Saturday, April 16, 2011
President Obama issued a signing statement yesterday on H.R. 1473, the FY 2011 budget bill recently negotiated between the White House and Congress that avoided a shut-down and will keep government operating through the fiscal year.
President Obama took issue with two provisions in the bill: the restriction on use of funds to transfer Guantanamo detainees to the U.S. (thus preventing trials in Article III tribunals); and the restriction on use of funds to pay salaries of presidential advisors, the so-called "czars."
The former restriction isn't new, and the administration previously registered its constitutional objections to the restriction. In short, the administration says (correctly) that Congress can't interfere with its ability to execute the law by trying detainees for violation of U.S. law in regular U.S. courts. President Obama's statement yesterday reiterates the core objection to the restriction on transfers and says that the administration will work to change it (while respecting it in the meantime).
The latter restriction--the restriction on use of funds to pay for presidential advisors--is new. Section 2262 of the bill reads as follows:
None of the funds made available by this division may be used to pay the salaries and expenses of the following positions:
(1) Director, White House Office of Health Reform.
(2) Assistant to the President for Energy and Climate Change.
(3) Senior Advisor to the Secretary of the Treasury assigned to the Presidential Task Force on the Auto Industry and Senior Counselor for Manufacturing Policy.
(4) White House Director of Urban Affairs.
The restriction raises serious separation-of-powers concerns. On the one hand, opponents claim that these positions are "officers" that require Senate advice and consent (confirmation) under the Appointments Clause. Without Senate confirmation, appointments to these positions are unconstitutional. On the other hand, many argue that these positions are merely presidential advisors that do not require Senate confirmation, and that congressional restrictions on the President's authority to make these appointments violates core Article II functions. In between these two poles: The positions may be "inferior officers," and then the debate is whether Congress has properly vested authority to appoint them under the Appointments Clause.
We explored these questions with regard to the so-called "Pay Czar" here, here, here, and here (this last post linking to the Federalist Society on-line debate in which I joined Martin Flaherty and Michael McConnell).
President Obama's signing statement raises and explains his constitutional objections in some detail, consistent with his commitment to issue such statements only sparingly, and to explain them well when he does it. He also points out that his statements on this legislation are necessary because of the nature of the bill: It had to get his signature on Friday to keep the government in business. A veto would have shut the government down until the White House and Congress could have worked these issues out. (President Obama has used constitutional signing statements much less frequently, and much less aggressively, than his predecessor. But he's still used them.)
The Bill's urgency and the President's transparency don't mitigate the core separation-of-powers problem in constitutional signing statements themselves. When the President signs legislation, but declines to abide by pieces of it on constitutional grounds, that looks an awful lot like a line-item veto. If so, the signing statement itself runs up against the constitutional requirements for bicameralism and presentment--that the same piece of legislation has to pass both houses and receive the President's signature--no matter how necessary or well explained it is.