Posts Tagged ‘president’

Obama’s Policy on Signing Statements

March 9, 2009

Today, President Obama issued a Memorandum to Heads of Executive Departments and Agencies on the use of signing statements in his administration.  So far as we can tell, no prior administration has ever issued a formal policy regarding signing statements.  Plainly, this one has been prompted by the extravagant use of these statements by President Bush:  during his first six and a half years, President Bush used signing statements to object to at least 1069 provisions of laws Congress had just enacted, compared to 105 objections by President Clinton.  (These figures are from a paper by Neil Kinkopf and Peter Shane.  I cannot find a compilation of Bush signing statements for Bush’s last year and a half. ) The point of President Obama’s memorandum is to indicate a break from the past. (more…)

The Hollow Men

March 3, 2009

For the better part of eight years, the Bush Administration employed distinctly muscular and macho imagery in connection with its theories of presidential power – think John Wayne or Clint Eastwood. But in its waning days the Administration’s legal theorists were reduced to a very different image: that of the diminutive and feckless Emily Litella of Saturday Night Live fame. Regarding those strident assertions of authority, “Nevermind.” Or maybe the better pop cultural reference is Dallas. Bobby Ewing did not actually die, the entire season in which he appeared to have gone to his reward was just a dream, and Bobby could return to the show. So it is that those opinions from John Yoo and Jay Bybee were just a bad dream, and it is safe for the rule of law to return. Or maybe it is the Wizard of Oz: “Ding dong, the wicked witch is dead.”

Whatever the reference, the revelation of the recent memoranda repudiating aspects of seven OLC opinions issued in the wake of the 9/11 attacks is stunning. I will leave discussion of the seven newly released opinions to another post. For now, I want to offer a few comments on the extraordinary memorandum (bearing the misleadingly banal caption: “Memorandum to the File”) that repudiates important components of the legal foundation for the Bush Administration’s theory of presidential power.

First, as far as I am aware, this Memorandum to the File is unprecedented. OLC occasionally reverses itself on a question. But I can think of no situation in which an Administration has gone back and repudiated its own analytical approach to an entire category of issues. This action speaks volumes as to just how deeply flawed those opinions were. There continue to be commentators who assert that opinions such as the infamous torture memo involve close calls over which reasonable lawyers may differ (a rant by Andrew McCarthy over the National Review Online provides a recent example). But the repudiating memo demonstrates that these opinions do not involve points of reasonable disagreement. Rather, they involve egregious and unjustifiable departures from accepted legal principles. The theories that guided the Bush Administration at least in 2001-2003 have been roundly rejected by commentators across the political spectrum, and now are repudiated by the very Administration and the very Office that had once issued them. It now seems beyond reasonable dispute that the theories espoused by OLC under the leadership of Jay Bybee and John Yoo were clearly wrong and unsupportable by reference to accepted legal principles. (more…)

Welcome to Executive Watch

January 20, 2009

Executive Watch is a blog from the Duke University School of Law’s Program in Public Law.  It is dedicated to monitoring, analyzing and providing a forum for discussion of questions of presidential power. Executive Watch will go live Monday, February 9, 2009.