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.”