Monday, March 9, 2009

Obama Cautions Agencies on Reliance on Bush Signing Statements

President Obama ordered executive officials to check with AG Eric Holder before relying upon Bush signing statements to disregard federal law, Charlie Savage reports in today's on-line NYT.  Here's President Obama's statement.

President Bush issued an unprecedented number of signing statements, frequently using them to declare portions of acts unconstitutional and to declare his intention not to enforce those portions.  Most of these statements were broad and cryptic, however, so we didn't always know exactly which portion of the act was offending or the precise legal grounds for the President's objections (although we could often guess).  As a result, we didn't always know which portions President Bush refused to comply with or to enforce, thus making it very difficult to challenge the President's claims.  Moreover, some Bush signing statements were based upon extraordinarily broad claims of inherent executive authority and widely discredited legal analysis (that we're now seeing retracted, e.g., in the recently released OLC memos). 

Savage reports that President Obama hasn't entirely disclaimed signing statements, but his position seems more consistent with the use of signing statements by prior Presidents.  Savage:

"In exercising my responsibility to determine whether a provision of an enrolled bill is unconstitutional, I will act with caution and restraint, based only on interpretations of the Constitution that are well-founded," Mr. Obama wrote in a memorandum to the heads of all departments and agencies in the executive branch.

The problem, of course, is that these lines aren't always that clear.  In moving forward with signing statements, President Obama should agree to identify with specificity the offending portion of the legislation and identify the precise constitutional objection (with at least some legal analysis) to the offending portion of the law.  At least this would put the whole business in the sunshine and allow for some oversight or challenge to the President's claims.

UPDATE: He did.  Paragraph 3. of the statement, just posted on the NYT web-site, says this:

To promote transparency and accountability, I will ensure that signing statements identify my constitutional concerns about a statutory provision with sufficient specificity to make clear the nature and basis of the constitutional objection. 

SDS

http://lawprofessors.typepad.com/conlaw/2009/03/obama-cautions.html

Executive Authority, News, Separation of Powers | Permalink

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Comments

I'm a little unclear on how signing into law a bill containing purportedly unconstitutional provisions jibes with the requirement of the oath of office to "preserve, protect, and defend" the Constitution.

Posted by: CGeorge | Mar 11, 2009 10:39:16 AM

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