Back when President George W. Bush was implementing his understanding of executive-branch prerogatives, many critics who should have known better (including the signatories to the ABA’s risible report on presidential signing statements) went far beyond contesting the substantive positions that Bush adopted and denied even the president’s authority to determine which provisions of law he could constitutionally enforce or decline to enforce. Today’s New York Times reports that President Obama, following through on a position taken in a signing statement in March and acting consistent with constitutional advice from the Justice Department’s Office of Legal Counsel, has chosen to “disregard a law forbidding State Department officials from attending United Nations meetings led by representatives of nations considered to be sponsors of terrorism.” (More precisely, the law forbids the use of appropriated funds for such purpose.)
On a quick review of the OLC opinion, I see no reason to doubt that President Obama is acting lawfully in this matter. Surely, though, the ABA and the signatories to its report on signing statements must be vigorously condemning what they must regard as Obama’s lawlessness, right? Indeed, shouldn’t we expect that current State Department legal adviser Harold Koh—one of the signatories—will forthwith resign his position in protest?
Oh, wait. That was Bush. This is Obama. How could I have overlooked that point of principle?