Is Obama Really Hypocritical on Signing Statements? Yup.
Was I unfair in calling Barack Obama “hypocritical” in issuing his (otherwise sensible and constitutional) signing statements last week? Hypocrisy is a strong charge. On the other hand, Obama explicitly denounced the “theory of George Bush that he can make laws as he is going along” by using signing statements and then flatly promised not to use any such statements when in office. See for yourself.
So maybe hypocrite is not so hyperbolic in this context. Is there any defense for Obama? Not really.
It is true that his entire OLC team has been on the record in favor of certain signing statements and the President’s power to ignore unconstitutional statutes. On the other hand, a high-profile ABA Task Force, including folks like Harold Koh and Kathleen Sullivan, did categorically denounce ALL signing statements of the kind that President Obama recently produced (he’s already got six so far, about one per month). The ABA as a whole has adopted the report and ABA Presidents routinely denounced President Bush’s use of such signing statements as “contrary to the rule of law” and ignoring “fundamental principles” of separation of powers. (In other words, they sounded like Obama used to, before he became President). Charlie Savage of the NYT won a Pulitzer for writing about Bush’s supposedly abusive use of signing statements during the Bush era. Will this same crowd go after President Obama as well? Well, four days have passed (and four months have passed since Obama’s first signing statements back in March as John Elwood at Volokh has documented) and, as far as I can tell, Koh, Sullivan, and the ABA remain mum.