Three days ago, President Obama took a stand against signing statements:
President Obama tried to overturn his predecessor again on Monday, saying he will not use bill signing statements to tell his aides to ignore provisions of laws passed by Congress that he doesn’t like. . . Obama sent a two-page memo to department heads saying he would only raise constitutional issues in his signing statements and do so in “limited circumstances.” These statements “should not be used to suggest that the president will disregard statutory requirements on the basis of policy disagreements,” the memo said.
Bush’s tactics were not cited specifically. Obama also instructed agencies to consult Attorney General Eric Holder before relying on any previous signing statement as a basis for “disregarding, or otherwise refusing to comply with any provision of a statute.” . . .
In his memo, Obama asked aides to work out constitutional problems before Congress acts.
Michelle Boardman, a deputy assistant attorney general in the Bush administration, said the Bush White House tried to do just that. She said it is the executive branch’s responsibility to point out conflicts between newly passed laws and the Constitution.
Obama “will discover for himself just how infrequently Congress shows any interest in removing unconstitutional provisions,” she said.
Boardman’s remark was prophetic, because President Obama issued his first signing statement just two days later:
President Barack Obama, sounding weary of criticism over federal earmarks, defended Congress’ pet projects Wednesday as he signed an “imperfect” $410 billion measure with thousands of examples. . . On another potentially controversial matter, the president also issued a “signing statement” with the bill, saying several of its provisions raised constitutional concerns and would be taken merely as suggestions. He has criticized President George W. Bush for often using such statements to claim the right to ignore portions of new laws, and on Monday he said his administration wouldn’t follow those issued by Bush unless authorized by the new attorney general.
So the Obama Administration’s position on substantive signing statements is identical to that of the Bush Administration (and others as far back as the Monroe Administration), to use them to identify constitutional problems in legislation and to direct the executive branch how to deal with them. The only difference is a new president bringing new ideology.
This is expected. Regardless of what they say on the campaign trail, presidents invariably are fans of presidential power. Senator Obama may have chafed at presidential signing statements, but President Obama is going to use them all he likes. The only surprising thing is that anyone would be surprised.
There is something new here, though. Before issuing his first signing statement, President Obama did issue a memo overturning all previous signing statements. As far as I know, that hadn’t been done before. It makes sense, though, from Obama’s point of view. He need not support his predecessors’ executive power in order to exercise his own. Posturing aside, all his memo Monday did was order the executive branch to follow his signing statements, but not to follow anyone else’s without checking first.
In this, Obama has surely set a new precedent. The next Republican president no doubt will issue a similar memo overturning all previous signing statements. On that day, there will be much hue and cry from Democrats, and the signing statement will become bad again. Until the next Democrat.
POSTSCRIPT: More in the next post.