President Obama’s Executive Overreach

Last week four Democrats in Congress led by Representative Barney sent President Obama a “Warning” letter about his use of signing statements. This letter was a follow up to the prior week’s House “rebuke” of President Obama for using presidential signing statements to circumvent restrictions placed on international aid payments that were part a $106 billion war supplemental bill The Hill, Obama’s signing statement,  said that “he would ignore the conditions” that would “pressure the World Bank to strengthen labor and environmental standards and require a Treasury Department report on World Bank and International Monetary Fund (IMF) activities” because it interferes with his “constitutional authority.”

I am a staunch supporter of President Obama but I am disappointed by his perpetuation of this practice. Not surprised, just disappointed. Prior to his election his stance on signing statements was a mixed bag. He either outright promised to not using signing statements as show in this video clip or he offered a more nuanced response as in this December 20, 2007 interview in the Boston Globe wherein he said the following:

“I will not use signing statements to nullify or undermine congressional instructions as enacted into law. The problem with [the Bush] administration is that it has attached signing statements to legislation in an effort to change the meaning of the legislation, to avoid enforcing certain provisions of the legislation that the President does not like, and to raise implausible or dubious constitutional objections to the legislation. The fact that President Bush has issued signing statements to challenge over 1100 laws – more than any president in history – is a clear abuse of this prerogative. No one doubts that it is appropriate to use signing statements to protect a president’s constitutional prerogatives; unfortunately, the Bush Administration has gone much further than that.”

I have been unable to discern whether the promise in the video came before or after the Boston Globe interview but it really doesn’t matter as most politicians shift their viewpoints as the election night nears, particularly after winning their party’s nomination and they work to move back towards the center. What does matter is that he certainly was at the very least elected on and has since vowed to limit his use of presidential signing statements to invalidate parts of laws he believes violate his “constitutional prerogative” as president.

The questions are how does a president determine when his constitutional prerogative is endangered by a provision and how does Congress or the courts challenge the president’s conclusion? If the president vetoes a law Congress gets the chance to override that veto but Congress does not get that chance with a signing statement. This “rebuke” and letter of “warning” that are Congresses’ first real attempt at restraining the power of signing statements.  I could not be happier that Congress is standing up to the president, especially since it is a Democratic Congress rebuking a highly popular Democratic president.  For once, Congress is looking out for the interests of the nation instead their partisan self-interests.  I only hope it sufficiently repudiates Obama’s actions and forces him to think at least three or four times before issuing a signing statement that significantly alters a new law.

I am sure that Obama would claim that his most recent signing statement did not “nullify” or “undermine” Congress but that instead actually prevented Congress from unconstitutionally inhibiting his executive powers. The thing of it is…the president should not decide what is constitutional and what is unconstitutional. That is the purview of the Supreme Court and has been since Marbury v. Madison established the principal of judicial review in 1803.  As Chief Justice John Marshall stated, “Congress cannot pass laws that are contrary to the Constitution, and it is the role of the federal courts to interpret what the Constitution permits.” In other words, it is not the role of the president who signs the law to determine the constitutionality of a law—it is for the courts to decide.  If he thinks a law is unconstitutional he should veto it in its entirety or sign it and wait for the courts to decide. This is part of the separation of powers inherent in our government.

For those of you new to this subject, signing statements are but one of the many mechanisms increasingly used by modern presidents to transform themselves into lawmakers. Where once direct presidential policymaking was reserved for times of war or national crisis, we now see that unilateral decision making has become a routine affair, even in routine times.

When the president is presented with a bill he or she is supposed to sign it or veto it in its entirety. The president cannot choose which parts to enforce or sign into law. This was clearly established in Clinton v. City of New York which outlawed the use of the line-item veto because it violated the Presentment Clause of the Constitution. Using signing statements substitutes the president’s agenda for the legislative intent of the bill.

While signing statements have been issued since the days of George Washington, it wasn’t until recent history that they were recorded as part of the legislative record and most often they were innocuous benedictions issued in anticipation of the benefits for the nation and its citizens. Today they all too frequently clearly spell out the president’s intent to ignore whole portions of a new law.

In the 1980s, Reagan’s attorney General, Edwin Meese, established presidential signing statements as part of the official legislative record. Placing signing statements in legislative history ensures that they will be considered along with all other provisions of the law when the courts rule on its meaning. The president is in effect, adding to or subtracting from a law as if the president were a legislator.

Some random examples of presidential signing statements over the last thirty years:

·    1986 Safe Drinking Water Amendments-Reagan reinterpreted sections of the act that appeared to require mandatory enforcement so that they would allow discretionary enforcement.
·    1991 Civil Rights Act-Bush 41 statement’s stipulated that a provision in the Act unfairly affected business and gave direction to bypass that provision.
·    1992 Energy and Water Development Appropriations Act contained provisions regarding affirmative action for a Superconducting Super Collider in Texas that Bush 41 directed his Secretary of Energy to ignore. It is important to note that Bush 41 had opposed passage of the bill because of this provision and by using a signing statement he vetoed the portion of the bill he did not approve of but without giving Congress the opportunity to override a presidential veto.
·    1994 Defense Appropriations Bill-Clinton used a signing statement to declare a provision requiring the discharge of all HIV-positive military personnel unconstitutional. Moreover, he ordered the Department of Justice not to defend the HIV ban in court if challenged. Would it not have been better for the Supreme Court to decide the constitutionality of this law?
·    2002 Campaign Finance Reform Legislation-Bush 43 used signing statements to declare portions of the bill “nonservable” which meant that if the courts declared any portion of the bill unconstitutional than the entire bill was null and void. According to Matthew Crenshaw and Benjamin Ginsberg, authors of Presidential Powers Unchecked & Unbalanced, “The actual bill contains no such provision but George W. Bush was seeking to write his interpretation into the legislative history to increase the likelihood that if some future federal court is dissatisfied with any one portion of the law it will strike down the entire measure.”
·    2003 Inspector General Qualifications Amendment Act creating an Inspector General to oversee the U.S. administration governing Iraq-Bush 43 wrote that the inspector general should “refrain” from looking into matters regarding intelligence or counterintelligence, a limitation not in the actual legislation.
·    2003 legislation creating the 9/11 commission-Bush 43 wrote that his requirement to disclose information would be done “in a manner consistent with the president’s constitutional authority to withhold information” for national security reason i.e. he would only disclose what he wants to disclose.
·    Amendment 1977 (McCain Torture Amendment)-Bush 43 wrote the he would interpret the amendment “in a manner consistent with the constitutional authority of the president to supervise the unitary executive branch and as commander in chief and consistent with the constitutional limitations on judicial power” i.e. he would again do whatever he wanted.

In 2002, Congress attempted to limit the use of signing statements in an appropriations bill sent to the Justice Department by adding a provision requiring the president to notify Congress when a law was pronounced unconstitutional in a presidential signing statement.  As one might expect, Bush signed the bill—and then issued a signing statement. He declared that he would provide Congress with the information requested but only “in a manner consistent with the constitutional authority of the President to supervise the UNITARY executive branch and to withhold information the disclosure of which could impair foreign relationships, the national security, the deliberative process of the Executive Branch, or the performance of the Executive’s constitutional duties.” A presidential signing statement restricted the full disclosure of presidential signing statements.

Congress must depend on the executive branch to carry out its laws but the executive branch operates within its own sphere of control and relies on itself for implementation, as such, the use of presidential signing statements has allowed the modern presidents to frustrate congressional initiatives with increasing frequency but none more so than George W. Bush. For example, Reagan used signing statements to challenge 71 sections of bills, Clinton 105 and George W. Bush — 1,200. This is “about twice the number challenged by all previous presidents combined,” according to data compiled by Christopher Kelley, a political science professor at Miami University in Ohio.

Reagan, Bush 41 and Bush 43 most often used signing statements to promote conservative policies or ends i.e. to limit the scope of affirmative action programs, to block business regulations, and to reduce the effects of environmental or labor laws. And Clinton used his for more progressive ends, most notable being his attempt to combat the conservative agenda spelled out in the Republican’s 1994 Contract for America.

I point this out because it is very easy to support signing statements when they positively affect issues that coincide with your own ideology.  As someone who is a pronounced progressive, I am sure that I would support at least a handful of the ends brought about by Clinton signing statements (such as his statement regarding military personnel with HIV) and I will probably approve of many of the ends Obama brings about. But regardless of how much I approve or disapprove of the ends I still highly disapprove of the means which tear at the fabric of our constitutional government.

For all the Obama supporters out there who will criticize me for critiquing Obama’s actions because I am only helping the conservatives by tearing him down I only have this to say: I agree that Obama is far better than George W. Bush and I want him to succeed in most of his goals because I believe that his policies will make this a better country but that does not mean that I cannot simultaneously point out the areas where I feel he is falling short. Support without critique is what we had for the previous eight years and I would be ashamed of myself if I didn’t continue to critique policies and actions that I disagreed with under Bush simply because those policies and actions are now being taken by a president I support and admire. My admiration for him only strengthens my resolve that he should be called on to do the right thing.

The separation of power between branches is a quintessential part of our democratic process and despite the many failings of Congress I believe that reducing its powers to restrain the president puts us that much closer to living under an imperial leader whose power is increasingly unchecked. I warned Bush supporters, who thought I was complaining about nothing, that they would be sorry when a Democratic president wielded the same power and now I am warning Obama supporters of the same thing. Power that helps your agenda now will only be used to harm it later so be wary of how much power you give to one branch of government—let alone one person.

As it stands today, Obama has only affected 18 provisions of laws using signing statements since taking office but this gives me little comfort as it already puts Obama at a usage rate equal to 32% of George W. Bush’s. I am hoping that the rebuke from Congress and warning letter help quell Obama’s desire to stretch the power of his signature. I may stand on the political left but when it comes to fighting presidential overreach I will stand front and center with any and all who wish to join me in opposition.

If President Obama thinks a law is not constitutional he has two choices veto the bill or sign it and let the courts decide.

Scott P

41 comments

Elaine U.
Elaine U8 years ago

This should never have been allowed. I want to know, while some people are worried about Obama using them, were they concerned while GW was systematically tearing our democratic government apart?? Also what is going to be done to keep any FUTURE (I hope NEVER) Republican from finishing what GW nearly accomplished???

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Carol H.
Past Member 8 years ago

No way Jose a law is a law who is he cancel or nulify a law

I don't trust him now and didn't trust him before he entered the office.

He needs to be gone TODAY and that is a fact.

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Ken G.
Ken G8 years ago

You also raise some valid points George but somehow I have a hard time getting by the fact that our founding father's were slave owners, which to me means they made rules and regulations that would benefit mainly their interests.Someone like Hamilton, a Federalist, seemed to have the people's interest more in mind so those that wanted what profited themselves the most always opposed what was best for the people. While debating rules and regulations where does what's best for the people ever enter the picture? Most of the common people I know turned apathetic because there is no way our interests or what's best for us stands a chance against being told to obey the laws slave owner's mentalities make for us to follow and obey. My own personal opinion is that enough foreign countries are going to have to step in because the same mentality used on the people is being used on other countries so our inability in decently running our own country has damaged the world also. I mean we can't get along with one another in this country where we focus on doing the right thing for the good of the people so surely there have to be some in this country that can understand the world can't stand by to let our dysfunctional thinking go on forever.

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George S.
Past Member 8 years ago

You raise some valid questions. As Scott stated, signing statements have been around since the days of GW but only recently have they become integrated with the legislative history of laws passed by presidents. Are they illegal? I think Scott stated they were unconstitutional in nature but since a court has never ruled on this point it cannot be said whether his interpretation is accurate or not. If found unconstitutional by a court, signing statements would then become illegal much in the same sense that the line-item veto became illegal/unconstitutional after Clinton v. NY (mentioned in the article). Presidents can and indeed do “take the bit by the mouth” and perform illegal actions until someone with standing brings the issue to the courts. I can tell you are an Obama supporter and thus no doubt opposed Bush. Take five minutes and I am sure you can think of a few policies or practices fostered by the Bush administration that you may consider illegal or unconstitutional i.e. suspension of writ of habeas corpus, torture, expanded wiretapping/surveillance, the use of secret evidence in military, etc. Some of these issue have been addressed by the Supreme Court such as in Hamdan v. Rumseld, Rasul v. Bush or Boumediene v. Bush. Until they were addressed their possible illegality or constitutionality did not prevent the Bush administration from using these practices in the interim.

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Elizabeth Irving-Waddleto
Elizabeth Irving8 years ago

Maybe I just don't get it: this signing of statements has been legal for presidents for over 200 years; Scott gives many examples of how it's been used(or abused) by recent presidents. Also, Scott suggests that it's unconstitutional. My question is, then, why hasn't this executive power itself been challenged and brought before the Supreme Court during those 200 years? Obviously, Obama can't just take the bit in his mouth and do something like this if it is illegal, right? Therefore, "signing statements" must be an allowable, legal action...
Now if Obama is "abusing" this power, as the author insinuates,
the only difficulty I can see is that he apparently made an "election promise" not to... Hmm. Have other presidents kept all their election promises? Is Obama perhaps using "signing statements" to fulfill his other campaign promises? As he promised, he's pulled the US out of Iraq; he's trying to get a universal health insurance bill passed; he's been traveling around the world trying to improve U.S. relationships with other countries. We may have a huge deficit, but Obama promised to help get the economy back on its feet and the unemployed back to work(and a stimulus package just ain't cheap).
My question(and I'm sure some of you won't agree): do you all want a 100% 'ethical' president, who ignores his right to "sign statements", or do you want an effective president who works within the law towards major changes--those major changes he promised to make?

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Pat A.
Pat A8 years ago

You are right to criticize those you support when they make errors in judgement. You have not condemned anyone. Obama is not perfect. It is absurd that some supporters would like to claim he is. He said he would not do this. He did it. It is not his finest actioin. Thanks for pointing it out and providing so much information on the topic for those who needed it.

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Subhash Joshi
Subhash Joshi8 years ago

Signing statements are analogous to Ordinances in the Westminster model; however, these do not override bills passed by the elected representatives. These are usually decisions warranted on grounds of urgent action where delay is dangerous. The cabinet recommends to the President issuing of an Ordinance - it, therefore, seems to have somewhat greater legitimacy than a signing statement. An ordinance to remain operative must be passed into a law to remain effective within a period of six months.

Any ordinance (or bill) which is ultra vires of the basic structure of the constitution is not lawful.

I believe same provisions must apply here. Irrespective of the person or party of the incumbent, a President must bear in mind the legitimacy of his action and so should President Obama.

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Nicolae Carpathia
Past Member 8 years ago

Mr. Mayor, I have a question for you.....what if YOU came home one night to find your family tid up and gagged, with SOCKS in their mouths.They're screaming.Your trying to get in but there's too much BLOOD on the knob!!!!!

What is your question about?

It's about the budget sir.

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Dale P.
Dale P8 years ago

Our founding fathers set up checks and balances in the Constitution, and it states that if congress passes a law that the president (or the people for that matter) disagrees with, then the correct course of action is to bring the problem before the Supreme Court, period. These "signing statements" to circumvent law pass by congress is unconstitutional and a blatant nose thumbing of constitutional requirements lay-ed down by the men that created and signed the Constitution. Irregardless of the Presidents "popularity", his "duty" out-weighs all other things.

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Barbara Chally
Barbara Chally8 years ago

By and large I am surprised and impressed with the intelligence and courtesy in general in this discussion as compared with many others among blogs here. Perhaps that's because it has been infected with less of the intolerance and even hate expressed in so many by those knowing well in advance they are in the minority on issues to be discussed.

Such good opinions so well expressed and elaborated upon and later critiqued positively as well as negatively by most have made it difficult to summarize in order to form and then confirm and defend my own feelings.

As an ardent proponent of the president since his nomination (though previously I favored Hillary Clinton) I have been cautious about allowing any negativity to enter into my own perceptions of the administration before now. But this introduction of fair and just positions has allowed all reading it without predetermined opinions to reflect further. I certainly will look forward to seeing such welcome contributions on similar issues by people as positively viewing solutions as the definite majority here have been so far! My sincere thanks to all, and especially to Scott P. for starting us out with his excellent foundation for discussion!

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