne pricked Rachel in any manner whatsoever.) Stop being so sensitive about being a women; it's nothing to be ashamed of.


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American Compass » Re-branding the America’s Executive Branch
Pingback posted January 10, 2010 @ 5:40 pm

[...] After criticizing President Bush for issuing signing statements to bypass the legislative branch of government, the new President issues dozens of signing statements [...]


me
Comment posted February 12, 2010 @ 10:52 pm

do you have a link to the 'dozens' of signing statements? i didn't vote for Obama but when i looked it up i only found 7, 2 of those being

an act establishing the Ronald Reagan Centennial Commission and the “Military Spouses Residency Relief Act”

http://www.coherentbabble.com/listBHOall.htm


me
Comment posted February 13, 2010 @ 3:52 am

do you have a link to the 'dozens' of signing statements? i didn't vote for Obama but when i looked it up i only found 7, 2 of those being

an act establishing the Ronald Reagan Centennial Commission and the “Military Spouses Residency Relief Act”

http://www.coherentbabble.com/listBHOall.htm


Left-Right What is the Difference | The Web Resource
Pingback posted February 26, 2010 @ 3:43 pm

[...] un-patriot Patriot Act that Bush brought into power using a signing statement. Now it appears that Obama uses signing statements to his advantage as well, even though he promised not to use them in his campaign.  I mean the [...]


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Comment posted June 4, 2010 @ 8:23 am

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