Dispelling the lies: Obama's Signing Statements.

[johnaries]

There have been some here who are claiming that Obama is "the same as Bush" and has broken his promises regarding signing statements.

Here is a list of Obama's signing statements and the text of each:

http://www.coherentbabble.com/listBHOall.htm

Please read the text carefully. You will see that most of his sigining statements praise the bills. There are specific sections in some bills that Obama points out that could raise Constitutional concerns, and that Obama says he excute the provisions of the bill in a way that will not contradict the Constitution.

NOWHERE does he invoke the "Theory of Unitary Executive". He relies solely upon the Constitution itself.

There is also an excellent post on dKOS regarding this that I just found which explains it quite well:
http://www.dailykos.com/storyonly/2009/7/20/751956/-President-Obama-Has-NOT-Broken-His-Promise-re-Signing-Statements

[bvar22]

1. Please include a link to....

"There have been some here who are claiming that Obama is "the same as Bush" ...

[johnaries]

2. You haven't seen them?

OK, here's one that although doesn't make the claim outright certainly makes the implication under the guise of "broken promises"

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=6109218&mesg_id=6109218

His main premise is that Obama has promised to reverse Bush policies and has not. Therefore making the impliation that Obama is the same even if he doesn't say it outright.

Now, I will say that I am NOT an Obama-bot, and there have been some things that have occured in his administration that I am not pleased with. However, I am still pleased with his administration and the wonderful accomplishments they have managed and the potential of the things I think they will accomplish.

I would like to be able to discuss rationally the things that I do not like, but with so many recent baseless or mis-stated attacks on the administration I feel constrained because I know the discussion will devolve into Obama-bashing.

Since DU seems divided into either pro-Obama or anti-Obama, I choose to be pro-Obama.

[bvar22]

10. You are making many assumptions that don't hold up.

I read that post.
Nowhere does that poster SAY, or even IMPLY that "Obama is the same as Bush."
That poster listed and documented many details that support his thesis.

Do you question his documentation, or his conclusion.
Please be specific.

[johnaries]

15. I'll refer you to these 2 paragraphs

Bush did not just ignore long-standing laws and treaties and rewrite new ones with signing statements. He also invented law out of whole cloth, publicly and privately, through executive orders, alteration of existing executive orders, memos drafted by the Office of Legal Counsel, and the creation of secret programs. Candidate Obama promised to thoroughly review Bush's executive orders immediately upon taking office. Obama promised to swiftly undo all of Bush's executive orders that "trampled on liberty." Obama has had six months and has failed to produce any review of Bush's hundreds of executive orders and signing statements. Obama has overturned a handful of Bush's executive orders, not on the grounds that a president cannot make law, but on the grounds that the new president disagrees with those particular orders. Obama has instructed government employees to ask his new Justice Department before complying with Bush's signing statements, but not rejected those statements publicly on the grounds that a president cannot rewrite laws. And, just as he has written his own law-altering signing statements, Obama has routinely written his own law-making executive orders. He's even floated the idea of using an executive order to create a formal program of preventive detention (thus eliminating both the legislative branch and habeas corpus in one stroke).

Candidate Obama's website defined Bush's use of "state secrets" claims as a problem that Obama's election would solve. Asked about claims of "executive privilege" to keep secret activities of government employees that did not involve the president, candidate Obama told the Boston Globe "My view is that executive privilege generally depends on the involvement of the President and the White House." President Obama has used "state secrets" claims more broadly than did President Bush, and used them repeatedly to keep secret the rendition, torture, and warrantless spying programs created by Bush, including by re-asserting the same "state secret" claims made by Bush. Obama's White House has used "executive privilege" claims to block full compliance with a congressional subpoena by Karl Rove despite Rove's claim that the President was not involved in the crimes and abuses under investigation.

[Buzz Clik]

4. Many, many, many times per day. Here's one from 5 minutes ago:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x6110567

[johnaries]

5. Excellent example. Thanks!

[bvar22]

11. Well, you found one.

I disagree with that poster.

[tavalon]

6. You haven't seen them?

My goodness, I've seen them almost as much as snarky "this is change I can believe in! Not" comments.

[spanone]

8. wake up alert!!!!!!

[HiFructosePronSyrup]

18. here

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=6109218&mesg_id=6109218

[Buzz Clik]

3. Those here who despise Obama really don't care.

Some here have hated Obama for over 18 months. Some just for 10 months. They don't care about the truth; they have no desire to weed out the facts. Who do they remind me of .... Oh, yes.

[johnaries]

7. Here is the Summary at the bottom of the dkos post.

Summary: President Obama "Gets It"

President Obama, a Consitutional scholar, understands the proper use of signing statements. He has used them consistent with the way they were used by James Monroe, Andrew Jackson, U.S. Grant and Theodore Roosevelt: to point out when there is a Constitutional issue, to delineate the fine line created by our division of powers.

President Obama has NOT used signing statements as President Bush did, to essentially veto parts of bills he did not like.

The ABA Blue Ribbon Task Force Report, to which a link is provided above, recommends three guidelines for Presidential use of signing statements:

1. They should respect the rule of law and our Constitutional system of separation of powers;
2. Presidential concerns regarding Constitutionality should be communicated to Congress during the legislative process; and
3. Signing statements should not be a substitute for a Presidential veto.

Any honest reading of President Obama's signing statements indicates that he is following the ABA Blue Ribbon Task Force's recommendations closely, even to the point of tracking it's language. President Obama is using signing statements properly, in accordance with American history and jurisprudence and with his own pre-election pledge. We should be writing thank you diaries to President Obama, in grateful acknowledgment of his return to the rule of law in his use of signing statements.

There has been much discussion on this site of whether we can count on President Obama. We should be asking whether he can count on us. Ill informed attacks accusing the President of broken promises because "signing statement" sounds bad to us after the last four years are not what the President should be expecting from us.

I suggest you read the entire diary post. He has an excellent summary fo the individual signing statements.

[berni_mccoy]

9. Some here have truly jumped the shark for the sake of remaining critical

Of any administration.

[johnaries]

20. I think you hit the nail on the head:

"for the sake of remaining critical of any administration".

I'm not saying that Obama doesn't deserve ANY criticism. But too much of the criticism I have seen here is certainly undeserved. His signing statements are an excellent example of undeserved criticism and a reflection of how far some will go to simply criticize.

[ChimpersMcSmirkers]

12. kicking

[mvd]

13. Good points - he hasn't been like Bush at all, but..

there's also a counter argument that in case of the last one (June 24), he should have made the complaint before passage or not signed the bill.

Some of the signing statements only complement the bills and nothing more.

[johnaries]

16. In the case of the June 24th signing

his statement says:

However, provisions of this bill within sections 1110 to 1112 of title XI, and sections 1403
and 1404 of title XIV, would interfere with my constitutional authority to conduct foreign
relations by directing the Executive to take certain positions in negotiations or discussions with
international organizations and foreign governments, or by requiring consultation with the
Congress prior to such negotiations or discussions. I will not treat these provisions as limiting
my ability to engage in foreign diplomacy or negotiations.

Article 2, Section 2, Clause 2 fo the Constitution says "He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;".

"Advice" is very different from "dictating terms" which it sounds to me like Cognress was trying to do. Besides, any agreement he makes has to pass Congress, anyway. In many negotiations the President simply doesn't have the time or ability to "check with Congress" on every single issue. He has to have a certain amount of freedom during the negotiation process, and Obama was simply making this point. The Congress still has the Constitutional authority to reject it later, despite any signing statements.

[mvd]

36. He still should not have signed it

His duty is still to execute the law as written. And a President can be diligent enough on important bills to see the details. I have to agree with the counter-argument on this one.

[tritsofme]

14. Lots of people here are just stuck on stupid.

Obama the same as Bush? Are these people deranged?

These people love to shout and make a scene, but I doubt many will acknowledge a thread like this, which shows their criticism as completely lacking any substance.

[HiFructosePronSyrup]

17. You might as well be arguing with birthers, twoofers, or holocaust deniers.

They're often the same people.

[alcibiades_mystery]

19. Any so-called journalist who calls Obama the "Emperor" is an asshole and a fraud

It's as simple as that.

[Jennicut]

21. Very interesting info. I always wondered if other Presidents used signing statements.

[johnaries]

22. Oh, yes. They go back to Monroe. But

they were mostly "ornamental" until Reagan. There is some very good information in Wikipedia:

http://en.wikipedia.org/wiki/Signing_statement_(United_States)

Some highlights:

Until Ronald Reagan became President, only 75 statements had been issued; Reagan and his successors George H. W. Bush and Bill Clinton produced 247 signing statements among the three of them.<9> By the end of 2004, George W. Bush had issued 108 signing statements containing 505 constitutional challenges.<9> As of January 30, 2008, he had signed 157 signing statements challenging over 1,100 provisions of federal law.<10>

The upswing in the use of signing statements during the Reagan administration coincides with the writing by Samuel A. Alito — then a staff attorney in the Justice Department's Office of Legal Counsel — of a 1986 memorandum making the case for "interpretive signing statements" as a tool to "increase the power of the Executive to shape the law."

[Jennicut]

23. Thanks for this.

It seems like it really took off in the 80's and 90's. I don't have any problems objecting to any legislation constitutionally but Bush obviously abused it.

[johnaries]

24. EXACTLY!

An excellent treatise on the proper use of signing statements was the one in 1993 by Dellinger in Clinton's DOJ. It's lengthy, but very informative. Especially the appendix.

http://www.usdoj.gov/olc/signing.htm

[voc]

25. kick

They are not the same.

[berni_mccoy]

26. Kick!

[HamdenRice]

27. I posted about this a few weeks ago. Presidents properly use them to create "legislative history"

In other words, in case of a future lawsuit, the president's opinion of what the law means might be used in a judge's opinion.

Bush used them to say he was disobeying the law.

They are completely different. Some people don't seem able to understand the difference.

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x5962706

[Ms. Toad]

28. Signing statements are not legislative history.

Legislative history is created by the Senate and House. On the rare occasion when courts do point to signing statements (whether you agree with the president's interpretation of the law or not), that is an expansion of executive power.

Here is where the idea that signing statements could serve as quasi-legislative history came from:

>>Presidents have been issuing signing statements regularly since the mid-1980s, but their legal weight has remained unclear because courts have seldom discussed them. Against that sparse history, Phillip Cooper, a government professor at Portland State University, said Scalia's citation to Bush's statement in a Supreme Court opinion stood out.

``It's extremely rare to see any reference in any court to a signing statement," Cooper said.

<snip>

In a 1986 memo that surfaced last year amid his confirmation fight, Alito -- then an official in the Reagan administration -- wrote that presidents should use signing statements to record their own interpretations about the meaning of new statutes. If a question arose about a law's meaning, Alito wrote, judges could look to the statement for guidance, rather than relying solely on its legislative history.

<< http://www.boston.com/news/nation/washington/articles/2006/07/15/scalias_dissent_gives_signing_statements_more_heft/

The position that signing statements are legislative history is legally incorrect - and the use of them to interpret the law as quasi-legislative history did not originate from a source I want to emulate.

When a law is unclear on its face, courts properly look to the discussions of those drafting the law to understand what it was the legislature intended to record. The president was not part of those discussions (unless he happened to testify as part of the hearings on the bill - and then his words on the record - not the signing statement - would be part of the legislative history). The role of the executive branch is to enforce the law and a major premise of why our legal system works is that it is an equal battle between skilled advocates for opposing sides. In a federal criminal matter (which could well arise under a law with a signing statement) the attorney general and the defense each presents its interpretation of the law, and how the law applies to the facts in a particular case. If the attorney general (part of the executive branch) not only gets to be one of the advocates for a particular side (i.e. to argue his interpretation of the law, and how the law applies to the facts in that particular case) - but the court also then also relies on the executive branch's explanation of what the law means (through a signing statement) to settle a dispute between the attorney general and the defense as to the what the legislative branch meant when it wrote the law, the battle is no longer equal.

That is not to say that signing statements praising the law are wrong - just that they are not properly used by a court to interpret the law because they are not the history surrounding the creation of the law, they are the executive branch's interpretation of the law.

[HamdenRice]

30. Quasi legislative history or legislative history is a small point

I've read dozens of opinions in which a court refers to what the legislature generated and then mentions what the president said or wrote at signing. If you want to be overly semantic you could argue it's not legislative history because it's not generated in the legislature. But it's still part of the history of the legislation, and in judicial opinions, it is usually included in the section on legislative history.

Also, while theoretically, Congress enacts laws and the president executes them, the executive has always had a major role in undertaking legislative initiatives and submitting them to Congress. This is not a "unitary executive" theory, but is part of the political history of the US since the Washington administration. On major legislative initiatives that start in the executive branch -- like the Civil Rights Act of 1964 -- what the executive branch was trying to accomplish when they submitted the bill to Congress is important to the bill's later interpretation.

Regulatory bills also generally arise in the executive branch -- usually in the departments that will enforce them. A lot of environmental legislation is developed in the EPA, crime bills are often largely drafted by the Justice Department, and securities amendments are generally developed within the SEC, and so on.

Again, this is not a unitary executive argument, which is different. It has to do with the fact that the president in our system is both head of state and head of government.

[Ms. Toad]

32. Citations, please, to Court decisions

using signing statements as legislative history for the purpose of interpreting the law (or suggesting that is an appropriate source of legislative history). I don't think you will find many. Often court decisions include a general historical summation, either factual or legal - but your initial post suggested it be used to interpret the law.

In the law words have specific meaning - in other words, semantics do matter in the interpretation of laws. Legislative history, within the meaning of the law, does not include signing statements by the president. Even Alito, who is a strong supporter of using signing statements to influence the interpretation of the law, acknowledged that.

The legal meaning of particular words also impacts your comparison to regulations. Regulations are not bills. Using how a regulation is treated to explain how a law should be treated is like explaining an pear by describing an orange. They are both fruits, but beyond that they do not have a lot in common.

Regulations are rules by which legislation is implemented. The rules have the force of law only to the extent they are within the boundaries set by Congress in the authorizing legislation. Regulations are generally drafted by the executive agency which enforces them, but their regulatory reach is strictly limited to what is authorized by the legislation. Regulations are routinely found to be unenforceable because the executive agency which drafted them attempted (deliberately or perhaps innocently) to usurp legislative power by going beyond the limits set in the legislation. When that happens, the regulation unenforceable.

As for the president playing a role in legislation, lobbyists also have a major role in undertaking legislative initiatives and submitting draft bills to Congress. They probably author far more initial drafts of bills than the president. Should their post enactment statements also be legislative history?

The use of signing statements to inform the interpretation of laws is an improper expansion of executive power promoted by the likes of Justices Alito and Scalia expressly for the purpose of accomplishing that expansion. The use of signing statements to interpret the law was extremely rare, if it occurred at all, before that. For that reason, the use of signing statements to interpret the law is not appropriate even when I happen to agree with the interpretation being promoted because the principle is important. Congress makes the laws; the executive branch enforces them but is permitted no more influence on the interpretation of those laws than those charged with violating them.

Again - I am not quarreling with Obama making signing statements. The difference between Obama's and Bush's signing statements, however, is not a dichotomy, as you suggested, but a continuum. Just because Obama offers his interpretation with a scalpel, as opposed to the Bush chainsaw does not make it any more appropriate to use when determining the meaning of the law when it lands in court.

[HamdenRice]

35. Regulatory bills are not regulations

For example, the Securities Act is a regulatory act. The Clean Water Act is a regulatory act. I'm not talking about regulations, so that entire part of your analysis is irrelevant. I'm surprised you don't know the difference between regulatory law and regulations. You might want to look at a hornbook on "administrative and regulatory law." Being highly specialized, most regulatory law is written within administrative agencies or in close consultation with them, and sponsored by a legislator.

As for citations -- oh please. I'm going to do a lexis search to satisfy an anonymous internet poster? I've read many cases in which the legislative history section includes mention of the signing statement. You don't think those cases exist. I suppose we'll have to leave it at that.

As for Alito -- that's simply an ad hom argument. Alito said it, so it must be wrong and evil. What was objected to under Bush wasn't trying to add to legislative history but that he was flatly saying he would not enforce provisions of a law that had been passed by Congress and that he signed into law.

Obama is simply expressing an opinion in a signing statement as he signs a bill into law, something presidents have been doing since Madison. It is not on a continuum with what Bush was doing and is not an expansion of presidential power.

[Ms. Toad]

37. Both of your cited regulatory acts are legislation

The legislative acts, enacted by congress, authorize the appropriate executive agencies to draft implementing regulations which generally have the force of law, so long as they are within the limits imposed by Congress. The same structure I outlined in my previous post.

Here's a link to the Clean Water Act, which authorizes the EPA (among others) to administer the legislation. http://epw.senate.gov/water.pdf

>> (d) Except as otherwise expressly provided in this Act, the Administrator of the Environmental Protection Agency (hereinafter in this Act called ‘‘Administrator’’) shall administer this Act.

(e) Public participation in the development, revision, and enforcement of any regulation, standard, effluent limitation, plan, or program established by the Administrator or any State under this Act shall be provided for, encouraged, and assisted by the Administrator and the States. The Administrator, in cooperation with the States, shall develop and publish regulations specifying minimum guidelines for public participation in such processes.<<

I made an assertion signing statements are not legislative history and the use of them to interpret the law was virtually non-existent, and provided a supporting link. You made a contrary assertion - that it happens all the time - and haven't provided a link. Suit yourself, but given that I supported my assertion I think it is appropriate to ask the same of you.

My opposition to the use of signing statements to interpret the law has nothing to do with Alito. It is just bad policy because it blurs the line between the three branches of government and expands executive authority. Even a casual reading of the example I gave in the first post should have made that clear. That Alito promoted recent (1) attempts to use signing statements to influence interpretation of the law and (2) once he was named to the Supreme Court participated in a dissent which citated one a something which should have been used to interpret the law is just more supporting evidence that it is a bad idea.

Obama is expressing his opinion as to what the law means more subtly, and less clumsily than Bush - and perhaps not even with the intent of influencing the law, but to the extent a signing statement is used by the courts to give meaning to the law is is an expansion of executive power (whether that was intended by the author or not).

Again - I have no problem with Obama making signing statements. My problem is with the suggestion that those statements should be used by the court to interpret the applicable law.

[HamdenRice]

39. Regulatory acts are legislation

Of course. That was my point. That a "regulatory bill" could be drafted by the executive.

One issue at a time. You acknowledge that there is such a thing as regulatory legislation that does not consist of "regulations" - ie administrative rule making?

Do you agree that regulatory bills (which become regulatory acts) are often drafted by executive departments -- or not?

[Ms. Toad]

40. An act is legislation - pure and simple.

There is no special category of legislation that is "regulatory" legislation - any more than there are special categories for, say, criminal legislation or civil legislation. What you are calling regulatory legislation is merely an Act of Congress that authorizes implementation of the Act by a regulatory agency through (in part) promulgation of implementing regulations rather than directly through the Act itself.

Just like any other Act of Congress, the source of the language that is enacted varies tremendously. Senators, Representatives, Lobbyists, Congressional staff, administrative agencies, citizens, or even the President can provide draft legislation to a senator or representative with the hope that it will be introduced as a bill. It should come as no surprise that initial drafts are often offered by an interested party - which might or might not include an administrative agency.

That does not give the words of author of the initial draft any special weight, however, as to the interpretation of what is ultimately adopted. What is relevant to the court when language is ambiguous is the record of the Congressional discussions when Congress wrestled with exactly what language to use to capture the intent of Congress (which may or may not be the same as the intent of the original author of the draft).

There is a vast difference between an executive agency (or anyone else) providing an initial draft of legislation which Congress may ultimately choose to adopt, reject, or modify after a full Congressional debate, and the suggestion that the court should give special weight to the opinion of the executive branch (via the signing statement) as to legislative intent.

[johnaries]

33. Actually, as to the "legislative history" aspect

from 1993:

Many Presidents have used signing statements to make substantive legal, constitutional or administrative pronouncements on the bill being signed. Although the recent practice of issuing signing statements to create "legislative history" remains controversial, the other uses of Presidential signing statements generally serve legitimate and defensible purposes.

http://www.usdoj.gov/olc/signing.htm

[solstice]

29. Funny how he's all for unconstitutional warrantless surveillance. I think Obama is very flexible

when it comes to the Constitution.

[johnaries]

31. Ok, now that is one area where I think Obama SHOULD be criticised.

However, that doesn't mean that we should dismiss all the great things that he has accomplished.

I wish that we could discuss this issue openly and intelligently. But with the current divisions and so many anti-Obama sentiments I'm afraid any attempts at such a discussion would degrade to unwarranted Obama-bashing such as the type I am trying to combat here.

I support Obama and I am glad he is my President and I support him. However, I am not an Obama-bot. I don't fall into lock-step behind him.

But the level of unwarranted Obama-bashing and misinformation here has gotten to the point where I and others like me must spend most of our time defending Obama against almost Rovian attacks and cannot talk about the real issues in an intelligent discussion.

[TexasObserver]

34. Recommend

[johnaries]

38. Thanks!

[Robb]

41. Kicking this (ultimately) informative thread. nt

:kick: