Posted by John Elwood:
A Belated Presidential Signing Statement:
http://volokh.com/archives/archive_2009_06_28-2009_07_04.shtml#1246309459
On Wednesday, June 24, President Obama [1]signed the Supplemental
Appropriations Act of 2009, and issued a short, laudatory [2]signing
statement. It was purely "rhetorical," to use the language of
academics who study this subject, and voiced no constitutional
objections.
I want to thank the Members of Congress who put politics aside and
stood up to support a bill that will provide for the safety of our
troops and the American people. This legislation will make
available the funding necessary to bring the war in Iraq to a
responsible end, defeat terrorist networks in Afghanistan, and
further prepare our nation in the event of a continued outbreak of
the H1N1 pandemic flu.
Two days later, apparently at about 4:15 pm on the evening of Friday,
June 26, the President issued an additional statement that contained
the fifth constitutional [3]signing statement of his presidency. After
four paragraphs lauding the funding the Act provides, the President
stated:
However, provisions of this bill within sections 1110 to 1112 of
title XI, and sections 1403 and 1404 of title XIV, would interfere
with my constitutional authority to conduct foreign relations by
directing the Executive to take certain positions in negotiations
or discussions with international organizations and foreign
governments, or by requiring consultation with the Congress prior
to such negotiations or discussions. I will not treat these
provisions as limiting my ability to engage in foreign diplomacy or
negotiations.
Unlike some of his recent signing statements, there was no express
indication that the Administration previously communicated these
complaints to Congress before enactment.
While I believe there is nothing inherently improper about issuing the
signing statement a couple days late (although for reasons President
Obama appropriately has recognized, it's better to tell Congress
before the legislation is enacted and it's in a position to do
something about it), it is certainly unusual. The only explanations I
can think of offhand are that either (1) some lawyers in OLC or the
Counsel's Office couldn't get their act together in time or (2)
perhaps the Administration is trying to control the news cycle by
releasing it on Friday evening. Let me know if another explanation
occurs to you.
The Obama signing statement reflects the longstanding Executive Branch
position on the President's constitutional authority in the area of
foreign affairs. The signing statement was similar to ones issued by,
for example, President George W. Bush. See, e.g.:
Several provisions of the Act purport to direct or burden the
conduct of negotiations by the executive branch with foreign
governments, international organizations, or other entities abroad,
or otherwise interfere with the President's constitutional
authority to conduct the Nation's foreign affairs. These include
sections 514, 560, and 581(a), and the appropriations heading
related to the International Development Association, which purport
to direct the Secretary of the Treasury to require the U.S.
representatives to take particular positions for the United States
in international organizations or require the Secretary to accord
priority to a particular objective in negotiations with such an
organization. Another such provision is section 567(b), which
purports to direct the Secretary of State to consult certain
international organizations in determining the state of events
abroad. These provisions shall be construed consistent with my
constitutional authorities to conduct foreign affairs, participate
in international negotiations, and supervise the executive branch.
Signing Statement for H.R. 2506, the "Foreign Operations, Export
Financing, and Related Programs Appropriations Act, 2002" (Jan. 10,
2002).
It does not appear that the NY Times, the Washington Post, or the
Boston Globe covered the signing statement in their newspapers.
Charlie Savage of the Times did a brief [4]blog post on the statement,
although one might say it lacks the "urgency" of [5]some of his
earlier [6]Pulitzer-Prize-winning [7]reporting on the subject.
References
1.
%E2http://news.yahoo.com/s/ap/20090625/ap_on_go_pr_wh/us_obama_war_funds%E2
2.
%E2http://www.whitehouse.gov/the_press_office/Statement-from-the-President-on-signing-the-Supplemental-Appropriations-Act/%E2
3.
%E2http://www.whitehouse.gov/the_press_office/Statement-from-the-President-upon-signing-HR-2346/%E2
4.
%E2http://thecaucus.blogs.nytimes.com/2009/06/26/a-bill-signing-with-reservations/?scp=4&sq=signing%20statement&st=cse%E2
5.
%E2http://www.boston.com/news/nation/washington/articles/2008/01/29/in_signing_statement_bush_looks_to_bypass_four_laws/?page=full%E2
6.
%E2http://www.boston.com/news/nation/articles/2006/05/28/cheney_aide_is_screening_legislation/%E2
7.
%E2http://www.boston.com/news/nation/washington/articles/2006/08/09/aba_urges_halt_to_signing_statements/%E2
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