Is Obama Really Hypocritical on Signing Statements? Yup.

by Julian Ku

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.

http://opiniojuris.org/2009/07/01/did-anyone-oppose-signing-statements-just-koh-the-aba-and-some-guy-named-barack/

23 Responses

  1. Why, O why, don’t the Republicans ask  questions at confirmation hearings of people like Koh who are on record condemning the kind of actions Obama has been taking? I’d love to see the squirming.  It’s too late with Koh, but how about asking Judge Sotomayor about signing statements, for example?

  2. Julian, I think it remains too strong of a word, or at least you have to make a more thorough case.  It’s difficult to state categorically what type, or incidence, of signing statement is permissible, and attempts to stake out a policy position on them tend either to say little of value or to establish a bright line that risks betrayal.  Here I think it’s more the former than the latter.  Briefly:

    1.  To my impression, Obama’s campaign stance was more nuanced than the clip reveals.  Savage reported in 2007 that candidate Obama said “No one doubts that it is appropriate to use signing statements to protect a president’s constitutional prerogatives; unfortunately, the Bush Administration has gone much further than that” (http://www.boston.com/news/politics/2008/specials/CandidateQA/ObamaQA/); later, Savage reported that Obama did not forswear them during his campaign but McCain did (http://www.nytimes.com/2009/03/10/us/politics/10signing.html, also http://www.boston.com/news/politics/2008/specials/CandidateQA/McCainQA/).  I have not researched the question, but this strikes me as consistent with the charge that Obama did not provide an easily identified principle, and less that he has betrayed a promise.  I have no doubt that there are some instances in which he summarized his view more categorically, but you will have seen during the campaign abundant instances in which the candidates contradicted themselves.  (Even in this clip, however, he promised not to use “presidential signage . . . to get his way,” and renounced the practice doing signing statements as a way of “accumulating more power in the presidency” or “using [them] to do an end run around Congress” or making laws as [the President] goes along – again, the better criticism is that this is vague.)  Without seeing more, I think what you have established is that Obama the candidate may have been inconsistent or sloppy, not that President Obama is worlds different than Obama the candidate.  But perhaps there is more you have in mind.

    2.  Procedurally, I think Obama has done what he and other presidents should do: issue a general statement (back in March) providing guidance about when signing statements were appropriate and how they should be issued.  It is, again, not self-evident how that will be applied, but it strikes me as more reasonable than the ABA or ACLU views on the matter.  It is also how I would hope a change in personal position, if change it is, would be accomplished.  So assuming you have established a contradiction, I would favor being satisfied with the substantive outcome and a process of considered reflection and change, and put far less emphasis on an apparent shift — though I think it would be very helpful to keep track of whether his signing statements adhere to the March policy statement.

    3.  You ask where the liberal critics of signing statements of yesteryear are.  I suppose one answer might be that they have their hands full!  But the ABA issued its report in 2006, and it may not feel the need to restate the position; for better or for worse, it also seemed to be reacting at the time to a political and legal criticism that had been building for 5 years and resulted in congressional hearings, so perhaps it does not generate its own momentum.  In my view, people who actually believe that the ABA was right in saying that signing statements betrayed the rule of law can invoke that against Obama without the ABA doing more.

    That’s not to say, however, that I think everyone who criticized Bush’s record over 5 years (as of 2006) has to take immediate measure of Obama, as you would seem to suggest.  As to why *particular* individuals have been mum, I suppose they have their own sufficient reasons (including a tradition that presidential appointees try to hold fire, in preference for working through any disagreements internally).

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  4. Julian,

    For more on Obama’s State Department Legal Adviser Harold Koh’s derisive comments on signing statements see my post here.

    Roger Alford

  5. Response…Owen, very clever there, the “let slip the dogs of the GOP,” and I do understand how listening to yet anothoer video featuring Obama is intolerable, but seriously, you must have skipped over the opening question, or perhaps not understood,
     
    “If the congress offers you a bill, do you promise not to use presidential signage to get your way?”
     
    Obama: “Yes.”  
     
    Followed by the customary condescending pedantry, as if the audience were all third grade elementary school students.  Yes, I can see how a partisan voter would miss that. 

  6. Of course Obama threw in some escape clauses. An extended version of terms like ‘fairness’ and ‘empathy’ (re: which mean I can flaut the law and constitution whenever I want… in their name).

    Of course Obama threw in some escape clauses. An extended version of terms like ‘fairness’ and ‘empathy’ (re: which mean I can flout the law and constitution whenever I want… in their name).

    “No one doubts that it is appropriate to use signing statements to protect a president’s constitutional prerogatives; unfortunately, the Bush Administration has gone much further than that”

    Translation: Whenever they do it, it is bad… but I’m going to do it whenever I want.

     

     

  7. Obama began refining (so to speak) his position on signing statements in preparation for the Omnibus Appropriations Act of 2009. It’s worth noting that on March 9th, he issued a <a href=”http://www.whitehouse.gov/the_press_office/Memorandum-on-Presidential-Signing-Statements/”>Memorandum on Presidential Signing Statements</a>. Oddly enough, two days later, his Omnibus signing statement included five paragraphs’ worth of disclaimers — one among them devoted explicitly to “impermissible forms of legislative aggrandizement in the execution of the laws other than by enactment of statutes.” All of his subsequent statements assert such exceptions, including his statement on creating the Ronald Reagan Centennial Commission! His initial Executive Orders quickly underwent a similar transformation. In light of the astonishing liberties taken by Geithner and Bernanke, the appointment of extra-Congressional Czars in unprecedented numbers — accountable to the the President alone — and the stark shift to defending multiple forms of executive privilege undertaken by Obama’s Justice Department in the courts, I think your charge of hypocrisy is only mistaken in that you leave it at that. While most of the material in Obama’s signing statements can be justified as legitimate push back against Congressional intrusions, the larger pattern here is clearly trending toward a concentration of powers in the Obama Presidency which may ultimately dwarf his predecessor’s putative depredations. Far from dismantling such consolidation, Obama appears to be building his own edifice on those foundations. I would suggest that the President has litle need to “make law” in signing statements. This country runs less on law than upon regulation, and the vast regulatory authority at Executive Branch disposal is really all that’s needed to reshape legislation to the President’s satisfaction. One of the most striking things about the Energy Bill passed last week is just how much power is vested in the President’s Cabinet members. They are to detail mandated initiatives, devise legal parameters, design bureaucratic implementation, determine consequent price tags and disburse funds as they judge fit. The very complexity of such operations resists comprehensive examination, but that’s where you’ll find the real “aggrandizement in the execution of the laws other than by enactment of statutes.”

  8. With apologies for the abysmal formatting above, I will try using the hotlink button for the Memorandum on Presidential Signing Statements this time — and resist (alas!) the temptation to repost the entire thing.

  9. [Please see Mr. Savage's addendum at the end of this, apologizing for the bit of snark written in haste at the beginning of this post. We appreciate the civility and are pleased to include it. KA]

    I see via characteristically vacuous Instapundit snark that you have accused me here, under a broad theme of hypocrisy, of being part of a crowd that has failed to go after Obama about his signing statements.

    That is false.
    http://thecaucus.blogs.nytimes.com/2009/06/26/a-bill-signing-with-reservations/
    http://thecaucus.blogs.nytimes.com/2009/03/30/obama-issues-signing-statement-with-public-lands-bill
    http://www.nytimes.com/2009/03/12/us/politics/12signing.html

    Beyond that, as Mr. Swaine notes above, you have constructed an incorrect premise about Obama’s campaign position on signing statements. It was – very interestingly — McCain, not Obama, who adopted the ABA-style absolutist/purist position, which is no doubt attributable to the fact that Bush’s most famous signing statement gutted McCain’s signature torture ban.

    His statement in that video clip is vague but full of weasel words; he is open to the accusation that in that stump appearance he was pandering to what the questioner wanted to hear. But here are Obama’s fullest campaign remarks about the device, which not surprisingly echo the position that his adviser Laurence Tribe took during the 2006 debate, and is the same as the Clinton/Obama OLC position (i.e., the mechanism is fine as long as the president cites only uncontroversial and mainstream legal theories): http://www.boston.com/news/politics/2008/specials/CandidateQA/question4/

    It is also important to note, in evaluating the tone and placement of the coverage about Mr. Obama’s use of the device so far, that he has not yet used the device to do anything particularly interesting – that is, making a laughable constitutional claim or targeting a politically combustible statute – beyond the mere fact that he is using it at all. Similarly, no one wrote a thing about Bush’s signing statements until he started using them to go after the torture ban, Patriot Act oversight provisions he had agreed to in a compromise to break a filibuster, minimum qualifications for a FEMA director in the wake of Katrina, establishing permanent bases in Iraq, etc.

    You may rest assured that if Obama does likewise, I will eagerly write about it, as I am fascinated by both signing statements generally and by Mr. Obama’s increasing continuity with his predecessor’s practices (http://www.nytimes.com/2009/02/18/us/politics/18policy.html), a demonstration of the one-way ratchet and non-partisan nature of executive power that is a central theme of my book, “Takeover.”

    – Charlie Savage

    Addendum: I just wrote the following note to Glenn Reynolds:

    I should not have snarked about your snark. (The latter snark being your comment at the end, not the summary and link.) It was an intemperate distraction, and the word “characteristically” in particular was unwarranted. I apologize.

    – Charlie

  10. Kenneth Anderson at the Volokh Conspiracy writes about and links to this. One of his commenters lists the last six signing-statements by President Obama. Several are not terribly controversial, but all are clearly ‘end runs’ around Congressional intent. All the signings are executive power accumulations, and several look legally dubious. One looks to be an intended or future defiance of Constitutional (Art II-2, ‘advice and consent’) requirements, making mockery to Mr. Savage’s claim that the President “… has not yet used the device to do anything particularly interesting.

  11. To be perfectly honest, I believe Charlie Savage; he will “eagerly write” about Obama’s signing statements, the only thing is that he’ll praise Obama to the skies for his “courage.”

    Note the shifting of the goal posts; Savage is claiming he criticized Bush for his signing statements because his statements were on “politically combustible statutes” … leaving him and the rest of the Obama-worshipping New York Times hacks an out; they’ll just quickly claim that whatever he’s signing is not “politically combustible” so his issuing a signing statement that they would crucified Bush for should instead be applauded.

    It’s not as if the New York Times‘ newsroom is known for either objectivity, honesty or integrity. This is the same newspaper’s editorial board that had been clamoring for the end of the filibuster for decades, and then all of a sudden turned around to claim it was necessary for the survival of the Republic itself when it came to a Republican in the White House and his judicial nominees.

    Disingenuous double-standards are par for the course at West 43rd – no wonder they’re going broke.

  12. The list of Obama signing statements linked above is informative, and focusing on whether those differ materially from the oft-criticized Bush signing statements (or from the March policy statement) is worthwhile.  At first blush, they look better considered and clearer than the worst of the Bush signing statements (e.g., the vaguer references to the C in C power, the unitary executive, and the judicial power in the McCain Amendment), but reasonable minds may differ, and perhaps it would be fairer to wait a while.

    It’s superficial, though, to say (as the person who posted the signing statements at the other site did) that Obama’s objections reduce to the notion that the provisions “don’t sit well with the President.”  If that’s the level of analysis, then of course one has to either favor or reject signing statements en toto, which for some reason seems to be everyone’s impulse around here — though that wasn’t Obama’s view nor, I expect, Bush’s.

  13. Addendum: I just wrote the following note to Glenn Reynolds:


    I should not have snarked about your snark. (The latter snark being your comment at the end, not the summary and link.) It was an intemperate distraction, and the word “characteristically” in particular was unwarranted. I apologize.

    – Charlie

  14. Dear Mr. Savage, thanks for your addendum above – with Julian’s permission, I’ve edited your comment to add that bit.  We appreciate the civility.

  15. Thank you.

    But now that we’re past that, I would be interested to see Mr. Ku address the substantive points in my comment responding to the post, please.

    Like Mr. Ku, I find that video of Obama interesting. In fact, I linked to it myself back on March 17 in another story I forgot to link to earlier which also demonstrates that I haven’t been mum on Obama’s use of signing statements:
    http://www.nytimes.com/2009/03/17/us/politics/17signing.html

    (In fact if you look at the final three graphs of that article, which contain the link, you will see that I called him out on a more subtle – but true – change from what he said he would do on this topic during the campaign.)

    In sum, this is what I think is the true state of play on signing statements, six months into the Obama era:
    1. Obama said all along that he was going to issue some signing statements (but would do so only with mainstream conlaw theories)
    2. The bill sections Obama has targeted so far are relatively small-bore stuff  – e.g., Chadha violations, limits on who he appoints to the Erie Canal Commission – and he has not cited particularly dubious legal theories.
    3. By comparison, what made Bush’s signing statements particularly interesting was that he was invoking very controversial legal theories to target high-profile stuff (e.g., c-in-c override of the torture ban), as well as his unprecedented volume of challenges
    4. Obama did not take his first opportunity to do something really interesting with a signing statement – to wit, assert a c-in-c override of the new statute forbidding him from transferring Gitmo detainees onto U.S. soil. (I was watching closely to see whether he would do so, as that would have been a guaranteed front-page story)
    5. Still, it is notable that Obama is using the device fairly frequently – certainly moreso than Clinton did. The device is getting institutionalized within the executive branch.
    6. It’s still early in this administration.

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