Posted by John Elwood:
Presidential Signing Statements -- Comment Thread:
http://volokh.com/archives/archive_2009_06_07-2009_06_13.shtml#1244468851
Thanks to all the commenters for their discussion in the comments
thread. Commenters raised two items I thought warranted brief
follow-up.
First, one commenter said that the ABA had condemned President Obama's
signing statements in a March 12, 2009 item in the ABA Journal. I
don't wish to belabor this subject, because my point in opening my
post by saying that the ABA would doubtless soon denounce President
Obama's use of signing statements as (to quote the ABA Task Force
Report on Signing Statements) "contrary to the rule of law and our
constitutional system of separation of powers" was not to focus on the
ABA in particular, but simply to illustrate that signing statements no
longer provoke the criticism they once did. The goal of my original
post was just to note that the President had issued another
constitutional signing statement -- an event that garnered scant
attention from the national media or anyone else.
The only item from the March 12 ABA Journal discussing signing
statements of which I am aware is just a short [1]news article by a
staff writer for the online edition summarizing the reporting of other
newspapers; it was not a statement of the ABA. That article notes that
ABA President H. Thomas Wells Jr. advised President Elect Obama in
November 2008 in a memorandum that �If you believe that any provision
of a bill pending before Congress would be unconstitutional if
enacted, you should communicate those concerns to Congress before
passage and use your veto power if you conclude that all or part of a
bill is unconstitutional." (That was the last of six subjects in a
[2]memorandum that also discussed judicial selection, immigration,
attorney-client privilege, interrogation, and the international
criminal court.) On March 10, 2009, Mr. Wells also issued a
[3]statement praising as an "encouraging step" President Obama's March
9 [4]memorandum in which President Obama pledged to issue signing
statements only under specified circumstances and "only when it is
appropriate to do so as a means of discharging my constitutional
responsibilities." Mr. Wells also said in his March 10 statement that
"President Obama or any other President must not skirt the only
constitutional remedies available to the President regarding bills:
sign or veto." That general statement of principle, which preceded
President Obama's first constitutional signing statement (on March
11), is, to my mind, a far cry from "calling President Obama out" on
signing statements. It is a difference between stating a principle and
actually applying it.
To appreciate the difference, one needs look no further than Mr.
Wells's own statements. In an October 2008 [5]statement, Wells urged
both candidates for President, if elected, to "resist using signing
statements as a substitute for either negotiation with Congress or
exercise of veto power." That general statement is not unlike those in
Wells's November 2008 letter or March 10, 2009 statement. But the
October 2008 statement goes further, saying that "last week the [Bush]
administration issued two signing statements that ignore th[e]
fundamental principle" that "no one branch of government has too much
power." Similarly, Mr. Wells's November 2008 memorandum says that the
use of signing statements by the "outgoing administration" was
"contrary to the rule of law and our constitutional system of
separation of powers." I am not aware that Mr. Wells has issued an
official statement making a similar criticism of President Obama's
actual use of signing statements. See the list of his statements
[6]here.
(By the way, if you're interested in reading more about President
Obama's March 9 Memo on signing statements or his March 11 signing
statement raising a number of constitutional concerns in the
application of the Omnibus Appropriations Act, those have been
discussed on the VC [7]here, [8]here, [9]here, and [10]here.)
Second, one commenter said that he thought the problem with President
Bush's signing statements was that they were vague and did not
identify the provisions at issue or the precise powers he claimed.
That raises a good point that hasn't been discussed much in the
signing statements debate.
The vagueness charge was not a major theme in the signing statement
kerfluffle in 2006; the point was not made in most the major reports
(including the ABA report), speeches, and op-eds at the time, which
instead focused on arguments that constitutional signing statements
represent an unconstitutional usurpation of power and are tantamount
to a self-help line-item veto. (Basically for the reasons outlined in
my [11]testimony and Eric Posner's posts on the subject, I think those
criticisms miss the mark.) A Congressional Research Service [12]report
stated in passing that President Bush's signing statements were often
vague, see CRS, Presidential Signing Statements: Constitutional and
Institutional Implications at CRS-11 (Sept. 17, 2007), but noted that
his signing statements "do not appear to differ substantively from
those issued by either Presidents Reagan or Clinton," id. at CRS-12,
and stated more generally that "vague and generalized assertions of
authority [are] typical of signing statements." Id. at CRS-30.
Significantly, the vagueness charge was made in a thoughtful July 2006
[13]post on the Georgetown Law School faculty blog signed by a number
of professors, including some now running the Office of Legal Counsel.
Perhaps unsurprisingly given this background, President Obama's March
9 memorandum pledged that his signing statements would "identify my
constitutional concerns about a statutory provision with sufficient
specificity to make clear the nature and basis of the constitutional
objection."
Signing statements may be vague because they fail to identify the
specific provisions at issue. Eric Posner [14]noted that his study
with Curtis Bradley concluded that President Bush, on average, issued
two signing statements a year that did not identify the provisions at
issue, and President Clinton, on average, issued one. Signing
statements may also be vague because they do not adequately describe
the nature of the constitutional concern. In that regard, probably my
least favorite type of signing statement is one stating that a
provision "will be interpreted consistent with my power under the X
Clause," because, without more, it says little about when that will
occur and what the result will be. Both President [15]Bush and
President [16]Clinton (scroll down to his comment on section 610),
among others, have issued such statements. Vagueness undermines the
utility of signing statements to further the dialogue between the
branches of government and to inform Congress and the public about the
Executive Branch's planned implementation of statutes.
While, as Eric Posner [17]noted, some parts of President Obama's March
11 signing statement did not identify the specific provisions at
issue, subsequent signing statements have done so, and most are
admirably clear in outlining the ways in which the President
anticipates provisions might interfere with his authorities and how he
intends to implement the provision (especially considering that
signing statements tend to be fairly short, and thus do not permit
extended discussion of an issue). President Obama has used the
"consistent with my constitutional authority" language once (in his
March 11 signing statement). He did, however, outline the specific
nature of his objection in the preceding sentence, which is helpful,
although he did not explicitly state the extent to which he intended
to comply with the statute:
Section 7050 in Division H prohibits the use of certain funds for
the use of the Armed Forces in United Nations peacekeeping missions
under the command or operational control of a foreign national
unless my military advisers have recommended to me that such
involvement is in the national interests of the United States. This
provision raises constitutional concerns by constraining my choice
of particular persons to perform specific command functions in
military missions, by conditioning the exercise of my authority as
Commander in Chief on the recommendations of subordinates within
the military chain of command, and by constraining my diplomatic
negotiating authority. Accordingly, I will apply this provision
consistent with my constitutional authority and responsibilities.
References
1.
%E2http://abajournal.com/news/obama_issues_signing_statement_objecting_to_parts_of_spending_bill/%E2
2. %E2http://abajournal.com/magazine/memorandum/%E2
3.
%E2http://www.abanet.org/abanet/media/statement/statement.cfm?releaseid=568%E2
4.
%E2http://graphics.nytimes.com/packages/pdf/politics/2009signingstm.mem.final.rel.pdf%E2
5.
%E2http://www.abanet.org/abanet/media/statement/statement.cfm?releaseid=482%E2
6. %E2http://www.abanet.org/abanet/media/statement/statement_list.cfm%E2
7.
%E2http://volokh.com/archives/archive_2009_03_08-2009_03_14.shtml#1236897533%E2
8. %E2http://volokh.com/posts/1237046288.shtml%E2
9.
%E2http://volokh.com/archives/archive_2009_03_08-2009_03_14.shtml#1236911524%E2
10. %E2http://volokh.com/archives/archive_2009_03_08-2009_03_14.shtml%E2
11. http://judiciary.house.gov/hearings/pdf/Elwood013107.pdf
12.
%E2http://www.coherentbabble.com/signingstatements/CRS/RL33667-9172007.pdf%E2
13. %E2http://gulcfac.typepad.com/georgetown_university_law/2006/07/%E2
14. %E2http://volokh.com/archives/archive_2009_03_08-2009_03_14.shtml%E2
15. %E2http://www.presidency.ucsb.edu/ws/index.php?pid=62642%E2
16. %E2http://www.presidency.ucsb.edu/ws/index.php?pid=55138%E2
17.
%E2http://volokh.com/archives/archive_2009_03_08-2009_03_14.shtml#1236897533%E2
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