Harold Koh on Signing Statements

by Roger Alford

Let me follow up on Julian’s post and add that Harold Koh was equally derisive of signing statements during the Bush Administration. Here’s the transcript and video of an exchange between OLC nominee Dawn Johnsen and State Department Legal Adviser Harold Koh at the 2006 annual meeting of the American Constitution Society.

Just a few choice excerpts that will give you a taste of the general attitude about signing statements as expressed by Koh and Johnsen at that event:

Ms. Johnsen: … [T]he Bush administration’s initial argument typically is not the straightforward constitutional one, but instead that we have to twist the meaning of federal statutes beyond their clear meaning to match a very sweeping view of presidential power. So that will be the first part of our discussion talking about a few examples of what I view as this disregard for the rule of law… Let’s start with an issue that has been very much in the news in recent months: presidential signing statements…. Before the Bush administration, quite an obscure, I believe, document.

Ms. Johnsen: I think it would be useful to make this a little more concrete and actually read from a signing statement issued by President Bush, and I want to ask Harold first to comment on this particular one. So when President Bush signed this into law this is how he said he would enforce the McCain Amendment. “In a manner consistent with the constitutional authority of the president to supervise the unitary executive branch and this commander-in-chief and consistent with the constitutional limitations on the judicial power.” That’s rather innocuous sounding I think on the surface, Harold. What’s the problem with that kind of a signing statement or this particular signing statement?

Mr. Koh: It’s like The New Yorker cartoon where the space aliens are coming out and writing a message in the sky, and two earthlings are looking at it, and one says “I’m not sure, but whatever it means, it can’t be good.” (Laughter) … The president has no line-item veto authority, so he can’t use a signing statement as a line-item veto, and … when there is no veto you can’t override it. You can’t override a signing statement…. So I think that at the end of the day I’m not sure what it means. … [T]he main purpose is to avoid predictability. It would lead to a point where there would be an as-applied constitutional challenge down the road, but whatever it means, it can’t be good.

Ms. Johnsen: Let me follow up with the argument that I often have heard or sometimes have heard in defense of signing statements along the lines that President Bush has used them. It’s better than a veto. Then, it’s actually more respectful of Congress to put into effect as much of the statute as possible, sign it into law, and just put these few limitations out there in the signing statement better than vetoing the whole thing and sending it back to Congress.

MR. Koh: Well, I was talking to an official of the Ford administration, who was telling me that Gerald Ford in his brief period as president did something like 56 vetoes. And the reason was that there was a lot of pork and he was eliminating the pork, so he would just veto it and send it back. I think that just a more upfront approach is if the president actually disagrees with something, he should veto it.

Mr. Koh: We don’t need graffiti on the McCain Amendment. It’s clear. Once it’s there, don’t add anything. If you’re adding anything, you’re trying to modify its effect. Why are you trying to modify its effect?

http://opiniojuris.org/2009/07/01/harold-koh-on-signing-statements/

4 Responses

  1. Roger, given that Harold Koh was on the ABA task force, I don’t think it’s too surprising that he would regard many signing statements with disfavor.  That said, I took the ACS exchange as criticizing President Bush’s statement that the McCain Amendment would be enforced “[i]n a manner consistent with the constitutional authority of the president to supervise the unitary executive branch and this commander-in-chief and consistent with the constitutional limitations on the judicial power” — including on the grounds that it was not clear what it meant and, moreover, that there was (probably) no constitutional basis for reserving to the President the authority that the signing statement was (probably) reserving.  So it seems to me that this exchange might warrant criticism of Obama’s signing statements on grounds of excessive vagueness or lack of a constitutional foundation.  Do you think those criticisms would be well founded? My initial impression is that Obama’s statements are clearer and reasonably grounded, but you may differ.

    In any case, we have good reason to think that not everyone who criticized Bush’s practices agreed with the ABA’s sweeping dismissal (which seemed much broader even than Koh’s remarks quoted here) — as Julian pointed out, Dawn Johnsen and others now already at OLC went on record in 2006 as disputing some of the ABA’s central conclusions (http://gulcfac.typepad.com/georgetown_university_law/2006/07/thanks_to_the_p.html).  So again, I don’t think what we are seeing here is so much of a volte-face by particular individuals as a disagreement about how to articulate and apply a hard-to-define standard.   I have no doubt that there will continue to be disagreements about whether a president’s constitutional concerns are well founded, or whether the practice is internally consistent or consistent with separation of powers, but I guess I see that as a much more productive discussion than this hypocrisy meme.

  2. Ed,

    Well said, but the tone and tenor of the ACS conference failed to convey the nuance you are articulating.

    The really useful thing would be to conclude that signing statements are not inherently evil, and a comparison of their use across administrations and in different contexts would merit someone’s time and attention.

    Roger

  3. Roger, thanks for the reply.  It’s also worth noting, I think, that not only did Johnsen ask Koh to make the discussion concrete by addressing that *particular* signing statement (that is, to consider the kind of context you and I agree is important, and Koh indeed addressed what it meant for that legislation in light of that assertion of constitutional authority), but Beth Nolan also began the ACS discussion by stating the following: “Well, let’s start with signing statements are not malum in se. They are not bad things and I am not – I don’t want any signing statements out there to feel bad about what I’m going to say.”  I think that means that she joined Johnsen, at least, in stating expressly that signing statements are not inherently evil.

  4. Ed,

    Yes I agree.  I think Beth Nolan and Doug Kmiec both were more careful than Harold Koh in the discussion about signing statements.  Koh’s comments were entertaining, but not particularly thoughtful. 

    Roger  

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