A quick, further note to co-blogger John Elwood's posts on the Obama administration's use of signing statements. I'm sure someone has mentioned this in the comments somewhere, but over at Opinio Juris, Julian Ku has posted up video of then-candidate Obama denouncing the use of signing statements and promising not to use them. "Hypocrisy" is a strong word, but I'll agree with Julian that it fits in this case; likewise the shrug from President Obama's supporters that heck, all presidents do it. Yes, of course, all presidents do it. Not all presidents do it, however, after promising not to do it. It's not the fact of doing it, it's the fact of breaking the promise, and with the complete confidence that no one of any significance will call you on it, starting with the press. The video is fascinating viewing as an artifact from the media memory hole, and thanks to Julian for putting it up.
Update: Let me add a little more with this post from Roger Alford, also at Opinio Juris, noting Harold Koh (late of the Koh wars) on presidential signing statements, back during the Bush years.
Glancing over the comments, it seems to me that the issue is whether or not Obama, those who people his administration, the ABA, and others are consistent in applying the rhetoric and standards they proclaimed during the Bush years - including the vehemence and bluster and fury - to the Obama administration. One of the commenters suggests that to focus on "did he break his promise" is juvenile. Let me suggest that it is not. Not, at least, when breaking the promise involves no acknowledgment that the predecessor one attacked for doing the same thing might have been right, or at least as right as you.
I worked for a law partner once, as a very junior associate, in which it was pretty clear that we had made a mistake in analysis that might well cost the client lots and lots and lots of money. The partner told me that the way to deal with this situation was to look the client straight in the eye and say, "Consistent with our earlier advice to x, not-x."
Update 2: In the comments to Opinio Juris's post by Julian Ku, mentioned above, the always reasonable Ed Swaine responds to Julian re the charge of hypocrisy. Scroll down comments to Julian's post to find it.
Update 3: And at comment number 15 in Julian's post, a response by Charlie Savage of the NYT. Am I alone in finding the tone of Savage's comment slightly, what, affronted? The unnecessary drive by shot at Glenn Reynolds at the beginning bore a certain resemblance to, I don't know, some of the less productive comment threads here at VC! But maybe I am just reacting to the attack on Glenn - not because Glenn is beyond attack, but because this was pure snark, a little sneer before getting on with things. (I am struggling with my Good Angel and Bad Angel over whether to post a snarky thing of my own - entirely on the tone, not substance, of Savage's comment. I don't believe in snark. But sometimes I do give way to the Dark Side.)
Update 4: I'm pleased to note that Charlie Savage has apologized to Glenn Reynolds for the rather snarky opening of his OJ comment. It's been added into the comments section.
Well, from his history since taking office, what are the odds? Has he kept any of his major promises? More than five percent? Certainly not more than one out of ten...
"I will issue signing statements to address constitutional concerns only when it is appropriate to do so as a means of discharging my constitutional responsibilities."
That is, he'll only use signing statements when he thinks he ought to use signing statements. How is that different from the Bush policy?
http://www.politifact.com/truth-o-meter/promises/
Take the following statement:
I pledge that I will not pick your pocket | unless I need the money
I think that the link from BN shows that Obama supporters are willing to view such as statement (like the one above) as two distinct positions when, in fact, it constitutes one conditional clause.
Plus, he never said "cross my heart and hope to die, stick a needle in my eye."
Few people noticed or objected to Bush's signing statements until he used one to totally disregard Congress. To date, his signing statements haven't come close to scope of Bush's signing statements. If and when Obama does the same thing he will be treated the same way.
I'm sure he has broken other promises, and he may break this one, but lets make sure we accurately describe what he promised to do.
Of course, a signing statement could be used to commemorate the anniversary of the birthday of Bozo the Clown, and hence viewed harmless. But still, a signing statement by virtue of its unique action does not consider the advice and consent of any other branch. No?
No, it isn't always a pure use of executive power. Clarifying a minor issue in a bill is not a power grab. Rejecting a major tenet of a bill you sign is a power grab. This is why people were upset with Bush. He signed bills with major provisions that he had no intention of following.
Substituting a signing statement for a veto is the real issue here. This is what Obama promised not to do, and, so far, he has kept that promise.
According to John Elwood, Obama has made four such signing statements so far.
Nothing Obama does is to "get his way". He acts only for The People, and for the good of the world.
Which of those bills should Obama have vetoed? Are you against all signing statements?
Don't ask me. I'm just pointing out that four of his signing statements extend beyond simple commentary and approval of the bill, to saying things like "section 1200 encroaches on my prerogatives as president to set foreign policy."
Signing statements are not part of any president's powers. As much as they do anything it is merely to state a particular president's intentions as to how they are going to enforce the law. Given that, constitutionally, a president is supposed to sign the legislation or veto it if he believes it to be unconstitutional, any signing statement where a president says "I believe this legislation to have unconstitutional sections" and signs anyway, then that president is failing to carry out his proper duty.
Just click the video to see what candidate Obama said.
It's sad that your Obamamania manifests itself as a new form of dyslexia that makes it difficult to understand recordings of the "messiah" when his words contradict his actions.
"All Presidents do it"??
Where is the Change??
NYT article
You can't make this stuff up.
Nowhere does he say what you claim. The questioner doesn't ask him if he is going to use them.
"Do you promise to not use Presidential Signings to get your way?"
"Yes"
That's rather different from what you and others keep claiming he said. He has not used a signing statement to thwart the will of Congress. So show where he has ever said flatly that he will not issue any signing statements at all.
I do not know what to think in this case. Do the posters lack the desire to seriously take on the statements and the issues in their complexity or do they lack the ability?
How absurd. If Obama is not using a signing statement to try to "get his way" (whatever that means) then why he is using it at all?
That would be because there is one.
Presidential signing statements can be benign or can represent a usurpation of proper legislative functions. I don't mind devoting a few brain cells to distinguish one from the other.
It isn't absurd if Obama believes his actions are not to get "his way" but merely to correct a typographic oversight of Congress who really don't know no better. This justification admits of everything. I assume he whispers, "Let not my will be done, O Congress, but thine," as he signs.
There is One. Everything He does is right.
This seems to be another example of taking a complex answer and rooting out all the complexity to make it a yes or no answer.
The answer Obama gave was, and I quote, "Yes".
Reporter: Will you refrain of making fun of the Obamabots' propensity to justify anything the president does by citing semantics to amuse yourself?
Mcbain: Yes.
he only did it to amuse others. I am sure he was not amused at all by any of this
Can Obama usurp something Congress has surrendered? They didn't finish writing the climate bill before the House passed it. Say Pelosi has an aide write "Bill to make the bad men pay to make everything good in America" on a blank sheet of paper; after it gets every Democratic vote on the Hill, why not have Obama fill in the blank spaces with his wisdom? He spent nearly 4 years in Congress, you know.
As far as I can tell, there are but two options to explain the discrepancy: Obama never actually meant what he said (meaning that he spent two years lying to the American public), or he was so ignorant of what the Presidency entails that he didn't really know what he was promising.
Neither one gives me any faith in our duly elected leader.
But don't go looking for it, they plan to use that and Hope to pay for ObamaCare.
And the question was NOT, "Do you promise never to use signing statements ever ever?". He promised not to do as Bush did. He hasn't.
Nice life on you guys.
That's all you got?
Fortunately, I don't really need to have much more than that. The faux-conservative wingnuts are doing an outstanding job of making themselves more and more of a joke every single day.
Keep up the good work.
((Have you started painting Palin/Jindal 2012 signs in your basement yet???))
Your hatred is showing and Bush has been out of office for over 5 months!
Have VC comments really come to this?
Nope. I'm hoping for Barrett/Kelo 2012, or something along those lines.
Despite the question marks, I don't believe you are seeking an answer.
"The problem with this 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," Obama answered. But, he added: "No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives."
The Post article comes up on the first page of results if you Google "obama signing statement."
Obama is basically saying that it's wrong to raise constitutional objections to legislation the president has signed, unless those objections are ones *he* considers "well-founded." (Although I don't dismiss the possibility that we'll find out through the release of executive records that Bush and his Admin secretly didn't believe in their own constitutional objections and admitted it to each other, like the i-bankers who emailed each other gleefully about recommending garbage investments.)
Legal realists may roll their eyes at this sort of thing, but those who use the phrase "judicial activism" unironically are forbidden to be scornful.
Oh, he was just a symptom of the problem.
For too long in the country true conservatives - those of us in AUH20 mold - have stood idly by why all sorts of wingnuts, torture fanboys, corporate stooges and the like have taken over "conservatism."
It's time to take back our rightful place.
I mean, this post is appallingly petty and small minded. Is this the playing field that people want to win? "OOOhhh, he said this during his campaign and now he is doing something else. Shame, shame, shame." Good grief. How sad.
I mean it would be one thing if it were actually principled criticism - as in "I have long criticized signing statements and Obama continues this unfortunate practice." Fine, that's legit. But this small-minded blabber is really pathetic.
Next, in the political climate of pre-2008, "signing statement" became a anti-Bush pejorative, inherently evil. Hardly an enlightened view, but there it is. Now that President Obama has decided that presidential authority should not be constrained by Congress, I'm sure that the ABA and others might regret those hard and fast no-signing-statement-ever positions, but that's ancient history.
Hypocritical? Sure, but no less so than any other politician on the average day. Maybe the point of the OP was not so much about the President, but more about those who were hypercritical of GWB's signing statements and the deafening silence on the issue now. And efforts to somehow draw a contrast between GWB signing statements and President Obama similar to the contrary, I suggest the issue is exactly the same. The change is in the commentary, not the subject matter.
And, I for one, am not criticizing the current President for signing statements. I see them as completely legitimate and necessary to prevent Congress from eroding the authority of the executive.
Straw Man argument. The issue was how Bush was using them, that the mere existence of them. And as pointed out above, the only one that categorically stated he would not use them was McCain.
How can anyone seriously make an argument that treating mandatory obligations imposed by Congress as "advisory," "nonbinding," or "precatory," because they don't sit well with the President doesn't constitute an end-around when it comes to the will of Congress?
Pretty clear to me that President Obama intends to make his duty to consult with Congress first a discretionary one, not a mandatory one. I guess you could argue that the harm isn't realized until he makes good on his intent, but that's really a stretch.
Or, from his signing statement following passage of the Omnibus Public Land Management Act of 2009:
The bill passed by Congress apparently requires the Secretary of the Interior to be bound by its recommendations for filling the Commission's ranks. The President says he'll have his Secretary consider said recommendations, but not necessarily follow them. How does this not constitute an attempt to execute an end-around on the law passed by Congress?
Actually, my statement was about the ABA and others, not about the presidential candidates. But if you want to have that discussion, on the video tape linked, Candidate Obama clearly says he will not use signing statements to "end run around Congress" os something similar. if you read his own signing statements, most of them deal with limitations or restrictions on presidential authority by Congress that he says he will not observe. Which part is unclear? What he says he won't do, or what he is doing? Of course, what I also said was that he engaged in behavior consistent with political candidates of any stripe, and as such, i felt it was acceptable.
But what I said in my first post was that "signing statement" became a kind of anti-Bush mantra, neither subtle nor nuanced in any way. In 2006, the ABA position was that signing statements of any kind that purported to question the constitutional purity of any bill in fact required a presidential veto, and that signing statements were, in effect, either an abdication of presidential duty, or a unlawful grab for presidential authority at the expense of Congress. Where are the proponents of that absolutist view now?
Gratias.
Obviously Presidents should be allowed--even encouraged--to clarify the meaning of what they are signing when Congress sends a bill that is unclear, or even potentially inconsistent. This is ok for any President, be it Bush, Clinton, or Obama. It also doesn't seem that the statements are binding in any way. However, when do they rise to the level of a more serious disagreement between the President and Congress, showing that the President has no intention of carrying out something that Congress did intend to be carried out? How should that situation be dealt with? I'd like to hear some proposed criteria for signing statements that fall into this category. I think they're basically wrong no matter which President issues them, but it's a harder matter for the layperson to judge when a statement falls into that area.
My issue is, OBAMA F--KING LIED. He said he would not use signing statements. He has used signing statements. If he left himself a loophole, or tried to "nuance" it, he certainly gave the voters the impression he was NOT going to use signing statements.
He is a typical Chicago machine politician, no more no less, and for those of you who still have not figured it out, to paraphrase Glenn's words, if you are not sure who the rubes are, look in the mirror.
yeah, its a shame something "petty and small minded" is in a major national publication and not a blog.
No, he didn't. But feel free to keep ignoring that fact.
Signing statements as being pitched back and forth here generally refer to a President asserting that some part of a bill imposes or infringes upon presidential prerogative, and that further, the president will observe that portion of the bill consistent with the Constitution or some similar language. In other words, he intends to ignore the questioned section. Whether what GWB did is any different that what the current president has done is the argument perhaps.
As an example, see Chris L's post at 8:55. President Obama asserts some sections of bills which direct the executive to do or not to do something are actually unconstitutional forays by the legislative branch into executive authority, and that further, President Obama will take action under the relevant section "consistent with my authority" or some similar language.
When GWB was in the White House, there was tremendous criticism of the same type of qualifying statements, although GWB's most well known signing statements dealt with attempts by Congress to curb acts termed "torture" but which were disputed at the time by OLC lawyers as being within existing law. (at least that's m recollection of the largest complaint).
In 2006, the ABA, with the support of a number of people now within or supportive of the current administration, wrote a paper which termed all signing statements as being wrong and a misuse of Presidential power. The point of the some argument here is about the failure of the same critics of GWB to raise the issue when the sitting President engages in such actions.
Thus, the back and forth "it's the same" - "No, it's not." (I'm in the "it was only bad because GWB did it" and "Now it's OK because BO is doing it" variety.)
I'm sure someone will quickly point out the deficiencies of my summary.
In fact, Obama did say that. From the tape:
"The President can veto it or sign it." Veto it or sign it. Period.
So in fact, although Obama said several different things at once, he indeed did say he would not use signing statements. It's not the "yes" (after "Do you promise not to use . . .") at the tape beginning that condemns President Obama.
It is where Obama defined signage —his own definition as a Constitutional scholar— as an unconstitutional abuse of the office.
Petraeus/Volokh '16
I have to say, this is just one of many issues where Obama-bashers denounce an action (whether or not it is actually what they claim), yet were mostly silent before, when it actually was occurring.
"he would not try 'get his way' with them as Bush did"
Whose way do you imagine he seeks to get?
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