Concerning signing statements
Uberconservative calls the following quote “the biggest lie of 2008”:
This is part of the whole theory of George Bush that he can make laws as he is going along. I disagree with that. I taught the Constitution. for 10 years. I believe in the Constitution and I will obey the Constitution of the United States. We are not going to use signing statements as a way of doing and end run around Congress.
He attributes the quote to somebody named “Barrack Obama.” I’ll assume he meant Barack Obama (who has only been President of the United States for three years at this point, so maybe it’s time to learn how to spell his name?)
There are two issues here. First, was Obama wrong to include his signing statement on the National Defense Authorization Act. Second, was Obama hypocritical to criticize Bush in the way he did.
The first issue is not terribly difficult. Congress writes and passes laws. The President has the option to sign the law or veto the law. If he signs the bill, the bill becomes law. If he vetoes the law, Congress can override the veto.
The President has no Constitutional power to change the law by appending some statement after his signature. With that said, there is no Constitutional problem with the President writing whatever he wants to write after the law. Take this example of a Bush signing statement appended to the Authorization of Use of Military Force on September 18, 2001. It says, essentially, “I think this bill is really important. Good job Congress.” That’s not a problem.1 Nor are signing statements (like this one from Bush or this one from Obama that say, “Congress, I’m kind of mad at you.” If the President wanted to draw a smiley face after his signature, add a grocery list, or maybe scribble a few couplets, we wouldn’t have a Constitutional issue. (Though somebody would need to have a word with the President who is using important documents as scrap paper.)
The problems arise when signing statements purport to change the law or indicate that the President plans to ignore portions of this law. Take this one, for example. Here Bush directs the Director of Central Intelligence to ignore a portion of the law. Or these two. Here is a Bush statement that radically reinterprets a law to suit the executive branch’s ends. [Here is a statement] that claims that a provision preventing a ship from being decommissioned violates the President’s authority to conduct foreign affairs.
So now we get to Obama’s recent signing statement on the 2011 National Defense Authorization Act. Much of it isn’t a problem. It says a few things. 1) Parts of this law are terrible. 2) I’m glad some changes were made. 3) Here’s how I will exercise the flexiblity provided by the law. 4) I may have to seek some changes in the law.
However, the statement does some of the stuff the problematic Bush signing statements did. Specifically, “Should any application of these [specific] provisions conflict with my constitutional authorities, I will treat the provisions as non-binding.”
Is this a problem? Yes and no. The President is sworn to uphold the Constitution—and there is no problem with ignoring a law that is genuinely unconstitutional. While I would prefer that the President simply refused to sign laws with that problem, on a practical level he’s got to sign something eventually. Whether there is an overreach or not depends in large part on how solid the Presidents’ interpretation of the Constitution is.
That’s where Bush got things wrong. The Constitution is pretty explicit that the executive branch is in charge of negotiating treaties. Obama has taken a pretty reasonable position on that. Bush, on the other hand, adopted a theory of the unitary executive—which is much shakier and is a much larger power grab.
I’ll give Uberconservative some credit. Obama is doing something awfully similar to what he criticized Bush for. He hasn’t made it a regular practice in the way Bush has, he has been much more limited, and he has based his statements on a far more conservative interpretation of the Constitution. But ultimately, it has hindered Congressional intent. However, to Obama’s credit, he is limiting use of the problematic sort of signing statements to cases where they are genuinely called for.
The second issue is whether Obama’s (limited) use of signing statements is horrible and hypocritical. Maybe. Maybe it’s a change in position. Don’t put too much stock in charges of hypocrisy, whether they’re leveled from the right or the left. If issuing a signing statement is categorically bad, it seems like it’s the signing statement we should be upset about, regardless of who is using it. Similarly, if when an anti-gay crusader turns out to be gay, accusing him of hypocrisy (accurate though that maybe) avoids the actual issue. Was the problem that he was gay or that he was anti-gay? Charges of hypocrisy are convenient—because they allow us to judge others by their principles without having to have any principles of our own. I would much rather we just stuck with our own principles and applied them consistently.