Another Holiday Tradition

Dec 24 '11

President Obama yesterday unveiled this year’s version of a holiday tradition rather closer to presidents’ hearts than the lighting of the White House Christmas tree or the Easter egg roll on the South Lawn. Yes, it’s this year’s quietly released signing statement…

This tradition took root when Pres. George W. Bush famously signed into law a bill banning torture, doing so on the Friday entering the 2005-06 New Years’ weekend, then releasing a signing statement that night on the White House website leaving to his executive discretion the decision whether to actually follow that law.

This year’s edition – see here for text, here for the NYT summary – is in itself far less sweeping, though it deals with some of the same lingering issues of the war on terror, such as the treatment and trial of detainees. Here for instance is a ban on spending money to transfer terror suspects to the US. Obama notes his “intent to interpret and apply” such provisions “in a manner that avoids constitutional conflicts,” i.e., avoids allowing Congress to dictate executive behavior. Other provisions in the presumably-intentionally-vaguely-worded statement (Bush tended to stick to a single formula) object to efforts to control White House staffing (by de-funding the so-called “czar” positions); restricting or requiring diplomatic negotiations; requiring the president to send legislation to Congress, or preventing him from doing so; or requiring a congressional committee to sign off on appropriated expenditures before their outlay. These last are certainly defensible within a separation of powers system – the last, as a form of legislative veto (or in Obama’s lawyers’ words, a “constitutionally impermissible for[m] of congressional aggrandizement in the execution of the laws”) was severely constrained by the Supreme Court in the 1983 Chadha case.

The signing statement is more interesting perhaps as a continuing evolution in Obama’s position on such statements. Obama never said he would not use them, only that he would not do so “to nullify or undermine congressional instructions as enacted into law.”  The problem is, that nullifying or undermining congressional instructions is the entire reason to use signing statements. So that proviso vanished with signing statement #1, leading to a bipartisan scolding.

The president also issued a memorandum in 2009 that said he would issue statements with “caution and restraint, based only on interpretations of the Constitution that are well-founded.”  He noted too that once a claim was made, he would not repeat it, when similar issues arose in later legislation.

Few if any presidents, of course, think their interpretations of the Constitution are not well-founded. Still, why this statement, which does in fact repeat (though with a harder edge on the national security front) past constitutional claims?

One guess is that this was the holiday hors d’oeuvres. Most of the truly conflictual issues surrounding the war on terror and the president’s handling of same arise in the national defense authorization act (HR 1540), which Obama also signed after abandoning a veto threat. As of right now no statement is on the White House website, but stay tuned; will a similar asterisk be attached? If so, the present statement may simply provide cover of sorts – the NDAA statement will not look as lonely if it comes in a series of such statements (“this is just routine…”)

We will see how the president approaches the authorization language he objected to during the legislative process. Even if the president’s claims are legitimate, they should receive the attention and scrutiny they deserve, rather than being shoved behind the Christmas tree.

(Congress could help by not passing massive appropriations and authorization bills in late December, of course. But why ruin a holiday tradition?)