President Obama (Hypocritically?) Asserts Power to Ignore Federal Statutes

by Julian Ku

Remember the dangerous George W. Bush whose outrageous executive power arguments were leading us toward a Nazi-style dictatorship? It’s a good thing we elected a new President who… also believes that he has the inherent constitutional power to ignore certain federal statutes.  Last week (on Friday afternoon, of course), President Obama released this signing statement:

…[P]rovisions of this bill within sections 1110 to 1112 of title XI, and sections 1403 and 1404 of title XIV, would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with international organizations and foreign governments, or by requiring consultation with the Congress prior to such negotiations or discussions. I will not treat these provisions as limiting my ability to engage in foreign diplomacy or negotiations.

These provisions basically require US administration officials to pursue certain policies at the World Bank and IMF and to report to Congress after, and sometimes before, such policies are pursued.  It is hardly earth-shattering stuff, but it reveals that Obama too believes that he may ignore federal statutes which encroach on his exclusive constitutional powers as President.  The statutory language in these provisions are crystal-clear and no amount of creative statutory interpretation can save him here.  His only recourse is to assert that, as President, he has the power to ignore unconstitutional federal statutes.  

This is, in my judgment, the correct view although it is hardly a matter of wide consensus among lawyers and scholars.  For instance, where exactly is the textual authority for President Obama to conduct foreign diplomacy and negotiations free from congressional interference?  In any event, here is an opportunity for him to be roundly denounced by the ABA and the left blogosphere for asserting the power to ignore the law.  Or they can admit Bush was right on these sorts of things, or at least, that Bush is not a criminal for asserting such a power.  I look forward to their response!

5 Responses

  1. Isn’t the issue not so much the assertion of inherent constitutional powers but whether that assertion also attempts to define the dimensions of those inherent constitutional powers in a way that makes the result non-compliance with the federal statute or international treaty.  It is about what can be done in the low ebb space of good ole Justice Jackson, right? 

  2. Haven’t presidents long issued signing statements rejecting as unconstitutional statutory language requiring the US to vote in particular ways in IFIs? I know President Clinton did, and I believe Presidents Bush (pere) and Reagan did as well.  I think there have also long been signing statements in response to perceived Congressional encroachment on other foreign affairs prerogatives of the Executive, for example in response to sections of statutes that purportedly require recognition of Jerusalem as capital of Israel.  Though I cannot speak for others, I think the informed critique of President Bush (fils)’s signing statements was not that he ever issued them, but that he greatly expanded their number, their scope, and the scope of the presidential powers claimed in them.  Also that he used them when he objected to the principal purpose of the legislation (eg, law on detainees and torture), so the signing statements effected not the addition of an asterisk to a small section of the law but a Sharpie cross-out over the entire law.

  3. John Elwood’s take at VC is here.  I suppose I might be persuaded by some lengthy empirical analysis that GWB’s signing statements really were different from everyone else’s in number, scope, and scope of presidential powers, but for the moment I doubt it.

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