In a 2007 interview with the Boston Globe, then-Senator Barack Obama discussed his firm opposition to presidential signing statements, or written pronouncements issued by the president upon signing a law. The George W. Bush had issued signing statements as a way of circumventing congressional directives, and Obama -- as the explicitly anti-Bush candidate -- condemned the practice:
I will not use signing statements to nullify or undermine congressional instructions as enacted into law. The problem with this administration is that it has attached signing statements to legislation in an effort to change the meaning of the legislation, to avoid enforcing certain provisions of the legislation that the President does not like, and to raise implausible or dubious constitutional objections to the legislation.
Of course, this being Obama, he was careful to qualify his opposition:
Signing statements have been used by presidents of both parties, dating back to Andrew Jackson. While it is legitimate for a president to issue a signing statement to clarify his understanding of ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute the law, it is a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability. [...]
No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives; unfortunately, the Bush Administration has gone much further than that. [Emphasis mine]
At the risk of sounding like a complete apologist, all of this is worth noting when examining President Obama's recent decision to issue a signing statement in defiance to a measure in the new budget, which would, according to The New York Times, "prevent him from appointing White House “czars” to oversee major policy initiatives." Here is the statement in question:
“The President has well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority,” he wrote. “The President also has the prerogative to obtain advice that will assist him in carrying out his constitutional responsibilities, and do so not only from executive branch officials and employees outside the White House, but also from advisers within it. Legislative efforts that significantly impede the President's ability to exercise his supervisory and coordinating authorities or to obtain the views of the appropriate senior advisers violate the separation of powers by undermining the President's ability to exercise his constitutional responsibilities and take care that the laws be faithfully executed.”
Therefore, the president wrote, “the executive branch will construe section 2262 not to abrogate these Presidential prerogatives.”
Glenn Greenwald isn't particularly happy with the statement, and John Cole calls it a flip-flop, but on the face of it, this seems perfectly consistent with Obama's campaign position. (Greenwald cites a campaign appearance where Obama made a more resolute statement of opposition, but I'm not sure that it should hold more weight than the Globe interview.) Unlike Bush, Obama isn't claiming new powers or trying to make a run around congressional supervision. Rather, Obama is making the reasonable argument that Congress has no right to control the methods by which the president obtains advice and counsel. John Whitehouse explains:
The entirety of history of Congressional right to confirm people refers to officers who have official duty. What we have here is a hypothetical that not even Marshall thought Congress would resort to: limiting who the President can merely look to for policy advice without any additional responsibility. [...]
What's important to realize (and I think Drum does) about the czars is that they do not give the President any additional power...the Constitution gives the executive carte blanche authority on whom he can consult with.
On a whole host of issues, President Obama is guilty of the same executive overreach that marred the Bush administration. This, however, isn't one of them.
