Obama's First Term Signing Statements

I have done my counting for President Obama's first term signing statements, and if you believe that he promised to use them in only the most extreme circumstances, than you can breathe a sigh of relief.  Here is what the first term of each President has looked like from Reagan through Obama:

President	Challenge	Con	Rhet	Total
Reagan	51	34	106	140
BushI	246	118	105	223
Clinton	55	27	141	168
Bush II	713	86	23	109
Obama	78	10	21	37

Obama has issued very few signing statements in his first term in office.  From 2009-2012, Obama issued just 37 total signing statements, compared with 100+ from each of his predecessors. Interesting, the President who comes closest to Obama in total number of signing statements is his immediate predecessor, George W. Bush, who has been the most reviled where signing statements are concerned.

In Obama's final year of his presidency, he issued seven signing statements, and none that challenged any provision of law.  But before we break out the cigars, it is important to note that Obama issued the third most challenges, coming in behind George 43 and his father, George 41. So he may have not issued many signing statements, but he gets his money worth when he does.

It is hard to know whether these numbers are indeed completely accurate.  In one respect, the Daily Compilation of Presidential Documents have now been adding keywords to their entries, so signing statements now contain the label "bill signings".  In the other respect, according to a January 2010 NY Times report by Charlie Savage, the administration claimed it would not use  the signing statement to voice disagreements with law where disagreements have already been made, and may instead use the OLC to voice new disagreements--and OLC opinions are not always published.  So we are left wondering what these numbers really mean.

You would hope this would be an issue the Congress would take more seriously, and not just when it comes to partisan advantage.  Despite what some scholars think about congressional oversight of the signing statement, the fact of the matter is there is little to no evidence that Congress has a handle on how, why, and when the president uses the signing statement, burglar and fire alarms notwithstanding.

Thus I have taken advantage of the administration's "We the People" project to ask the administration to make the signing statement transparent, and allow a tracking mechanism similar to the executive order.  You can find the petition at: https://petitions.whitehouse.gov/petition/publish-each-and-every-refusal-enforce-laws-president-signs-his-bill-signing-statements/wdmSnGlg?utm_source=wh.gov&utm_medium=shorturl&utm_campaign=shorturl

Please take the time to sign my petition if you think this is an issue that warrants attention.

NDAA and Chuck Hagel

President Obama signed the National Defense Authorization Act for FY 2013, and typical with this particular bill, the signing was accompanied with a signing statement. For those who watch the signing statement, the NDAA is a much watch piece of legislation because it almost always sparks a signing statement.

There is a great deal to look over in Obama's signing statement--the one that received a great deal of attention was Obama's ongoing struggle with the Congress over the issue of enemy detainees--whether they can be transfered to a 3d party country or whether they can be tried in the U.S.--most importantly whether we can close down Gitmo.  This particular struggle has been in every one of the NDAA bills Obama has signed, and has warranted his response in each one.

I will save my commentary on the signing statement for another blog post, because it clearly violates Obama's memo on the signing statement issued back in 2009.

What I want to focus on is Section 533 of the bill, which ostensibly protects military clergy from doing anything that may violate their "sincerely held moral principles & religious beliefs." While it sounds like something to applaud--and in fact is redudant--there is an underlying reason for its appearance in this bill.  Section 533 is designed to insulate and protect from military punishment any clergy who refuses to counsel or marry military personnel who are homosexuals.

In Obama's signing statement, he writes that the "Secretary of Defense will ensure that the implementing regulations do not permit or condone discriminatory actions that compromise good order and discipline or otherwise violate military codes of conduct."  While Obama maintains he is committed to ending Dont Ask, Don't Tell, and to "protecting the rights of gay and lesbian service members," it should be asked whether his Secretary of Defense holds the same commitment in light of the Hagel's past views on homosexuality.

Finally, the NDAA

President Obama has an interesting definition of transparency.  For claiming to be on the up and up, he has been awfully cagey when it comes to things he does not want the public or the press to know about. Just last week, on the Friday before Christmas, when everyone and their brother was heading out of town, Obama releases a signing statement to an omnibus spending bill that had at least 23 separate, constitutional challenges.  And this when his administration had been rattling the cage about his constitutional objections to the National Defense Authorization Act for FY2011.  Sort of like Three Card Monte.  Now on New Years Eve--in a move reminiscent of George W. Bush's signing statement to the "Department of Defense, Emergency Supplemental Appropriations..." bill that contained the ban against torture, which Bush released December 30, 2005, the Obama administration released the signing statement to the National Defense Authorization Act for FY 2012, hereafter NDAA.

A couple of interesting things up front.  First, unlike the previous signing statement, this signing statement has been filed under "Statements & Releases" and not "Presidential Memoranda."  A distinction with a difference.  Second, this was a difficult signing statement to take apart because in part he uses the language of a constitutional signing statement, but I don't think he is making constitutional challenges.  For instance, in one section, Obama doesn't exercise a constitutional challenge, but he makes clear that he may down the road.  For instance, in the paragraph dealing with implementation procedures, Obama writes "...I will exercise all of my constitutional authorities as Chief Executive and Commander in Chief if those procedures fall short, including but not lmited to seeking the revision or repeal of provisions should they prove to be unworkable." So it isn't a constitutional challenge more than a veiled threat. 

The third thing of interest--just minor--is that Obama uses his guidance to interpretation by relying upon the conference report that accompanied the legislation--Obama writes: "Going forward, consistent with congressional intent as detailed in the Conference Report, my Administration will interpret section 1024 as granting the Secretary of Defense broad discretion to determine what detainee statuts determinations in Afghanistan are subject to the requirements of this section."  I say this is interesting because Presidents make it a habit of objecting to be bound to any extraneous legislative matter that is not in the text of the law itself.  For instance, Congress will routinely define sections of a bill by the deliberations that took place on the floor of the House or the Senate, or in a report that came from one of the congressional committees. My sense in this case is that the White House objected to a provision of the bill, and to get it passed, the White House & the Congress came to an understanding in Conference that let the bill get sent to the White House and signed.  It isn't the first time the president has referenced a conference report in a signing statement, but it is interesting the contradiction.

Now on to what did get challenged!  I found at least 10 constitutional challenges in this signing statement--again, there may be more, but it was difficult to ascertain whether his "intent to construe" was really based on constitutional prerogatives or was instead guided by the room that Congress allows him to move?

First, as promised, the administration once again dinged two provision that tries to tie the administration's hands when it comes to handling detainees.  First, there is Gitmo.  The Congress has been adamant--as a political ploy--to make an issue out of trying Gitmo detainees in the US, despite the fact that the Bush administration did just that.  And in a swipe, Obama states in full rhetorical flourish:

For decades, Republican and Democratic administrations have successfully prosecuted hundreds of terrorists in Federal court.  Those prosecutions are a legitimate, effective, and powerful tool in our efforts to protect the Nation.  Removing that tool from the executive branch does not serve our national security.  Moreover, this intrusion would, under certain circumstances, violate constitutional separation of powers principles.

The other challenge was the restriction on allowing the executive branch to transfer detainees to a 3d party country.  Obama also dings this provision as a violation of separation of powers, and will "interpret them to avoid the constitutional conflict."

The rest of the challenges are related to Congressional meddling into foreign affairs, either the US relationship with Russia to the imposition of sanctions to Iran.  In each of the provisions, Obama argues they violate foreign affairs and diplomatic communications, as well as may impact national security secrets, and he will treat them each as non-binding.

The Candidates on Executive Power

Back in 2008, The Boston Globe ran a series of questions by the candidates for the nomination for the presidency, seeking their views on executive power. Now this time around, it is The New York Times that is prodding and poking the candidates to determine their views on executive power (to be sure, everyone should take these responses with a grain of salt given that Obama's responses are often at odds with his actions as president). In 2008, the responses by the candidates may have been tempered a bit by the overreach of then President George W. Bush. But that was then, and this is now.

The Republican nominees (save Rick Santorum and Michelle Bachmann) have returned their responses to the questions, which has covered the gambit from executive branch secrecy to interrogation to signing statements. And all, with the exception of Paul, have offered fairly beefy views of executive power, in line with the views of the Bush administration. Seems that four years is sufficient time to forget Bush's views on executive power and damage they did to the Republican brand.

I am interested in the subject of signing statements because it is my interest. There are a couple of interesting responses that I wish I was able to follow up in a candid discussion with the candidate himself. First, without any surprise, Ron Paul does not believe in signing statements. It would be interesting to determine what Ron Paul does believe in. I assume he believes in a strict construction of the Constitution, but the Constitution was not written to be strictly construed.

The remainder of the candidates had varying views of the signing statements. The governors had some of the more interesting views, which made me wonder if their understanding of the signing statement was influenced by what they have been told about the signing statement, or rather how they used the signing statement when they were governors? I believe some of the understanding comes from their experiences as governors.

First up in Huntsman. Former Governor of Utah, his answers sound like they were informed from advisers and journal articles, and not so much from experience. How so? Huntsman writes that signing statements are "a well-established tool for making clear the president's interpretation of a bill's terms" and that they serve a variety of purposes--transparency and to help judges interpret the law, similar to what Congress does in the legislative history of bills. You can get this from the law journals. First, the signing statement has rarely ever promoted transparency, including Obama's use of the signing statement. And second, we do not have any evidence that the signing statement makes any difference to judicial interpretation--in all likelihood, Huntsman was fed this line from former AG Meese's justification back in 1986 when announcing the use of the signing statement. Meese wrote:

To make sure that the President's own understanding of what's in a bill is the same...or is given consideration at the time of statutory construction later on by a court, we have now arranged...the presidential signing statement on the signing of a bill will accompany the legislative history from Congress so that all can be available to the court for future construction of what the statute really means.

This sounds a lot like what Huntsman wrote.

Perry's response sounds like it is informed from practice, though I am sure he got help from his staff. He explains that "Signing statements are not new and have been a part of the bill signing process throughout history" though I am sure the NYT question did not ask about the history of the signing statement, and I am sure Perry couldn't tell you just how long that history goes back. He did claim the signing statement was appropriate, though where the "objectionable aspects of the bill are collateral, relatively minor and can be addressed by the appropriate assertion of power by the President." This sounds a lot like Obama's defense of the signing statement back in 2009, when his administration released a memo defending the use of the signing statement.

Last up is Romney, another former Governor, who I am sure found the need for maximum unilateral action as the governor of a blue state. Romney's defense of the signing statement is full throated: he defends its use by noting that former presidents have used them to fulfill "the constitutional obligation to take care that the laws--which include the Constitution--are faithfully executed." For my money, I would have given him a gold star if he would have defended the signing statement based also on the oath clause of Article 2, and not just the take care clause, but props nonetheless. Romney also declares that he would use the signing statement to "set forth my understanding of ambiguous legal provisions or to protect presidential prerogatives established by the Constitution." Again, probably much of the declaration was informed by his advisers, but I am sure that Romney is familiar with the value of a signing statement to executive management.

And last there is Gingrich. Charlie Savage, writing in today's New York Times states that Gingrich "would not issue such statements." I am not sure that is precisely what Gingrich means. When asked, "Under what circumstances, if any, would you sign a bill into law but also issue a signing statement reserving a constitutional right to bypass the law?", Gingrich answers "None. I would not sign a bill into law that contained a provision or provisions I believed to be unconstitutional." But he doesn't stop there. He takes time chastising Congress for sending the President "...very complex but poorly written pieces of legislation", a practice, by the way, that took place when he was Speaker. But he continues with that: he condemns Congress for sending complex and poorly written pieces that "...may make it necessary for the President to issue a statement upon signing the legislation that provides guidance for how the legislation will be executed." That sounds very different from "None." In that part of his statement, it seems that Gingrich is saying that as president, he will not issue a signing statement so long as the Congress sends him legislation that does not require that a signing statement be used. Am I wrong here? It almost sounds to me like Gingrich is saying he will not use the signing statement to strike out provisions he believes are unconstitutional--for that, I presume he will veto it. But it does sound to me like Gingrich will use the signing statement to set the understanding of how various provisions should be interpreted, again I presume, even if it contradicts the wishes of the Congress.

Obama's Latest

The Obama administration has been hyping all week a potential signing statement to the National Defense Authorization Act of 2012. TPM reports on the 21st, in a question to a reporter from the Wall Street Journal, that Obama planned a signing statement to the National Defense Authorization Act's "controversial provisions"--in particular, a ban on trying Gitmo detainees here in the US and sending enemy detainees to 3d party countries. This is a recurrent theme between the Congress and the administration, similar to the back and forth over the White House "Czars". Last January, Congress sent the White House the "Ike Skelton National Defense Authorization Act for FY 2011", and the President issued a signing statement objecting to Sections 1032 & 1033--the Gitmo provision and the 3d Party country ban. In that signing statement, the President simply objected to the provisions but didn't officially challenge them. In the present case, the administration seems to be ratcheting up the volume by having the attorney general announce the challenge. But I digress.

While all the attention has been on the forthcoming challenge, the administration issued a signing statement to H.R. 2055, the "Consolidated Appropriations Act, 2012." The signing statement has at least 23 separate and distinct challenges, ranging from separation of powers concerns to foreign policy prerogatives to "Take Care" protections--it is a sweeping statement to a massive piece of legislation. I say that it has at least 23 challenges because the actual number is uncertain. Remember that Obama came into office never refusing to use the signing statement, but promising when he used it he would be transparent--we would know what precisely was being challenged, what constitutional provision it violated, and Congress would be informed whenever possible. In the latter days of the Bush administration, the objections became so vague that it was difficult to understand what challenges were at issue. Now it seems that this is the case with the current Obama administration. For example, Obama writes: "...several provisions in this bill, including section 627 of Division C and section 512 of Division D...". So he lists two of the provisions but not the other ones. Or later he writes "Numerous provisions of this bill purport to condition the authority of executive branch officials to spend or reallocate funds on the approval of congressional committees." He lists a couple of examples, but not enough to account for "numerous".

The signing statement also formally took on Congress's attempt at banning the trial of Gitmo detainees on US soil as well as sending detainees to 3d party countries. Obama writes that both of these provisions (Section 8119 of Division A for Gitmo and Section 8120 of Division A for the transfer) "violate separation of powers principles" and he intends on interpreting "them in a manner that avoids constitutional conflicts" while working with the Congress for their repeal. The same language also appears in the National Defense Authorization Act, FY 2011, and thus we should see a similar signing statement with identical language contained in the current statement. It also begs the question of why the focus on the latter statement, when he made the challenge in the former?

One final interesting thing to note about this signing statement that I cannot believe is a oversight or a mistake (generally nothing is cleared for publication in the White House without a serious vetting). As I have noted before, the administration has deliberately gone out of its way to make finding these signing statements difficult, something even the previous Bush administration did not do. First, they got rid of the Weekly Compilation of Presidential Documents, long the clearinghouse for presidential signing statements (and the documents I spent hours pouring over when I did my dissertation work). They said they were switching to the Daily Compilation of Presidential Documents, but then for the longest time they did not update the information past 2009. Even now it is only updated through October 20, 2011. Second, they have made a mess of the White House website. In the Bush administration, all one needed to do was to go to the "News" site to find the signing statements, but no more. The Obama administration has a place for "Signed Legislation" and a place for "Statements & Releases", and sometimes you can find signing statements at one and sometimes at the other. But what is clear is that there is no one place to go and find them. Now for the thing that struck me as interesting. In the recent iterations of signing statements, they were categorized under "Statements & Releases." The most current signing statement--and the one I refer to here--is categorized as Presidential Memoranda. I say this because signing statements are not Memoranda. Memoranda has its own classification similar to an executive order. I ran this by Lou Fisher today, and he agreed with me that a signing statement is a different beast. It may be that the administration is beginning the work on nudging the signing statement over the line into legal relevancy. Whatever the case, it merits closer attention to future signing statements.

The Signing Statement and the Courts

Tomorrow, Monday November 7, 2011 is the day those of us who follow the signing statement have been waiting for, because this is the day the Supreme Court will hear oral arguments in the decision M.B.Z. v Clinton (Docket No. 10-699). 

This case involves the American parents of a child born in Jerusalem who wanted their child's birth certificate to declare the place of birth "Jerusalem, Israel."  When Congress passed the Foreign Relations Authorization Act for FY 2003, the directed the Secretary of State to add "Israel" to the birth certificates of American citizens born in the Holy City.  Up to this time, it was the policy position of the U.S. to stay neutral as to the ownership of the City--Congress decided to change that policy in a law signed by President George W. Bush.

When President George W. Bush signed the law, he issued 21 separate and distinct challenges to numerous provisions, including two challenges (Sections 325 & 687) that grounded in the Due Process Clause of the 5th Amendment!

In this particular case, Bush objected to Section 214 of the Law, which is Congress ordering the Secretary of State to add "Israel" to the birth certificate and passports of children born in Jerusalem.  Bush wrote:

Section 214, concerning Jerusalem, impermissibly interferes with the President's constitutional authority to conduct the Nation's foreign affairs and to supervise the unitary executive branch. Moreover, the purported direction in section 214 would, if construed as mandatory rather than advisory, impermissibly interfere with the President's constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states. U.S. policy regarding Jerusalem has not changed.

M.B.Z. was born in 2002 in Jerusalem to American parents, and his parents requested that the Israel designation be added to his passport, which the Secretary of State refused to do.  The lower courts rejected their claim under the "Political Questions" Doctrine--that is the question at hand was better suited for the President and the Congress, not the courts.  In a surprising reversal, the Supreme Cour agreed to hear the case tomorrow.

The two questions at issue: First, the Political Questions issue of whether the Courts are competent to hear this claim and Second, whether the President's foreign policy prerogatives prevent Congress from legislating U.S. Foreign Policy.

Given how settled the Political Questions Doctrine seems to be, it seems to me that Congress will direct its attention toward the struggle over foreign policy prerogatives, as well as take the opportunity to address the constitutionality of a presidential signing statement.  If the Supreme Court decides to address the signing statement, it will be the first time the Supreme Court has take on the issue head on.  Also interesting is that this Supreme Court is made up of a number of justices who themselves worked in the Justice Department, and some who were instrumental in developing the signing statement into a potent presidential weapon.

Either way, this is a sleeper decision which means it has not gotten much media attention, but it clearly should.  For a lucid overview of the case, check out Neil Kinkopf's panel discussion to the American Constitution Society.

The House Strikes Back

The Financial Services and General Government Subcommittee of the House of Representatives Appropriations Committee reported their appropriations bill funding most of government for FY 2012 yesterday. The bill itself renews a battle the Congress had in April of this year when it sent the continuing appropriations bill for the DOD to President Obama, which he signed and then challenged in a signing statement. The signing statement seems to be something the Republicans in Congress are beside themselves in presidential usage, which would be funny if it weren't so sad.

In the continuing appropriations bill, the Congress attempted to shut down Obama's "Czars" overseeing Health Care reform, Climate Change, the President's Task Force on the Auto Industry and Manufacturing Policy, and the White House Director of Urban Affairs. President Obama, in his signing statement, challenged this section as interfering with the president's prerogative to obtain advice from his subordinates, despite the fact that not one person is filling these positions. In the current piece of legislation--H.R. 1--the House Subcommittee has put the shut down back in the game. In Section 632 of the bill, the Subcommittee states: "None of the funds made available by this Act or any other Act may be used to pay the salaries and expenses" of those positions. Thus far the White House hasn't issued a challenge via a "Statement of Administration Policy (SAP)", but expect one at some point. The positions continue to remain vacant, so one would wonder what the big deal is--why so much energy is being spent trying to kill, or save, these positions. I am sure the arguments on both sides are couched in constitutional language, but in reality this fight is completely political. The congressional Republicans want to campaign on killing health reform, climate change, etc. and the President wants to deny them the opportunity, and campaign on saving health reform, climate change, etc.

And the Subcommittee has taken up the issue of the signing statement in H.R. 1. In Section 203, they write:

None of the funds made available by this Act may be used to pay the salaries and expenses of any officer or employee of the Executive Office of the President to prepare, sign, or approve statements abrogating legislation passed by the House of Representatives and the Senate and signed by the President.

It is another attempt in a line of attempts by the Congress to make it look like they are really doing something about the signing statement, but really aren't. The President has the right to obtain advice from inferiors within the Executive Branch. The Founders put these folks in the Constitution to do just that. While I am sure Obama will challenge this provision (should it make it out of reconciliation), I am sure the Courts would also disagree with the provision, should someone have standing to bring the case before it. The Congress has the power to challenge the signing statement already within its grasp--provisions like this are designed to aid Members on the campaign trail as "standing up to Obama."

The bill also contains another provision that is likely to be challenged by Obama only because it already has been challenged. Section 713 of the bill protects whistleblowers--a popular provision on the Hill, and one championed by Senator Obama. But funny thing happens on the way to the White House. A change in institution changes your perspective completely.

In Obama's first year in office, he signed an omnibus spending bill that contained whistleblower protections added by Senator Charles Grassley, a long time champion of the protection. In that signing, he challenged the provision for "detracting from his authority to direct the heads of executive departments to supervise, control, and correct employees' communications with Congress..." Obama is not the first person to challenge whistleblower protections. President George W. Bush did ju jitsu to a provision in the "Sarbanes-Oxley" bill where he was able to construe whistleblower protections in the financial sector to pertain to apply on when Congress is investigating an issue. While it may seem like a stupid thing for a president to obstruct, from the White House's point of view, they want to know about any communications with anyone from inside the Executive Branch to anyone outside the Executive Branch. Given the highly partisan nature of American politics, the White House wants to protect against partisans in the Congress or media luring partisans inside the Executive Branch out in an attempt to divulge information that would be politically embarrassing to the President. And given the nature of our politics, it is easy to see that scenario unfolding.

There is another interesting provision in the bill. Like all Federal appropriations bills, it contains a number of provisions against Federal money being used for purposes of propaganda. In Bush's second term, there arose a constitutional conflict between the Congress--specifically the GAO--and the White House--specifically the OLC--over the production and distribution of video news releases--prepackaged news stories released to local television stations that contain a partisan slant, all without the audience being aware that the story is a hit job. In H.R. 1, not only are there multiple prohibitions against using money for propaganda purposes, but also Section 734:

Unless otherwise authorized by existing law, none of the funds provided in this Act or any other Act may be used by an executive branch agency to produce any prepackaged news story intended for broadcast or distribution in the United States, unless the story includes a clear notification within the text or audio of the prepackaged news story that the prepackaged news story was prepared or funded by that executive branch agency.

So what are the other provisions against propaganda designed to prevent?

For all the excitement generated over the use of the signing statement, Congresses prohibition got very little play, which is probably unexpected. Maybe when the president uses the signing statement to nullify the ban on using the signing statement will it get the press attention the Republicans hoped, which is probably expected.