Presidential Signing Statements — The More Things Change:

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 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 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 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 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 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).