Posted by John Elwood:
Presidential Signing Statements -- The More Things Change:
http://volokh.com/archives/archive_2009_05_31-2009_06_06.shtml#1244245053
I'm sure it's only a matter of time until the ABA denounces as
"contrary to the rule of law and our constitutional system of
separation of powers" President Obama's use of signing statements to
voice constitutional concerns about legislation he signs into law. See
[1]ABA Task Force on Presidential Signing Statements and the
Separation of Powers Doctrine, Report at 5 (July 24, 2006) ("ABA Task
Force Report"). The President quietly issued another such signing
statement on Tuesday, the fourth constitutional signing statement of
his young presidency.
The [2]signing statement notes that six Members of Congress to be
appointed to the newly created Ronald Reagan Centennial Commission may
serve in an advisory or ceremonial capacity only and may not
administer the act, consistent with separation of powers doctrine, the
Appointments Clause, and the Ineligibility Clause. It read:
I wholeheartedly welcome the participation of members of Congress
in the activities of the Commission. In accord with President
Reagan's Signing Statement made upon signing similar commemorative
legislation in 1983, I understand, and my Administration has so
advised the Congress, that the members of Congress "will be able to
participate only in ceremonial or advisory functions of [such a]
Commission, and not in matters involving the administration of the
act" in light of the separation of powers and the Appointments and
Ineligibility Clauses of the Constitution (Public Papers of the
President, Ronald Reagan, Vol. II, 1983, page 1390).
President Bush issued a remarkably similar [3]statement in 2001:
Consistent with the requirements of the Appointments Clause of the
Constitution, I welcome the participation, in an advisory capacity
on the commission, of representatives of the Judiciary; the Brown
Foundation for Education Equity, Excellence, and Research; the
NAACP Legal Defense and Education Fund; and the Brown v. Board of
Education National Historic Site in the activities of the
commission. While the Constitution does not permit them to
participate in the performance of executive functions, their advice
will be crucial to the effective functioning of the commission. As
I exercise my constitutional power of appointment to name 11
members of the commission, under the Appointments Clause and the
enabling legislation, I welcome, as a matter of comity, the
suggestions of the congressional leadership for those positions.
Signing Statement for H.R. 2133, creating the "Brown v. Board of
Education 50th Anniversary Commission" (P.L. 107-41) (Sept. 18, 2001).
As a Deputy in the Office of Legal Counsel, I [4]testified on
Presidential Signing Statements before the House Judiciary Committee,
and so I am fairly familiar with their past use. As President Obama's
signing statement itself suggests, similar concerns have routinely
been expressed by Presidents of both parties for the past quarter
century.
President Obama's most recent signing statement is novel not for its
substance so much as for the layers of political cover the
Administration has provided itself, by (1) explicitly mentioning a
forebear who expressed a similar concern; and (2) explicitly noting
that the Administration "has so advised the Congress" before
enactment. Noting that the Administration has advised Congress of its
objections addresses one of the recommendations of the ABA Signing
Statement Task Force, that the President "communicate such concerns to
Congress prior to passage." ABA Task Force Report at 5. Confirming
that such notice was given in the signing statement itself seems
prudent as a matter of congressional relations, but it is more a
matter of style than substance. Although there have certainly been
exceptions, administrations of both parties (including the Bush
Administration) have routinely advised Congress of their
constitutional objections through informal contacts and formal bill
comment letters. The Obama Administration has now taken an additional
step to "paper the record" by noting that fact at the time of the
signing statement.
For those of you keeping score at home, based on [5]the listing of
signing statements on coherentbabble.com (which includes both
constitutional signing statements and uncontroversial rhetorical or
laudatory signing statements), President Obama has issued more
constitutional signing statements than President Bush had at this
point in his presidency (by my count, four versus one).
References
1. http://www.coherentbabble.com/signingstatements/ABATaskForceReport.pdf
2.
http://www.whitehouse.gov/the_press_office/Statement-by-the-President-on-the-Signing-of-the-Ronald-Reagan-Centennial-Commission-Act/
3. http://www.coherentbabble.com/Statements/SShr2133.pdf
4. http://judiciary.house.gov/hearings/pdf/Elwood013107.pdf
5. http://www.coherentbabble.com/signingstatements/links.htm
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