home

The Problem With President Obama's Signing Statement

Since Democrats and others (including me) spent a great deal of time criticizing President Bush for issuing a recordbreaking number of signing statements, it seems necessary to consider President Obama's signing statement issued in relation to the recently enacted Omnibus Spending Bill. TPM has the relevant passage:

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. . . . 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.

I think the signing statement is defensible in one aspect and indefensible in another. It appears to be asserting that the provisions in question are a form of legislative veto which the Supreme Court deemed unconstitutional in the case INS v. Chadha. In one aspect, this claim seems well established and moored to clear Supreme Court precedent. In another, I think it is unmoored and indefensible. I'll explain why I think so on the flip.

In Chadha, the Supreme Court held that:

The congressional veto provision in 244(c)(2) [of the Immigration statute] is unconstitutional.

(a) The prescription for legislative action in Art. I, 1 -- requiring all legislative powers to be vested in a Congress consisting of a Senate and a House of Representatives -- and 7 -- requiring every bill passed by the House and Senate, before becoming law, to be presented to the President, and, if he disapproves, to be repassed by two-thirds of the Senate and House -- represents the Framers' decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered procedure. This procedure is an integral part of the constitutional design for the separation of powers.

(b) Here, the action taken by the House pursuant to 244(c)(2) was essentially legislative in purpose and effect, and thus was subject to the procedural requirements of Art. I, 7, for legislative action: passage by a majority of both Houses and presentation to the President. The one-House veto operated to overrule the Attorney General and mandate Chadha's deportation. The veto's legislative character is confirmed by the character of the congressional action it supplants; i.e., absent the veto provision of 244(c)(2), neither the House nor the Senate, or both acting together, could effectively require the Attorney General to deport an alien once the Attorney General, in the exercise of legislatively delegated authority, had determined that the alien should remain in the United States. Without the veto provision, this could have been achieved only by legislation requiring deportation. A veto by one House under 244(c)(2) cannot be justified as an attempt at amending the standards set out in 244(a)(1), or as a repeal of 244 as applied to Chadha. The nature of the decision implemented by the one-House veto further manifests its legislative character. Congress must abide by its delegation of authority to the Attorney General until that delegation is legislatively altered or revoked. Finally, the veto's legislative character is confirmed by the fact that, when the Framers intended to authorize either House of Congress to act alone and outside of its prescribed bicameral legislative role, they narrowly and precisely defined the procedure for such action in the Constitution.

When President Obama wrote that "[n]umerous provisions of the legislation purport to condition the authority of officers to spend or reallocate funds on the approval of congressional committees [and thus] are impermissible forms of legislative aggrandizement in the execution of the laws other than by enactment of statutes," he seems to be on firm ground under Chadha. (Of course, knowing the specific provisions President Obama is referring would be helpful. I have not found any reference to the specific provisions. In addition, a form of opinion letter from the Office of Legal Counsel supporting the President's assertions would also be important here. Dare I say some transparency would be nice here.)

On the issue of the "provision [that] requires the Secretary of the Treasury to accede to all requests of a Board of Trustees that contains congressional representatives[,]" I am not convinced that this is a acceptable usage of the signing statement. Perhaps there is another Supreme Court precedent on point. I assume the theory the President is asserting here treats the "Board of Trustees" mentioned therein as a mere doppleganger for the Congress as a whole and thus the provision violates the presentment clause.

Perhaps President Obama is relying on the Supreme Court decision in Bowsher v. Synar. In Bowsher, the Court held that:

The structure of the Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess. Our decision in INS v. Chadha, 462 U. S. 919 (1983), supports this conclusion. In Chadha, we struck down a one-House "legislative veto" provision by which each House of Congress retained the power to reverse a decision Congress had expressly authorized the Attorney General to make . . To permit an officer controlled by Congress to execute the laws would be, in essence, to permit a congressional veto. Congress could simply remove, or threaten to remove, an officer for executing the laws in any fashion found to be unsatisfactory to Congress. This kind of congressional control over the execution of the laws, Chadha makes clear, is constitutionally impermissible.

I presume that President Obama's theory here is that the Board of Trustees is akin to the Comptroller General in that it is under the control of the Congress. While the theory is persuasive, I think this part of the signing statement is very troubling. The idea, at least to me, is that the problem with signing statements was the President's bypassing of the constitutionally structured method of making laws AND reviewing their legality and constitutionality. Without a clearcut Supreme Court precedent on point, it seems to me the President is the one usurping here.

Consider the Supreme Court decision declaring the Line Item Veto Act of 1996 unconstitutional in Clinton v. New York:

The Act's cancellation procedures violate the Presentment Clause.

(a) The Act empowers the President to cancel an "item of new direct spending" such as 4722(c) of the Balanced Budget Act and a "limited tax benefit" such as 968 of the Taxpayer Relief Act, 691(a), specifying that such cancellation prevents a provision "from having legal force or effect," 691e(4)(B)-(C). Thus, in both legal and practical effect, the Presidential actions at issue have amended two Acts of Congress by repealing a portion of each. Statutory repeals must conform with Art. I, INS v. Chadha, 462 U. S. 919, 954, but there is no constitutional authorization for the President to amend or repeal. Under the Presentment Clause, after a bill has passed both Houses, but "before it become[s] a Law," it must be presented to the President, who "shall sign it" if he approves it, but "return it," i. e., "veto" it, if he does not. There are important differences between such a "return" and cancellation under the Act: The constitutional return is of the entire bill and takes place before it becomes law, whereas the statutory cancellation occurs after the bill becomes law and affects it only in part. There are powerful reasons for construing the constitutional silence on the profoundly important subject of Presidential repeals as equivalent to an express prohibition. The Article I procedures governing statutory enactment were the product of the great debates and compromises that produced the Constitution itself. Familiar historical materials provide abundant support for the conclusion that the power to enact statutes may only "be exercised in accord with a single, finely wrought and exhaustively considered, procedure." Chadha, 462 U. S., at 951. What has emerged in the present cases, however, are not the product of the "finely wrought" procedure that the Framers designed, but truncated versions of two bills that passed both Houses.

President Obama's signing statement and declared intention to not follow certain provisions of the Omnibus Spending bill are a de facto line item veto. I would argue that the very fact that instead of relying on clear Supreme Court precedent, as the President does in the first part of his signing statement, and instead of being a declaration of what the law may mean in a hypothetical scenario, as many generalized assertions in signing statements are, the specificity of and the stated and express declaration to NOT abide by the law make this signing statement, in this procedural aspect, as bad or worse than President Bush's signing statements.

When signing statements are merely blather with no practical or promised effect, then I doubt there is a real constitutional question. But when a signing statement, as here, instructs a Cabinet officer, in this case, the Treasury Secretary, to disobey a law, then we have a problem.

If Treasury Secretary Geithner does in fact disobey the law at some point, I believe we will have a case or controversy for judicial determination.

Again, the view of the Office of Legal Counsel on this matter would be extremely helpful and in keeping with the promise of transparency promised by the Obama Administration.

Speaking for me only

< Madoff and Bail Pending Sentencing | Crackpots At The WaPo >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft


  • Display: Sort:
    What is (5.00 / 0) (#2)
    by Maryb2004 on Thu Mar 12, 2009 at 09:39:49 AM EST
    this Board of Trustees?

    Your differentiation between the two parts of the signing statement makes sense to me.

    I've never really understood the point of signing statements anyway - at least from the point of view of the executive. It seems that they could achieve the same result within the executive (ignoring parts of laws they think are unconstitutional) without a formal signing statement and through other means.  A signing statement would just give the rest of the world notice of their intent.  Of course in my world the Congress would do something about an executive that ignored the law.  Silly me.

    I think that is the point (5.00 / 2) (#4)
    by Big Tent Democrat on Thu Mar 12, 2009 at 09:51:11 AM EST
    That the President does the transparent action. In that sense, I never understood the criticisms of Bush for stating his views clearly.

    My criticisms here are of Obama's directive to Geithner. I do not see the settled basis for it.

    And it is an act of lawlessness in my view. Of course not lawlessness on the scale of what Bush did, but lawlessness just the same.


    Parent

    I have no time this morning (5.00 / 3) (#3)
    by Militarytracy on Thu Mar 12, 2009 at 09:46:06 AM EST
    to reach legal understanding of this.  I despised Bush's signing statements though so you can be certain that after this weekend has come and gone I will return to fully investigate and understand exactly what it is you are saying :)  I will also greatly appreciate any and all comments that aid the laywomen reading this blog.

    Appreciate the legal opinion (5.00 / 1) (#6)
    by joanneleon on Thu Mar 12, 2009 at 10:24:38 AM EST
    and the thoughtful explanations.  I really hope this doesn't go to the Supreme Court, but only for selfish reasons and because there are so many other critical issues to deal with.  In normal times, I might wish that it was challenged just to stop executives from doing things like this.  What makes them think that they can just issue a signing statement telling someone in the executive branch to just ignore parts of the laws that Congress passed?  Haven't we been arguing against that very thing for the last eight years?  I find it embarrassing that the president we elected is doing this (and that's the selfish part).

    Here's my bottom line on it:  Why the hell did he sign it?  We've got control of both houses of Congress.  Why did the White House not just tell Congress that they would not sign this bill until A, B and C are changed?  

    This budget has been sitting around for months.  Since the president did not see fit to provide the details of what he objects to, I can't tell if it was something that was added at the last minute.  But even so, they still could have reviewed any changes and notified Congress before the House voted.

    Lastly, the fact that a signing statement was used already, and essentially to save face, doesn't bode well, IMHO.  Is this president going to leave all the Bush/Cheney vehicles of abuse in place, just in case they need them sometime, and rationalize that, unlike Bush/Cheney, they are so noble that they will use them wisely?  I hate to say it, but it's looking like this is the case, more and more.

    There's also FISA (5.00 / 1) (#26)
    by Cream City on Thu Mar 12, 2009 at 01:40:15 PM EST
    and that promise, when Obama flipflopped on it, that it would be one of the first things reversed if he went to the White House.

    Tick, tick, tick. . . .

    There was something about that grin on his face, when he voted, that unnerved watchers.

    Tick, tick, tick. . . .

    Parent

    I spoke w Feingold on FISA (5.00 / 1) (#28)
    by Ben Masel on Thu Mar 12, 2009 at 02:02:30 PM EST
    2 weekends back.

    He's giving the Administration "a few weeks' come up with legislation rolling back last summer's FISA amendments before introducing his own.

    Parent

    Excellent; thanks, Ben (5.00 / 1) (#29)
    by Cream City on Thu Mar 12, 2009 at 02:13:05 PM EST
    for the info.  I'll also be watching our Senator, who already is standing up to the White House on other matters.  Good on Russ.

    Parent
    That's good news, Ben (none / 0) (#38)
    by joanneleon on Thu Mar 12, 2009 at 07:14:38 PM EST
    I don't think there is anything to be done about the telecom immunity though, right?

    Also, do you know if Feingold plans to do anything about the Patriot Act?

    I've heard various things about when statutes of limitation run out but have never seen a good list of people/crimes/dates.  I wonder if anyone compiled a list like that.

    Parent

    Statute of Limitation (5.00 / 1) (#39)
    by Ben Masel on Fri Mar 13, 2009 at 11:25:04 AM EST
    5th Anniversary of the Ashcroft/Comey hospital caper was earlier this week. The certification that expired was likely for the gobbling of all call records.

    I didn't get to ask Russ about PATRIOT, I'm guessing he's also hoping someone else will take initiative first. My gut sense is we'd get a better bill from the House, giving Russ a better bargaining position on the details once it reaches the Senate. House Judiciary Committee has a better mix among its Dems than the Senate counterpart.

    Parent

    Another signing statement? (none / 0) (#15)
    by joanneleon on Thu Mar 12, 2009 at 11:48:34 AM EST
    I've not heard anything about this.  He really said no to whistleblower protections?  Any links to good articles?  

    Parent
    Thanks (none / 0) (#20)
    by joanneleon on Thu Mar 12, 2009 at 12:11:59 PM EST
    for saving me the time of digging for it.  And... argghhhh.

    Parent
    For the record (none / 0) (#23)
    by Big Tent Democrat on Thu Mar 12, 2009 at 12:52:37 PM EST
    I do not agree with the interpretation raised in the dkos diary.

    I do think this would have been a situation where President Obama need not have discussed the subject, for his assertions are rather off point and raise suspicions where none should have been warranted.

    It was a mistake to comment on that provision, but the statement itself strikes me as rather unremarkable.

    Parent

    Of course the Executive Branch (none / 0) (#32)
    by Big Tent Democrat on Thu Mar 12, 2009 at 02:29:09 PM EST
    wants to do that.

    That is not about whistleblower protection imo.
     

    Parent

    Actually I am not (none / 0) (#36)
    by Big Tent Democrat on Thu Mar 12, 2009 at 05:28:12 PM EST
    I am saying that the President's assertions in the signing statement are not relevant to whistleblower protection.

    Not what you wrote I said.

    Parent

    Advocay of whistleblower protection under TARP I (none / 0) (#21)
    by lambert on Thu Mar 12, 2009 at 12:17:50 PM EST
    quoting WAPO, 9/24/2008:

    Yesterday, 40 organizations sent a letter to the Senate Banking, Housing and Urban Affairs Committee and the House Financial Services Committee urging members to include whistle-blower protection in the bailout legislation.

    "At a minimum, any credible solution must address one of the current crisis' fundamental causes -- corruption and other abuses of power sustained by secrecy," the letter said. "Otherwise, the taxpayers could end up giving $700 billion more to repeat the same disasters. Congress must prove it has learned this lesson. Any genuine solution must be grounded in transparency, with all relevant records publicly available and best practice whistleblower protection for all employees connected with the new law."

    The letter was signed by a variety of organizations from across the political spectrum. They include the American Library Association, the Union of Concerned Scientists, the Liberty Coalition, the Society of Professional Journalists, the Government Accountability Project and the Project on Government Oversight.


    Just saying this is not a new issue, and to see the Obama adminsitration not only stiff transparency advocates, but to do it with a signing statement that is not, in itself, transparent, is particularly.... Well, let me be generous and say disheartening.

    Parent
    Meanwhile, the new SEC chair (none / 0) (#33)
    by joanneleon on Thu Mar 12, 2009 at 02:34:02 PM EST
    is sending the opposite message, no?  Very strange, and not reassuring.


    [SEC Chair] Schapiro noted the loss of confidence in the markets, although she said that the SEC has taken steps towards the goal of restoring confidence.

    "Among other things, the Enforcement Division has been uncuffed; there is a new initiative to improve the processing of whistleblower tips;
    RTT News



    Schapiro also said she may ask Congress to expand
    whistleblower laws to encourage the public to come forward with
    tips and complaints. Currently, the SEC cannot pay
    whistleblowers for tips but does have the authority to award a
    bounty to someone who provides information leading to the
    recovery of a civil penalty from an insider trader.
    Reuters


    Parent
    Meanwhile, the new SEC chair (none / 0) (#34)
    by joanneleon on Thu Mar 12, 2009 at 02:37:38 PM EST
    is sending the opposite message, no?  Very strange, and not reassuring.


    [SEC Chair] Schapiro noted the loss of confidence in the markets, although she said that the SEC has taken steps towards the goal of restoring confidence.

    "Among other things, the Enforcement Division has been uncuffed; there is a new initiative to improve the processing of whistleblower tips;
    RTT News



     Schapiro also said she may ask Congress to expand
    whistleblower laws to encourage the public to come forward with
    tips and complaints. Currently, the SEC cannot pay
    whistleblowers for tips but does have the authority to award a
    bounty to someone who provides information leading to the
    recovery of a civil penalty from an insider trader.
    Reuters/idUSN1128282720090311



    Parent
    I agree (none / 0) (#1)
    by jbindc on Thu Mar 12, 2009 at 08:37:55 AM EST
    Is this "Board of Trustees" a new group outlined in the Omnibus Bill? Or is that the whole purpose of your question?

    Very interesting. (none / 0) (#5)
    by oculus on Thu Mar 12, 2009 at 10:20:44 AM EST


    Signing statement: (none / 0) (#7)
    by oculus on Thu Mar 12, 2009 at 10:42:43 AM EST
    NYT

    Now--off to look up "precatory."

    That's a PDf (none / 0) (#9)
    by Big Tent Democrat on Thu Mar 12, 2009 at 10:54:26 AM EST
    I added an htm link in my post.

    The essence of my critique stands after seeing the entire statement.

    The rest of his reservations seem boilerplate and fine to me. They involve his views on how to interpret the law and I can even applaud the language and the fact that the President made public his positions on those provisions.

    My concern remains on the Geithner directive.

    Parent

    Is this the provision Obama refers to? (none / 0) (#10)
    by lobary on Thu Mar 12, 2009 at 11:08:36 AM EST
    From the text of the bill:

    ``§ 3173. Working capital fund for General Services Administration''.
    HARRY S TRUMAN SCHOLARSHIP FOUNDATION SALARIES AND EXPENSES

    For payment to the Harry S Truman Scholarship Foundation Trust Fund, established by section 10 of Public Law 93-642, $500,000, to remain available until expended: Provided, That hereafter, all requests of the Board of Trustees to the Secretary of the Treasury provided for in this section shall be binding on the Secretary, including requests for the issuance at par of special obligations exclusively to the fund as provided for in section 10(b), which the Secretary shall implement without regard to the determination related to the public interest required by the last sentence of that section.

    According to the foundation's website, the Board of Trustees includes Rep. Todd Akin (R-MO), Sen. Max Baucus (D-MT), and Sen. Kit Bond (R-MO).

    Omnibus bill (none / 0) (#11)
    by lobary on Thu Mar 12, 2009 at 11:12:15 AM EST
    The PDF is here for those who want to search the bill.

    Parent
    I don't know (none / 0) (#14)
    by Big Tent Democrat on Thu Mar 12, 2009 at 11:42:57 AM EST
    But that certainly fits the description. It seems to me hard to argue that the "Board" is the Congress in this instance, but at the least, there is no clear cut SCOTUS precedent that I think excuses Obama's disregard here.

    Parent
    My question would be (none / 0) (#12)
    by Steve M on Thu Mar 12, 2009 at 11:37:47 AM EST
    does the signing statement help to set up a clearcut test case?  I'm not sure what they can do to create a case or controversy in this case other than disobeying the law.

    Can they obey the law, and then say to a court "hey, we're suffering harm from obeying?"  I'm not sure that's a claim.

    Interesting point (none / 0) (#13)
    by Big Tent Democrat on Thu Mar 12, 2009 at 11:41:09 AM EST
    The idea of the President asking for a declaratory judgment does seem far fetched. But then again, how would Bush have gone about it?

    I think that in essence, President's have to give a presumption of constitutionality, just as a court does, to the actions of the Congress.

    In the first instance, it seemed to me the Chadha case put the President on firm constitutional ground in questioning the constitutionality of the provision in question.

    On the Board of Trustee issue, I see no such  clear ground.

    Parent

    If Congress cares enough about (none / 0) (#16)
    by oculus on Thu Mar 12, 2009 at 11:51:40 AM EST
    Obama's directive to the Treasury Sec'y, couldn't Congress or its representative file a lawsuit (mandamus)requesting the court order the Treasury to comply?  

    Parent
    I do not know (none / 0) (#17)
    by Big Tent Democrat on Thu Mar 12, 2009 at 11:56:09 AM EST
    I think they could, but, as always, the courts have a pretty free hand to decide anyway they want - between, ripeness, justiciability, political question, etc.

    Parent
    Ain't that the truth. (none / 0) (#18)
    by oculus on Thu Mar 12, 2009 at 12:03:28 PM EST
    Madoff with a bundle of money (none / 0) (#24)
    by joze46 on Thu Mar 12, 2009 at 12:57:41 PM EST
    Watching this Madoff stuff too. Very, very much a mystery as to where and how the billions of dollars have been pirated. Heck I am only a Joe six pack have no legal training but try to find out what is going on besides what the mainstream media is saying especially MSNBC with their associated station CNBC or CNN, and the Holy Mocker station Fox that seems to know what the American people need. Its good to read this blog that give wide open opinions with real content.  

    They our overseeing media,  government licensed in a mission to serve and educate the public which it, the media, is not doing to much of that content but making more political leverage  brought America to this point, yes with a lot of laugh, LoL but know that the issue is serious as hell.

    Trying to understand about this stuff called Torts, and what a President can do as the Chief executive. You know whats funny to me is for all these years political pundits especially Republicans ranted about how the country should be run like a business, wow, look where we are now that we all know business had its chance to get so big it can not fail. Which I think is totally absurd.

    Business could have a sale and sell off what ever it needs to raise money just as mom and pop have a garage sale. Good deals right now, come and get it to raise cash. But no they need American tax dollars to survive which is bull roar.

    Can the Chief executive issue an order in the public sector that could make a "TEMPORARY" waver for mortgage payments for the millions of the electorate currently on unemployment as part of a stimulus package? Why not do it?

    Sure certain stipulations could be included to filter out the fraud or those who continually work as obstructionist towards a free market system. Personally I think Madoff is covering up very important people who have pirated money through European entities and through our own stock market and Federal Reserve Board. It seems impossible for a scandal of this nature to exist with out the complicity of major players in our business, Mainstream Media, and political structure.      

    Earmarks? Is this signing (none / 0) (#25)
    by oldpro on Thu Mar 12, 2009 at 01:35:01 PM EST
    statement also directed at earmarks which tell agencies of the executive how to spend a certain amount within their budgets?

    And, as a 'constitutional law professor,' Obama must have given a fair amount of thought to what he thinks about signing statements by the executive.  Probably mentioned it in class, wouldn't you think?

    So, my question is, what did he/does he think of the ABA's '06 Task Force Report whose blue-ribbon panel was chaired by Neal Sonnet?

    The report stated in part:

    Among those unanimous recommendations, the Task Force voted to:
    oppose, as contrary to the rule of law and our constitutional system of separation of powers, a President's issuance of signing statements to claim the authority or state the intention to disregard or decline to enforce all or part of a law he has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress;
    urge the President, if he believes that any provision of a bill pending before Congress would be unconstitutional if enacted, to communicate such concerns to Congress prior to passage;
    urge the President to confine any signing statements to his views regarding the meaning, purpose, and significance of bills, and to use his veto power if he believes that all or part of a bill is unconstitutional;
    urge Congress to enact legislation requiring the President promptly to submit to Congress an official copy of all signing statements, and to report to Congress the reasons and legal basis for any instance in which he claims the authority, or states the intention, to disregard or decline to enforce all or part of a law he has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress, and to make all such submissions be available in a publicly accessible database.


    Obama was NOT a constitutional (5.00 / 2) (#27)
    by BackFromOhio on Thu Mar 12, 2009 at 02:01:23 PM EST
    law professor; as I understand it, Obama taught Civil Rights under the Constitution.

    Parent
    Hooboy... (5.00 / 1) (#30)
    by oldpro on Thu Mar 12, 2009 at 02:14:46 PM EST