Co-blogger Eric Posner recently posted Peter Strauss' analysis of Barack Obama's first signing statement, which argues that Obama claimed less sweeping power to withhold information from Congress than did President Bush. Michael Stern, an expert on legal issues involving Congress, has now responded to Strauss here [HT: my colleague Nelson Lund]. Whether or not Stern succeeds in proving that Obama's position is as sweeping as Bush's was, he certainly does show that Obama's statement leaves a great deal of room for him to withhold information whenever the administration claims that the public interest might require it:

With regard to the Grassley Rider, Obama says “I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees' communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.”

Strauss claims that “[t]his is so much less of a reservation than President Bush (and his predecessors) asserted as to give hope that he is serious about transparency, and about taking the muzzle off government personnel. They would simply have ended the sentence at 'Congress.'” . . .

Strauss is simply wrong. Because the Grassley Rider is not a new provision, but has been included in annual appropriations measures since FY1997, one can compare Bush’s signing statements on this exact issue. For example, in a December 10, 2004 signing statement, Bush stated that he would construe the Grassley Rider “in a manner consistent with the President’s constitutional authority to withhold information that could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive’s constitutional duties.”

Like Obama, Bush purported to authorize the withholding only of certain categories of information. In reality, however, these categories are extremely broad. Indeed, if Bush had stopped after “deliberative processes of the Executive,” his statement would have arguably covered pretty much anything the executive wanted to withhold. As anyone who has performed congressional oversight will tell you, the deliberative process privilege can be and has been (not necessarily properly) used to withhold a great deal of information that the executive prefers not to share with Congress. The words “or the performance of the Executive’s constitutional duties” I translate as meaning “just in case there is something that we can’t justify withholding under deliberative process or other privilege, we will still withhold it if we think it appropriate to do so.”

How is Obama’s statement any different from Bush’s, though? Although it uses different phrases, it amounts to exactly the same thing. “I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees' communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.” If Obama had stopped at “properly privileged,” his statement would still cover anything under Bush’s foreign relations and national security categories (executive privilege) and Bush’s deliberative process category (deliberative process privilege). As a practical matter, this is enough to give the executive flexibility to withhold information in virtually all circumstances. (Needless to say, the word “properly” is meaningless because it is the executive that will decide what is “properly” privileged).

My own view is that both Bush and Obama's positions show insufficient respect for Congress' authority. If Obama's statement is an improvement over Bush's in this respect, it is at most a very marginal one. In practice, both statements seem to allow the administration to withhold information from Congress almost any time it wants to do so.