President Obama engaged in a lot of empty grandstanding on Monday when he issued a memorandum setting forth his intended practice on signing statements. The memorandum was intended to suggest a sharp break with President Bush’s practice—and a compliant media has largely adopted that line—but the reality is, appropriately, one of substantial continuity. Among the emptiest parts of the memorandum was Obama’s directive that executive-branch officials “seek the advice of the Attorney General before relying on [previous] signing statements … as the basis for disregarding, or otherwise refusing to comply with, any provision of a statute.” As Bush’s deputy White House counsel William A. Burck put it (in this article): “This isn’t news. It’s how the executive branch has long operated, and it’s totally appropriate.”
Obama’s first signing statement, issued yesterday (and available here), further illustrates how extensive the continuity with the Bush practice is. Obama’s signing statement raised five constitutional concerns about provisions of the Omnibus Appropriations Act of 2009, and those very concerns are prominent among those most frequently raised by Bush in his signing statements. (See DOJ official John P. Elwood’s excellent testimony in 2007 before the House Judiciary Committee for a fuller account of the Bush practice.)
Compare the Obama and Bush statements:
1. Obama: “Foreign Affairs. Certain provisions of the bill, in titles I and IV of Division B, title IV of Division E, and title VII of Division H, would unduly interfere with my constitutional authority in the area of foreign affairs by effectively directing the Executive on how to proceed or not proceed in negotiations or discussions with international organizations and foreign governments. I will not treat these provisions as limiting my ability to negotiate and enter into agreements with foreign nations.”
Bush: “Sections 2(5) and 2(6) of the Act purport to require the annual report of the Secretary of the Treasury to include a description of discussions between the United States and Mexican governments. In order to avoid intrusion into the President’s negotiating authority and ability to maintain the confidentiality of diplomatic negotiations, the executive branch will not interpret this provision to require the disclosure of either the contents of diplomatic communications or specific plans for particular negotiations in the future.” Statement on Signing Legislation on Amendments to the Mexico-United States Agreement on the Border Environment Cooperation Commission and the North American Development Bank (Apr. 5, 2004). And: “The executive branch shall construe provisions of the Act that purport to direct or burden the conduct of negotiations by the executive branch with foreign governments or international organizations in a manner consistent with the President’s constitutional authority to conduct the Nation’s foreign affairs, including the authority to determine which officers shall negotiate for the United States with a foreign country, when, in consultation with whom, and toward what objectives, and to supervise the unitary executive branch.” Statement on Signing the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006 (Jan. 12, 2007).
2. Obama: “United Nations Peacekeeping Missions. Section 7050 in Division H prohibits the use of certain funds for the use of the Armed Forces in United Nations peacekeeping missions under the command or operational control of a foreign national unless my military advisers have recommended to me that such involvement is in the national interests of the United States. This provision raises constitutional concerns by constraining my choice of particular persons to perform specific command functions in military missions, by conditioning the exercise of my authority as Commander in Chief on the recommendations of subordinates within the military chain of command, and by constraining my diplomatic negotiating authority. Accordingly, I will apply this provision consistent with my constitutional authority and responsibilities.”
Bush: “Section 8050 of the Act provides that, notwithstanding any other provision of law, no funds available to the Department of Defense for fiscal year 2007 may be used to transfer defense articles or services, other than intelligence services, to another nation or an international organization for international peacekeeping, peace enforcement, or humanitarian assistance operations, until 15 days after the executive branch notifies six committees of the Congress of the planned transfer. To the extent that protection of the U.S. Armed Forces deployed for international peacekeeping, peace enforcement, or humanitarian assistance operations might require action of a kind covered by section 8050 sooner than 15 days after notification, the executive branch shall construe the section in a manner consistent with the President’s constitutional authority as Commander in Chief.” Statement by the President on H.R. 5631, the “Department of Defense Appropriations Act, 2007” (Sept. 29, 2008).
3. Obama: “Executive Authority to Control Communications with the Congress. Sections 714(1) and 714(2) in Division D prohibit the use of appropriations to pay the salary of any Federal officer or employee who interferes with or prohibits certain communications between Federal employees and Members of Congress. I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees’ communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.”
Bush: “A number of provisions of the Act, including sections 905, 932, 1004, 1212, 1224, 1227, and 1304, call for the executive branch to furnish information to the Congress on various subjects. The executive branch shall construe such provisions in a manner consistent with the President’s constitutional authority to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive’s constitutional duties.” Statement on H.R. 1815, the “National Defense Authorization Act for Fiscal Year 2006” (Jan. 6, 2006). And: “Sections 1209 and 2202 of the Act prohibit use of certain funds appropriated in the Act to initiate new start programs unless the congressional defense committees receive advance written notice. The Supreme Court of the United States has stated that the President’s authority to classify and control access to information bearing on the national security flows from the Constitution and does not depend upon a legislative grant of authority. Although the advance notice contemplated by sections 1209 and 2202 can be provided in most situations as a matter of comity, situations may arise, especially in wartime, in which the President must act promptly under his constitutional grants of executive power and authority as Commander in Chief of the Armed Forces while protecting certain extraordinarily sensitive national security information. The executive branch shall construe these sections in a manner consistent with the constitutional authority of the President.” President’s Statement on Signing of Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Hurricane Recovery, 2006 (June 15, 2006).
4. Obama: “Legislative Aggrandizements (committee-approval requirements). Numerous provisions of the legislation purport to condition the authority of officers to spend or reallocate funds on the approval of congressional committees. These are impermissible forms of legislative aggrandizement in the execution of the laws other than by enactment of statutes. Therefore, although my Administration will notify the relevant committees before taking the specified actions, and will accord the recommendations of such committees all appropriate and serious consideration, spending decisions shall not be treated as dependent on the approval of congressional committees. Likewise, one other provision gives congressional committees the power to establish guidelines for funding costs associated with implementing security improvements to buildings. Executive officials shall treat such guidelines as advisory. Yet another provision requires the Secretary of the Treasury to accede to all requests of a Board of Trustees that contains congressional representatives. The Secretary shall treat such requests as nonbinding.”
Bush: “The executive branch shall construe certain provisions of the Act that purport to require congressional committee approval for the execution of a law as calling solely for notification, as any other construction would be inconsistent with the principles enunciated by the Supreme Court of the United States in INS v. Chadha.” Statement on Signing the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriation Act (Nov. 10, 2005).
5. Obama: “Recommendations Clause Concerns. Several provisions of the Act (including sections 211 and 224(b) of title II of Division I, and section 713 in Division A), effectively purport to require me and other executive officers to submit budget requests to the Congress in particular forms. Because the Constitution gives the President the discretion to recommend only ‘such Measures as he shall judge necessary and expedient’ (Article II, section 3 of the Constitution), the specified officers and I shall treat these directions as precatory.”
Bush: “Further, sections 101 and 102 purport to require the President to submit supplemental appropriations requests. The executive branch shall construe these sections in a manner consistent with the President’s constitutional authority to recommend for congressional consideration such measures, including requests for appropriations, as he judges necessary and expedient.”). Signing Statement for H.R. 2361, the “Department of Interior, Environment, and Related Agencies Appropriations Act, 2006” (Aug. 2, 2005).
What a dramatic break!