Posts Tagged ‘Signing Statements’

Executive Power and the 80% Problem

March 24, 2009

People are intensely interested in figuring out how President Obama’s view of his presidential authority differs from President George W Bush’s, and rightly so.  Some of the legal underpinnings for many of the Bush administration’s most controversial policies - the initial creation of military commissions, the resistance to providing judicial review for detainees held at Guantanamo, the use of aggressive interrogation techniques, the NSA’s warrantless surveillance program - relied on a theory of presidential authority that many thought arrogated too much unilateral power to the presidency.  And of course candidate Obama campaigned against these programs and the legal theory of the presidency that supported them.  A much-noted Q&A with Charlie Savage in the Boston Globe back in December, 2007 summarizes candidate Obama’s views.

Two months into his term, President Obama has taken steps to revise or reverse all of these policies.   He has announced the cessation of military commission trials.  He has announced the closing of Guantanamo, after a planning and evaluation process to determine which cases can be transferred to the federal courts or to military courts martial.  He has announced that the Army Field Manual defines the permissible interrogation techniques for American personnel.  And we believe, but do not know, that warrantless surveillance of Americans within the United States is no longer occurring, subsequent to Congress amending the FISA statute to authorize a program that meets national security requirements while subjecting the procedures for that program to judicial review by the FISA court.   Led by Vice President Cheney, conservative critics claim that these policy changes are making the country weaker and less secure.

Despite these noticeable and notable changes, somewhat remarkable narrative is gathering momentum:  On issues of presidential power, Obama is not much different from Bush.  Making the narrative even more interesting, it is coming from the left and the right.  (more…)

Signing Statements Redux

March 17, 2009

Last week, President Obama issued his first signing statement. Actually, it wasn’t his first signing statement, but it was the first statement in which he expressed his view that certain provisions of the bill he was signing were unconstitutional. The Bush Administration was subject to a good deal of criticism for its use of signing statements. So, perhaps it is not surprising that some have taken the occasion as an opportunity to settle scores. Here is what Eric Posner had to say on the Volokh Conspiracy:

The … signing statement controversy, stirred up by then Boston Globe reporter Charlie Savage who was duly awarded a Pulitzer Prize for his efforts, always rested on misunderstanding and confusion. Signing statements have almost zero practical effect. Courts don’t care about them. If a former Bush administration official is ever hauled before court for torture, it will make absolutely no difference that Bush issued a signing statement that said a statute restricting torture will be interpreted so as not to interfere with the president’s commander in chief power. Whether such a statement existed or not, a court would consider the constitutional argument and either accept or reject it on the merits. Nor is it legally novel that a president might refuse to enforce a statute that he believes to be unconstitutional. Larry Tribe, to his credit, chided Savage for insinuating in a “news” article that only right-wing lunatics and rear-end-covering former Clinton executive branch lawyers could think otherwise. (Here is Savage’s walking-on-eggshells report on the Obama statement.)
The Bush administration did use the signing statement as a vehicle for advancing its views about presidential power. But its views about presidential power were formally the same as those of its predecessors—and as those of its successor, apparently. It did press those views farther in some respects—especially in the interrogation and wiretapping controversies—but it backed down in response to internal disagreement led by Jack Goldsmith. These (real) controversies about presidential power had virtually nothing to do with whether presidents should issue signing statements and how many statutes they should be permitted to challenge. It remains unclear whether Bush’s views on presidential power in the end were all that different from Clinton’s or, if they were, whether the differences would have had practical importance.

Let’s take the claims in order. First, the claim that “signing statements have almost zero practical effect” is highly dubious. (more…)

Obama on Transparency and Scientific Integrity: Some Positive Signs with Some Mixed Signals

March 13, 2009

One kind of issue about presidential control over executive government with proven implications for “science-bending” concerns presidential control over executive branch communications with Congress. Transparency, and all the contributions to “honest brokering” and effective democracy through the “marketplace of ideas” that go with it, is impaired if the President takes the position that communications with Congress or the public must be pre-cleared politically. One notorious example during the Bush administration was the suppression of projections concerning the cost of certain health-care measures. Some such controls are of long-standing, however. Thirty-two years ago, when the author was General Counsel of the US Nuclear Regulatory Commission, the Office of Management and Budget was “coordinating” (i.e., pre-clearing) communications and testimony to Congress about legislative proposals and budgetary matters. The Commission’s nominal independence (it was of course an element of the executive branch, but its statutes provided explicitly for direct communication) softened these controls; but within the Commission itself, its Bureau “executives” sometimes exercised rather rigorous control over what they would permit their staff members to tell the Commission about perceived nuclear power risks – a rather unfortunate situation. (more…)

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…)