Obama v. Obama on signing statements

[Jefferson23]

Sunday, Apr 17, 2011 10:18 ET

Glenn Greenwald

The issue of signing statements is more complex than the political controversy over them suggests. When condemning Bush/Cheney lawlessness, I rarely focused on their use of signing statements. That was true for several reasons.

There's nothing inherently illegitimate about a President's expressing his view on various laws. It's vastly preferable for a President to openly declare his intent to violate the law than to do so secretly. Signing statements themselves are just instruments for conveying constitutional views of the law; whether they're truly odious depends upon the view that is being expressed (what made Bush so radical were the theories of executive omnipotence he embraced, not his use of signing statements to express those views).

And a reasonable argument can be made (though it's not one I share) that a President's duty to uphold the Constitution can sometimes be advanced more by refusing to execute an unconstitutional law than by enforcing it; that view, at least for some, is a critical part of the formal definition of the "unitary theory of the executive" and is something right-wing theorists (and now Obama supporters) have long maintained (I ultimately reject that view because the constitutionally legitimate means for a President to object to an unconstitutional law is to veto it, not violate it; moreover, the power to declare laws unconstitutional lies with courts, not the President). But all of those issues introduce nuance into the question of signing statements that is often lacking in the political discussions they've triggered.

But there was no such nuance present when Barack Obama, during a 2008 campaign rally, made his position known on signing statements. After being asked by an audience member whether he would "promise" not to use signing statements to override Congressional statutes, he stated simply "yes," and then elaborated as follows:

remainder: http://www.salon.com/news/opinion/glenn_greenwald/2011/04/17/signing_statements/index.html

[CelticThunder]

1. At this point in the game, it's clear how Obama rolls. If he campaigned against it, he does it. If

he campaigned for it, he doesn't do it.

Notable exception being consistently refusing to hold the Bush administration accountable for its crimes.

Politics as usual! No hope, no change.

[Tx4obama]

2. That is NOT true. President Obama has fulfilled many campaign promises.

134 Campaign Promises Kept: http://politifact.com/truth-o-meter/promises/obameter/rulings/promise-kept/

219 Campaign Promises In the Works: http://politifact.com/truth-o-meter/promises/obameter/rulings/in-the-works/

[Name removed]

4. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Fearless]

26. Hahahaha! Yeah right. Bits of cheese to keep the pols in line.

All the big stuff he's turned his back on America on.

[democracy1st]

28. You're on point this is nothing more than a Goldman Sachs admin!

[SlimJimmy]

3. I agree with everything you've said.

I don't think they are nuanced at all. I agree more that they are simply an invalid means of declaring something unconstitutional. I was dead set against them when Bush signed them, and haven't changed my mind for President Obama.

[Dokkie]

5. bookmarked for later

[LandR]

6. latest scholarly articles see signing statements validly

This article has some informative points about signing statements, but concluding with fraud takes this rather far and I think weakens the article. I'm actually conducting an empirical study on signing statements right now and I know that scholars have written about the constitutionality of the modern use of signing statements since the late '80s. While George W. Bush used signing statements to challenge twice as many provisions as all his predecessors combined, thereby bringing more attention to this issue, the contemporary focus on signing statements has largely moved past whether they are constitutional or not.

Basically, signing statements have never faced a formal legal challenge and doing so is difficult due to standing, plus Congress has only introduced thirteen bills in its history regarding a restriction on signing statements - all of which never made it through committee. Therefore, legal challenges do not appear on the horizon and Congress does not see signing statements as great of a threat as many editorials on this issue do. Aside from the constitutional clauses that some argue allow presidents to issue signing statements, such as the Take Care Clause or the Oath Clause, some argue signing statements also qualify for Skidmore deference.

Take a look at some of the latest scholarly articles on signing statements on google scholar and you will see that the latest studies assume a valid perspective of signing statements and instead consider how the use of this device affects the modern policy-making and enacting processes. I'm not trying to burst a bubble or anything - I'm only trying to convey the latest focus on signing statements so that people do not go tell all their buddies that Obama and almost every other modern president is a fraud. Nonetheless, signing statements are fascinating and they are a prime example of how the modern presidency differs from the traditional presidency.

[HankyDubs]

7. if presidents want a line item veto

they should push for a vote on it. Otherwise the signing statement was used by Obama in lieu of a line item veto in this budget measure. I happen to agree that the "no czars" provision was mind-numbingly stupid and infringed on executive authority.

There is great danger in establishing the precedent that the president can simply ignore congress when he wishes. Congress, being the closest to the people, should have the greatest authority. Now it appears that they are the weakest link.

[LandR]

8. the line item veto argument and abuse of separation of powers

There are those who argue the modern use of the signing statement is equivalent to the line-item veto, which was previously struck down in Clinton v. City of New York, so the signing statement is also unconstitutional. However, the line-item veto "cancels" individual provisions, whereas signing statements omit provisions. Canceling provisions ultimately amends the law without bicameral approval, which the Court found unconstitutional. The omission of provisions via signing statements however does not technically amend the law. A broad interpretation of the Take Care Clause appears to vest policy-enforcing authority to the President and executive branch that allows a President to not execute a provision of law.

Further, do not mistake the effect of the line-item veto as why it is unconstitutional, but rather the process of how it achieves the effect. With legally distinguishable processes between the line-item veto and the modern use of the signing statement, the precedent from Clinton is not parallel to the use of modern signing statements. In other words, the modern use of the signing statement accomplishes the effect of the line-item veto, but without the unconstitutional process of the line-item veto.

Perhaps the best argument against the modern use of the signing statement is that it potentially allows for an abuse of the separation of powers. Thus, signing statements appear to be constitutional, but they still may not be good for our democracy, so Congress should pass a law restricting or prohibiting these signing statements. As mentioned in my previous post, Congress has never come close to passing any statutes restricting signing statements, so the perceived threat may not be as substantial as some may suggest. Even though the modern use of signing statements potentially allows for an abuse of power, as best exemplified by GW Bush, others still argue signing statements can also be a useful and pragmatic tool for presidents.

[HankyDubs]

11. horseshit

First of all, You could find lawyers that would tell you that dolphins are birds and that waterboarding isn't torture. Teams of lawyers are always ready to agree with any loony idea that comes down the road, as long as they are well compensated. In this case, Sammy Alito was very well compensated.

"However, the line-item veto "cancels" individual provisions, whereas signing statements omit provisions."

No matter how many times you say "technically" the end result is exactly the same.

"In other words, the modern use of the signing statement accomplishes the effect of the line-item veto, but without the unconstitutional process of the line-item veto."

Nowhere in the constitution does Madison refer to signing statements. The people have not chosen to grant the power via amendment. The expressed purpose of the document is to LIMIT the authority that one person could obtain. Signing statements violate both the letter and the spirit of the document. That makes them unconstitutional. If a president feels her powers are being infringed upon by the congress, she may veto the bill in its entirety or she may seek recourse in the judiciary...and these are the constitutional avenues for her to take.

"Even though the modern use of signing statements potentially allows for an abuse of power,as best exemplified by GW Bush..."

Yeah, uhhh...POTENTIALLY? Let me fix that sentence for you:

Even though the modern use of signing statements ACTUALLY allows for an abuse of power, as best exemplified by GW Bush...

There...fixed. An ABA taskforce stated in 2006 that signing statements: "undermine the rule of law and our constitutional system of separation of powers".

[LandR]

14. not so fast

Please show me where it says in the Constitution the President or executive branch must enforce every provision of every law. Good luck because it never does. You seem to employ a very strict interpretation of the enumerated powers in the Constitution.

You say: "If a president feels her powers are being infringed upon by the congress, she may veto the bill in its entirety or she may seek recourse in the judiciary...and these are the constitutional avenues for her to take."

You see, enumerated powers of Article 2 are not the only presidential powers that exist. More specifically, inherent powers of the Constitution allow for a broader range of authority than you suggest. As mentioned earlier, the Take Care Clause acknowledges the President and executive branch have a key role in the policy-enforcing process. Also, policy-making authorities of Congress are contrarily limited by the Article 1 phrase of "herein granted," which suggests Congress only has the powers listed or enumerated. On the other hand, Article 2 uses the phrase "vested," to suggest all the President's powers are not enumerated.

Regarding the line-item veto argument, keep in mind that "canceling" a provision of a law literally strikes the provision from the law and the record of the law, whereas the omission of a provision does not strike it from the law. Thus, the law stays the same under a signing statement and does not need bicameral approval. Under the Oath Clause, some argue the responsibility to "preserve and protect the Constitution to the best of her ability" also allows a President to have unique decision-making authority.

[HankyDubs]

15. is this really the argument you want to make?

Please show me where it says in the Constitution the President or executive branch must enforce every provision of every law.

So your argument is that the president can pronounce himself to be above the law if he so chooses? REALLY?

"he shall take Care that the Laws be faithfully executed"

He must take care that laws are executed FAITHFULLY. This clause does not say that he is allowed to pick and choose which laws or portions of laws he wants to enforce. Your reading of this clause opens up a pandoras box of abuse and totally violates the spirit of the document. Under your reading, why couldn't the president simply ignore all kinds of laws that he doesn't happen to like? No sane human being can think of this as "faithful execution" of the laws. Again, this is what the ABA said in 2006. You don't appear to want to confront that fact.

"You seem to employ a very strict interpretation of the enumerated powers in the Constitution."

Actually the so-called "originalists" are the ones who pushed this scam in the first place. No interpretation of the constitution is broad enough to insert powers that SIMPLY DO NOT EXIST in the document anywhere, whether implied or enumerated. Signing statements are not mentioned, therefore their use in this manner violates both letter and the spirit of the constitution.

Preserving and protecting the constitution could mean many things, but it cannot mean that a president protects the constitution by accumulating for herself powers that are not implied or enumerated in the document by violating or ignoring laws that are passed in a constitutional manner.

In this particular instance, the president can show standing and I think a very good case is there to be made that this "czars" provision infringes on his powers. Whether or not it actually does infringe is not a matter for him to decide--it is a matter for the judiciary.

[LandR]

17. misinterpreting the Take Care Clause

"Faithful execution" does not require certain execution of every provision, but also allows for non-execution.

If the president interprets the enforcement of a provision of law as interfering with the execution of the law, he can "take care" and "protect the Constitution to the best of his ability" and not enforce the provision. Your strict interpretation of the Constitution does not rule out the use of signing statements. Since you suggest signing statements are not in the Constitution and are therefore in violation of the "spirit" of the document, this also suggests the only powers that can exist are the powers listed in the Constitution. Nowhere will you find a right to privacy in the Constitution, yet a right to privacy exists with constitutional support. The Constitution also grants authority to Congress to "coin money," and with your interpretation, one could interpret paper money as not being listed in the Constitution, so Congress does not have authority to regulate paper money - only coined money.

Keep in mind the Constitution is not only about what powers are listed, but also what powers are left out. If the Founders wanted to prevent a presidential power, they would have expressly ruled it out. Regardless of the lack of the phrase of "signing statements" being in the Constitution, the Founders did not rule out a power of the President to assert authority over provision of laws he interprets as unconstitutional. If the Take Care Clause was meant to require the President to enforce every provision of every law, this clause would have been more specific and less broad.

[HankyDubs]

19. Misinterpreting eh?

That's pretty glib. Again you simply don't wish to deal with the fact that the ABA taskforce has spoken on this. Is the ABA misinterpreting the constitution? That's a yes/no question, btw. If you continue to ignore it, I'll simply have to stop participating in this discussion.

"If the president interprets..."

The president infringes on judicial authority when he takes it upon himself to "interpret" the constitution. Nothing could be more clear!

If the Founders wanted to prevent a presidential power, they would have expressly ruled it out.

The founders have provided mechanisms for expanding powers of any of the branches. They don't need (it would be impossible) to rule out everything that any tyrant could dream up, when their meaning is perfectly clear. Separation of powers! Do we really need a "Schoolhouse Rock" review?

"Nowhere will you find a right to privacy in the Constitution, yet a right to privacy exists with constitutional support."

Actually the right to privacy is implied in amendments 1,3,4,5, and 14. The judiciary, the branch responsible for interpreting the constitution has ruled on this many times. See how that works? The judiciary, not the president, is responsible for interpreting the constitution. I doubt that the judicial branch is going to rule in such a way as to hand its interpretative prerogative over to the executive.

If the Take Care Clause was meant to require the President to enforce every provision of every law, this clause would have been more specific and less broad.

And again, it is not up to the president to interpret the meaning of the Take Care clause. Can you tell me what branch of government has that responsibility? Hint: it's not the executive.

Do you genuinely fail to recognize the pandora's box you are opening here?

[LandR]

20. yes you heard me right so let me say it even clearer

To make it painstakingly obvious to you, when the ABA says something, the heavens do not sketch it in stone. While I respect the organization and agree with them on many issues, simply citing that the ABA has your same conclusion does not make it right - it's the rationale that matters, not who you cite. Me ignoring your references to the ABA does not change any aspect of my argument or my criticisms of your argument - the rationale is the same no matter what the ABA thinks. While disagreeing with the ABA on most issues is probably not popular, disagreeing with the ABA does not mean the opposition is arbitrarily false. YES I disagree with the ABA, as do many political scholars, shall I read between the lines for you even more?

Next you point out that privacy is not in the Constitution, yet it is supported throughout the Constitution, as I pointed out earlier. You previously said signing statements are not in the Constitution, so they are unconstitutional. Though, now you admit something does not have to be in the Constitution, it only has to be implied. Maintain some consistency.

Then you say the judicial branch has the responsibility to interpret the Constitution, not the President. While the Court has the final say on interpretations, this does not mean the President cannot also interpret the Constitution. Most would agree that it would be irresponsible for the President not to interpret the Constitution (thus ignoring what he thinks). Also, the President has not taken this power from the judiciary, as you seem to suggest. An interpretation of the Court still supersedes the interpretation of the President, but the President can still make interpretations. Announcements of the President's views are actually better than not announcing the view because it facilitates pragmatic government.

[HankyDubs]

22. you argued from authority

...the authorities you cited were "scholarly articles" and now "political scholars." Of course the ABA is not infallible, and their findings to not carry force of law here. When you said that I am misinterpreting the "Take Care" clause, I was certainly free to point out that the ABA supports my point of view. You attempted to patronize and argue from authority, and I used the ABA's finding to blow a giant hole in that bullshit. So now it's not that I am "misinterpreting" but that we hold differing points of view (mine happens to be correct).

Who is the ultimate authority on interpreting the Take Care clause? You guessed it! The SCOTUS. That's where this debate should end up, and I'm confident that SCOTUS would take my position, if only because they won't hand off their powers to the executive branch (and well they should not). This is far too important to exist in legal limbo, it should be decided once and for all.

Also, the President has not taken this power from the judiciary, as you seem to suggest.

He has taken power from the congress to craft legislation when he picks and chooses what portions of a law he wants to enforce. He takes power from the judiciary when he presumes to do their job and interpret the constitution. Double whammy. The congress is already far too weak compared to the other branches, weakening the legislative branch even further is very dangerous. Why even bother with the congress? The president can just write the legislation himself and then sign it into law.

"Though, now you admit something does not have to be in the Constitution, it only has to be implied. Maintain some consistency."

There is no inconsistency in my position whatsoever. The courts have ruled in favor of the right to privacy on numerous occasions. Should the court decide wrongly (as it often does), there are constitutional avenues to address bad decisions. My belief that this right is implied is not based solely on my opinion, but on many rulings of the court. The inconsistency is in YOUR position, in which your view on signing statements essentially varies based on who holds the office of president and what laws she chooses to ignore.

"While the Court has the final say on interpretations, this does not mean the President cannot also interpret the Constitution."

The president can announce whatever he wants to. I hope he has a fun time with that. If President Haley Barbour (perish the fucking thought) announced that he wanted to interpret away the Civil Rights Act of 1964, would THAT be taking signing statements too far? As you already pointed out, these signing statements have ALREADY resulted in abuses of power...there is every reason to believe that more abuses are on the way. The president does not need this power, it is not specifically granted to her under the constitution, it infringes on powers that rightfully rest with the other branches, and the potential for abuse is enormous.

I've already said that I think the president's "interpretation" is correct here, but that does not mean he gets to ignore congress and supercede the judiciary. If he wanted to challenge the "czars" provision he should have done so in a constitutional manner, not continue this dangerous extra-constitutional precedent, wherein the president ignores provisions of laws passed by congress because they limit his authority. This is a dagger pointed at the heart of the separation of powers, and thus at foundations of the republic itself.

[HankyDubs]

23. and finally

your interpretation of these words:

"he shall take Care that the Laws be faithfully executed"

to mean that the president has authority to simply ignore portions of laws instead of "faithfully executing" them requires a ridiculous leap on your part that is totally nonsensical. The clause states that the president "shall take care that laws be executed faithfully," but you read it to say "the president shall take care that the laws be executed inasmuch as he agrees with them."

Totally fucking preposterous. Up is down, wrong is right, day is night.

[LandR]

24. an anatomy of your inconsistency

Maybe this will help you see your inconsistency:

1. You said signing statements are unconstitutional because Madison did not include them in the Constitution.

2. "Privacy" also isn't in the Constitution, as I first said, but the indirect support of the notion throughout the Constitution allows for a constitutional right to privacy to exist. You have agreed a right to privacy exists and the indirect references in the Constitution to privacy are suffice.

3. If you were consistent, you would have said a right to privacy is not directly enumerated in the Constitution (it is only indrectly referred to), so it is still unconstitutional.

As I've said, the Oath and Take Care Clauses provide indirect references to the function of the modern signing statement, just as several amendments provide indirect references to privacy. Your apparent failure to see the indirect references to the function of the signing statement is why you perceive signing statements unconstitutionally.

Then you say "The inconsistency is in YOUR position, in which your view on signing statements essentially varies based on who holds the office of president and what laws she chooses to ignore."

This actually made me laugh. Nowhere have I expressed any indifference to Obama or any other President on the issue of signing statements. Now you are making stuff up.

You later put words in my mouth yet again, and even go as far to put it in quotes this time when I did not say it. In reference to the Take Care Clause, I said: "If the Take Care Clause was meant to require the President to enforce every provision of every law, this clause would have been more specific and less broad."

Though, you said: "The clause states that the president "shall take care that laws be executed faithfully," but you read it to say "the president shall take care that the laws be executed inasmuch as he agrees with them.""

That is not what I said. I said the Take Care Clause is a broad statement, not one that suggests the President must enforce every provision of every law.

While I agree with you that this is an important argument over the interpretation of Article 2 that should not be in legal limbo, another problem with invalidating the modern use of signing statements is the issue of standing. Who can achieve standing to challenge a signing statement? In short, maybe no one. There are articles about this on google scholar if you're interested.

You have also ignored the claim in my first post that signing statements qualify for Skidmore deference. Aside from the entire constitutionality argument, Skidmore provides a broad precedent for deference to the executive branch, especially in matters of specialization, such as enforcing a law. Thus, even if I concede my argument that the Oath and Take Care Clauses do not indirectly refer to the function of the modern signing statement, you still have to argue signing statements do not qualify for Skidmore deference, and good luck with that one.

Perhaps the only, and certainly quickest, resolution is for Congress to pass a law that grants itself standing or to use the Necessary and Proper Clause to restrict or prohibit signing statements. Again, Congress has failed to come close to passing such a statute, even amid the most controversial use of signing statements in history (during GW Bush). If Congress couldn't do it during that tumultuous time, it does not appear likely it will pass. Thus, with the legal limbo if you will, as well as Congress's apparent alignment with my view by deferring on this issue, maintaining an invalid perspective of signing statements is to ignore an important function of the modern executive branch.

[HankyDubs]

27. long post sorry

#1 Wrong. I said that Madison didn't include the words "signing statement" in the constitution, so obviously it is not enumerated.
I also said that the idea that the president may ignore laws or portions of laws violates the entire spirit of the document. A central and oft-stated intention of the founders, is to prevent one branch of government from gaining too much power (separation of powers) as is expressed in the very existence of the first three articles. There is a reason that the right to privacy is not stated verbatim in the constitution. "Privacy," in the language of that time period, would refer to activities that occurred in a toilet or an outhouse, it would never have occurred to Madison to include a word with those connotations in the constitution. Signing statements also belong in the toilet, but that's not the reason these words were omitted from the document.

#2 This isn't a matter that needs a whole lot of fancy interpretation. Its not hard to see the right to privacy of religious belief in the 1st. It's not hard to see a right to privacy of the home in the 3rd. Its not hard to see a right to privacy in the words "The right of the people to be secure in their persons, houses, papers, and effects." And so on and so on for 5,9, and 14. I also pointed out that the right to privacy has been ruled on over and over again. You assert repeatedly that the power is implied, but not court ever ruled in your favor. This is not insignificant, there has been no such ruling on this imaginary power of presidents, (asserted by the executive alone) to ignore the law, which for some reason did not exist until nearly 200 years after the document had been ratified. Magical new powers!

There is also reason to believe that the constitution SPECIFICALLY FORBIDS anything resembling these "modern" signing statements. First there is the presentment clause: "If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated..." If he approves he shall sign, if not he shall return it with his objections (i.e. he believes it to be unconsitutional infringement). There is no third option. If there is unconsitutional infringement, as could convincingly be argued with the "czars" provision, then he can show standing and the matter can be resolved in the courts, as is proper.

Then also there is Article III section 2 The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States... The president has absolutely no consitutional authority to usurp this enumerated power. My reading, which is just as valid as your own, is that signing statements are specifically forbidden, and the nice thing is that this reading ACTUALLY MAKES SENSE where yours does not. Your reading muddies the waters and leaves a critical point in legal limbo.

#3 Again, not a matter that is open to question. Not only is the implied right to privacy a means to protect the liberties of individual persons (see 9th amendment), not only is it easily recognizable in several other amendments, but it has been ruled on over and over again.

It takes a giant leap to read the words "he shall take care that the laws be faithfully executed" as meaning the EXACT OPPOSITE of what a reasonable person would recognize them to mean. It takes a whole lot of fancy footwork to interpret "faithful execution" to mean "decide not to enforce laws that the president doesn't like." And of course I put words in your mouth there...I was mocking your presposterous argument. Faithful, adj.--strict or thorough in the performance of duty. Strict or thorough, not pick and choose.

Obviously at this point, the "Take Care" clause does not support your interpretation. That's clear. You have to read it to mean the exact opposite of what it actually says, so I'll dispense with that as being utter nonsense. Moving on to the "oath" clause, you have the same problem. The oath clause commits the president to protect and defend the constitution. Since the consitution leaves interpretation of the document (and of laws that flow from it) in the hands of the judiciary (again article III section 2), the president is not protecting or defending the constitution by usurping powers that are not enumerated and cannot be implied by standards that any reasonable person (outside of the executive or sycophants with a vested interest) would accept. Any president who makes use of signing statements in this way is VIOLATING his oath of office to protect and defend, not adhering to it. So contrary to your assertions, the clauses you cite are actually a foundation for an argument to reject as abuses of authority every single "modern" signing statement. Maybe you want to assert the Nixon doctrine here...if the president says it's legal (or illegal) that means it's legal?

"Nowhere have I expressed any indifference to Obama or any other President on the issue of signing statements"

Haven't you? You said that the use of signing statements by GWB was "potentially abusive." I corrected you there, since these were actual abuses. What changes when Obama does it? Is the total number of signing statements at issue, or is it the nature of the statements themselves?

You also didn't address the other point on this matter. Where does this power end? Since it has not been ruled on and exists entirely in backasswards interpretations, what constitutional limits are placed on it? What are the checks on this power? None. I asked whether you think POTUS Haley Barbour should be able to interpret away the CRA of 1964. You have two options here. You can say that POTUS Barbour does not have this authority for any reason you can think of (there are many), but that would make your position inconsistent and you lose. Your other option is to say that he does have the authority to interpret away the CRA, at which point the floodgates open and we might as well have a monarch. You didn't answer, because according to your view there is nothing that would stop him from doing so. With a few strokes of a pen he could go back and declare that he didn't wish to enforce any laws at all. Long live His Royal Majesty King Haley III!

Bush declared he had the unilateral authority to ignore the Geneva Conventions and to indefinitely detain without due process both immigrants and citizens as enemy combatants. Clearly...CLEARLY the president has no authority to ignore treaties that were ratified and have the force of law, and he is also in violation of the 5th amendment. You can't possibly, as a practical matter, think he has the authority to do this.

"As I've said, the Oath and Take Care Clauses provide indirect references to the function of the modern signing statement"

You've said that, but that doesn't make it so. We've been over that. It's horseshit.

"maintaining an invalid perspective of signing statements"

Again this is you and "political scholars" saying my perspective is invalid, but the ABA disagrees. There is no ruling, only assertions. Around in a circle we go.

"you still have to argue signing statements do not qualify for Skidmore deference, and good luck with that one."

From Skidmore:

We consider that the rulings, interpretations, and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.

The courts in the Armour case weighed the evidence in the particular case in the light of the Administrator's rulings and reached a result consistent therewith. The evidence in this case, in some respects, such as the understanding as to separate compensation for answering alarms, is different. Each case must stand on its own facts.

Done and done. The validity of these hundreds (600 by Bush alone) of signing statements are not being decided by any court on a case by case basis (each standing on its own facts), and there is no judgment made by any court about the thoroughness, validity or consistency of any one of them. I can argue that skidmore deference does not apply because there IS NO CASE BEING DECIDED BY ANY COURT. In Chevron v EPA and Mead v US (to choose two examples), specific rulings were made in similar circumstances based on specific cases and particular situations, but this is not the case regarding signing statements. Skidmore applies to rule-making entities within the executive, and in some cases the court sided with the executive branch, in some cases against the executive branch...but each case stood on its own facts. Not the case with signing statements.

"Again, Congress has failed to come close to passing such a statute, even amid the most controversial use of signing statements in history (during GW Bush)."

You are inferring that the failure to pass a law specifically dealing with this puts the congress in alignment with you, but that isn't a safe assumption. There are many reasons that laws fail to pass, but that doesn't imply congress' consent on this particular issue. I can think of two reasons right now that a law hasn't been passed. #1 the law would have to be passed by margins sufficient to survive a presidential veto (since no president would give up this power) and, #2 even if this standard were met, the president could simply attach a signing statement to the bill regarding signing statements asserting that he does not wish to follow any portions of the bill that restrict his authority...to issue signing statements. Who would have standing to challenge that signing statement on the bill regarding signing statements? Do the people need to ratify a constitutional amendment to take powers away from the executive that are neither enumerated nor implied, and not even subject to judicial scrutiny? That's ridiculous. Imaginary powers bestowed on the executive by her own self, which (as far as I can tell) could only be taken away by meeting the highest possible standard that our system proscribes.

"Who can achieve standing to challenge a signing statement? In short, maybe no one."

If the power is not enumerated or even ruled on as an implied power, and "maybe no one" has standing to challenge the executive who asserts this power, that's a clue! It's not implied (no court's ruling ever said it was) or enumerated, and it can't be challenged...that should tell you something--->it's not constitutional because there is no check on it from either legislative or judicial branches. It's inherently corrosive to the foundations of the republic; only the conscience of the president prevents abuse of this power. That is unacceptable; concentrating this sort of power in one person is clearly not in accordance with the designs of the founders or the will of the people.

[LandR]

29. Admission of Skidmore prevents blanket negation

I honestly don't have time to respond to all of your questions, though they are all somewhat interesting and show why the modern signing statement, which are technically known as "constitutional signing statements," are important, albeit quite theoretical. To address what you mentioned about Skidmore reference, I agree with you.

As you said, Skidmore suggests "each case must stand on its own facts" (you see how my quotes only refer to what you said?) (also fyi - my references to two different presidents does not qualify as inconsistent - inconsistency is being a hypocrite or violating a principle you say you support). If you assume a case by case approach for whether signing statements are valid, you finally acknowledge constitutional signing statements could be valid.

With a case by case approach, as provided through Skidmore, the constitutionality of each signing statement would be based on its "persuasiveness," as quoted in Mead. Thus, a blanket negation of signing statements is ruled out, thereby disregarding the soundness of your entire constitutionality argument. Even though you suggest the absence of any court rulings on this issue disregards Skidmore deference, keep in mind no court has ever ruled on the constitutionality of constitutional signing statements. Thus, asserting silence of the court as the only support for your argument is quite weak, whereas the argument for Skidmore deference is quite strong.

While your at it though, go ahead and try to argue executive orders also violate the Constitution. Nowhere in the Constitution will you find "executive order." You see, the President has more powers than your strict interpretation of the Constitution suggests. Presidential proclamations are a big part of history - see the Emancipation Proclamation for instance. In other words, while we can see the signing statement has the potential for abuse, there are also pragmatic functions of the signing statement that make it a useful device. Overall, if a President were to drastically abuse this power, perhaps he would not be reelected or he would be impeached, which appears to be the only checks at this time on the signing statement.

Also, there are Supreme Court cases that allow the President to contradict the law, such as Myers v. US, which suggests the President does have a power to interpret and not enforce a law, but then again this power is not absolute, as provided in Youngstown. The Court has painted a very unclear line of presidential authority, which is illustrated with each of the six justices in the majority ruling in Youngstown releasing their own opinion.

Lastly, you said Bush issued 600 signing statements. This actually is not the best way to count signing statements. Since Presidents usually challenge more than one provision of law in each constitutional signing statement, scholars instead count the number of provisions that are challenged, not the signing statements. If you count provisions challenged, GW Bush challenged 1200 provisions of law throughout his presidency, which is twice as many as his predecessors combined. Utilizing your method of counting, you would actually see GW Bush issued fewer signing statements than other Presidents.

[HankyDubs]

31. your house of cards has collapsed

My constitutionality argument was based on the abscence of any enumerated or implied power of the president to choose to ignore laws. Not only did I show that you couldn't actually find any language in the constitution to support your point of view, I showed tha the two sections you cite actually form the basis for a rejection of your point of view.

After that I dealt with your Skidmore red herring. Skidmore applies to CASES BROUGHT BEFORE COURTS. No case, no skidmore.

If the issue ever does come before a court, and the court rules in a fashion similar to skidmore, I could certainly live with that...because it would establish a precedent for challenging signing statements based on the persusasiveness of the argument and the validity of the claim. The "no czars" clause would be a great case to test it, since I have little doubt that Obama's lawyers could argue convincingly that the provision acutally does infringe on his authority. If congress passes laws that contain blatantly unconstitutional provisions, I could accept the idea that the president herself could simply ignore those unconstitutional provisions. I still don't think the power is implied, but if there is some check on it from a disinterested party or parties then I'd consider that a win for the republic.

My primary objection to the imaginary "signing statement" authority is that there is no check on that power by the other branches and no limit to the authority being claimed. If the president has to make a case before a court that his use of this extra-constitutional authority is in the interest of the people, and that court can then agree or disagree with him, that's a check.

Now you want to change the subject to executive orders. I won't follow you there at this point. You've had to retreat from your position and that's good. Note that I did all of this without spending a single day in law school, arguing only with facts I could research online in a few minutes. No fancy tap-dancing of the sort you are engaged in, just common sense, precedent and research.

[LandR]

32. my house survives earthquakes but nice try and good exercise

This argument is over the validity of constitutional signing statements (whether they are illegal or not). Since you agree signing statements would likely be eligible for Skidmore deference if challenged, I am pleased you have agreed with me that they can be used validly and are not unconstitutional. You not only agreed they can be used validly, but also that they can be quite useful, as illustrated with the recent negation of the "czar" provision.

As far as backing away from my argument regarding the Take Care and Oath Clauses, well I never did if you can recall and I stand by that argument. It's a method of argumentation where one says even if the opposition is right on one premise, a following premise negates the opposition's entire argument. That is what I did here. I said even if I wasn't right, your premise still doesn't create the desired outcome. Contrarily, my position reaches the desired outcome. It's a risky method of argumentation because some people accuse you of admitting your wrong, despite never doing so. If you won this argument, I would have agreed constitutional signing statements are invalid, but that obviously has not occurred.

Like I said in my original post, the contemporary focus is not on whether constitutional signing statements are constitutional, but how they affect the policy-making and enforcing processes. For instance, a rising use of signing statements may lead to fewer exercises of other methods of executive power among modern presidents. There are many unanswered questions about signing statements and their effects, so I encourage you and anyone else to continue to research the subject.

And no I wasn't changing the subject to executive orders. I don't expect you to address that question because doing so would require overturning not quite two centuries of precedents regarding executive orders. The point is that a presidential power, like the constitutional signing statement, is not enumerated in the Constitution, yet is accepted as a valid presidential power.

[Jefferson23]

9. I believe you misunderstand his application of the term fraud. Greenwald

is speaking to what Obama has said about the use of signing statements prior to winning the presidency..and he said a form
of fraud..just be to clear. "To insist during the campaign that Presidents have no power to start wars without Congress or to ignore laws the President believes are unconstitutional -- and then do exactly that once he's been vested with that power -- is a form of fraud"


Please consider posting at some point your study on the subject? I have read some, although not extensively on the
matter, one individual, a Constitutional scholar, a former Republican congressman, Mickey Edwards. I found him interesting
as he is politically conservative. Reading his opinions regarding GW Bush on signing statements I found surprising
differences..old school Republicans vs todays brand.

Welcome to DU.




SNIP*
On January 31, 2007, the House Judiciary Committee conducted an oversight hearing on “Presidential Signing Statements under the Bush Administration.” John Elwood, Deputy Assistant Attorney General, Office of Legal Counsel; Mickey Edwards, former Member of Congress from the State of Oklahoma; Karen Mathis, President of the ABA; Nicholas Rosenkranz, Professor of Law at Georgetown University Law Center; and Charles Ogletree, Professor of Law at Harvard Law School, provided oral and written testimony, available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_house_hearings&docid=f:32844.pdf.

in full: http://2009transition.org/liberty-security/index.php?option=com_content&view=article&id=47&Itemid=64

[LandR]

12. fraud still isn't appropriate

Even though Obama promised he would not use signing statements during his campaign and he has in fact used them several times to announce he will not execute specific provisions of laws, suggesting this is fraud gives the wrong connotation. Fraud indicates intentional deception. In other words, a broken campaign promise is not necessarily fraud.

In 2009, Obama issued a memorandum about signing statements that essentially announced the shift in his position. Check it out here: http://www.whitehouse.gov/the_press_office/Memorandum-on-Presidential-Signing-Statements

If Greenwald wants to use "fraud," he must connect more dots. Did Obama change his position, yes. Did he intentionally deceive his original view on this issue? Again, I'm not trying to burst any bubbles, only trying to provide a more balanced focus on this issue.

Unsurprisingly, fits of "fraud" and unconstitutional intrusions are regularly cited in editorials about signing statements, but a deeper understanding of this issue brings the tone down a few notches. Thus, even though Greenwald used fraud in the context of Obama's broken promise, the use of such language in relation to signing statements is common and I argue this article ultimately tries to indirectly show a connection between signing statements and fraud. Like I said in my first post, Greenwald gave some informative points at the outset of the article, but concluding this discussion with a form of fraud sets the wrong tone.

One of the reasons the modern use of signing statements is so fascinating is that it shows how the modern President and executive branch broadly interprets the Constitution. Merely understanding how the Constitution is used in the modern era is a pretty interesting exercise in and of itself.

Thanks for the welcoming, too. I'll consider posting my study once its published.

[Jefferson23]

13. I don't think you were trying to burst any bubbles, and Greenwald

can certainly speak for himself yet, I imagine his use of the term in his opinion is appropriate
regardless of direct knowledge of Obama's intent..focusing more on so many changes of heart so to
speak Obama has displayed these last two years.

Good luck with your work, very interesting subject.

[LandR]

16. even if we disagree, this is not a significant broken promise

While we may disagree on Greenwald's use of the term fraud in relation to a broken campaign promise, we probably agree that it is not a good idea to break campaign promises for any elected official. With this concern, I think Greenwald's article ultimately attempts to amplify this broken promise of Obama. Though, since many are not aware of signing statements or their use in modern government, this broken promise probably would not bring much attention in 2012. Criticizing Obama for using signing statements could even appear desperate.

Will this broken promise hurt Obama? No, I do not think this broken promise will stick - simply because of the complex nature of this issue and the reasonable shift Obama highlighted in his 2009 memorandum about signing statements, which shows how this was not an abrupt shift.

Also, Obama has issued these types of signing statements throughout his presidency and with Greenwald raising this issue at this time may even suggest he was merely trying to fill his quota of articles.

Lastly, consider this last phrase of Greenwald's article: "Whatever one thinks about the policies in question on the merits, it should be impossible to defend or justify the radical inconsistency between what he pretended to believe and what he's doing." Greenwald confirms his leap in logic when he says Obama "pretended to believe." Such an allegation clearly needs more evidence and is not sound.

[Jefferson23]

18. I agree this won't hurt Obama in 2012. The conversation about them,

their use and meaning was examined during the Bush years and should continue to be part of mainstream dialog today imo.

A significant pattern has emerged from Obama, what he campaigned on and reversed/altered; I believe this is
more evidence the behavior continues and worth noting. One could argue the motives/intent or lack there of, and not agree with Greenwald's
accusation a form of fraud has taken place, true. Yet, I for one am appreciative that he notices and documents the actions.

[LandR]

21. cheers

I agree the public needs to understand more about signing statements and the media has an important role in this process. My criticism of this article is that Greenwald could tone down the article and make it even more informative. As you mention, this article shows a broken campaign promise and how this could be a recurring pattern, which is a valuable insight, but I think Greenwald could have pointed this out without making claims that he cannot support. In making unsupportable claims, he puts the credibility of the entire article at risk. This is an area where the media needs to be not only as informative as possible, but also as neutral as possible.

[NorthCarolina]

10. Campaign Mode Obama vs the Real Obama....like night and day. nt

[Jefferson23]

25. Adding an opinion discussed back in 2007 .

TESTIMONY OF MICKEY EDWARDS
COMMITTEE ON THE JUDICIARY
UNITED STATES HOUSE OF REPRESENTATIVES
JANUARY 31, 2007

Mr. Chairman, Mr. Smith, Members of the Committee:
Thank you for inviting me. It is good to see so many old friends
here.

I think it's important to establish one very important point at the
outset. This is not really about presidential "signing statements" as
most of us have known them. Presidents typically accompany
their signing of legislation with some comments, written or
spoken, expressing an opinion about the bills they've just signed
into law.

The issue here is not whether or not Presidents have an
equal right to be heard, and it's not really about whether or not the
Courts should take a presidential opinion into account when
considering the intent of a law, although I would think that to be a
very iffy proposition and would hope the Courts would continue to
think so, too.

The question here is much more fundamental than those. The
question is whether or not the President of the United States is
above the law. Because the moment he signs the legislation that is
presented to him, it is not merely a proposal; it is the law, and it is
binding upon every citizen, whether a taxi driver, a street sweeper,
or the President of the United States, because when it comes to the
law, we are all equal and we are all equally bound.

The powers of the President are clearly delineated in the
Constitution. No President is required to approve of an act of
Congress. No President is required to sign an act of Congress into
law. He may sign it, making it law, but he may also refuse to sign
it, to veto it, to refuse to have anything to do with making it the
law.

But those are his only choices, sign it (and be bound by it) or
veto it, and hope his veto will not be overridden. The objection I
would put before you is not to the use of presidential "signing
statements" -- Presidents, like the rest of us, are free to say
whatever they want whenever they want -- but to assertions that
the President may choose whether or not to abide by the law.


Further, there is a view of the presidency, articulated by the current
holder of that office, which considers the entirety of the Executive
Branch of Government to be a single unit under the sole direction
of the President. According to this theory of the "unitary
executive", the legislative branch of government may not instruct
executive branch agencies in the performance of their duties.

Thus, when a President declares that he is not bound by the bills he
signs into law, he is saying, in effect, that none of the executive
agencies are bound, either. The Congress may require a federal
agency to report on some matter, but at best that requirement
would become simply a suggestion, and probably one that is not
taken too seriously.


in full: http://judiciary.house.gov/hearings/pdf/Edwards013107.pdf

[jonthebru]

30. Signing statements remain in effect

into following Administrations. (I think I am correct about that, if not, someone correct me.) There may be situations where a signing statement is a good thing, but it is a powerful weapon for evil and totalitarianism.
There again with the intransigence of the legislative clowns, a President may be forced to create signing statements simply to get things done or prevent bad things from occurring at that moment.
I trust the President, I am very glad I do not have that job.