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The Audacity of Signing Statements

As a candidate for President, Senator Barack Obama told NPR that “he might use signing statements to clarify his position on an ambiguous law, he would not abuse signing statements to undermine the will of Congress.”  President Obama yesterday used a signing statement on “dozens of provisions in a $410 billion government spending bill” recently passed by Congress.  Undoing many provisions of the Omnibus spending bill would seem to be an abuse of the process and is clearly an act undermining the will of Congress.  If the Obama Administration was unwilling to issue veto threats to force Congress to remove the supposedly unconstitutional provisions in the Omnibus spending bill, this act by President Obama is inconsistent with his campaign promise of “Change.”  

There are many provisions in the President’s signing statement and most students of government would agree that a signing statement is constitutional.  The Congress and the President have constitutional responsibilities and a signing statement is merely a President expressing constitutional reservations about a bill.  One provision of President Obama’s signing statement with regard to Whistleblowers will prevent transparency in government and will allow government officials to intimidate employees when they want to communicate with Members of Congress about illegal or improper activities on the part of the Obama Administration.

From the Wall Street Journal

Presidents have employed signing statements to reject provisions of a bill without vetoing the entire legislation. Democrats and some Republicans have complained that Mr. Bush abused such statements by declaring that he would ignore congressional intent on more than 1,200 sections of bills, easily a record. Mr. Obama has ordered a review of his predecessor’s signing statements and said he would rein in the practice.

“We’re having a repeat of what Democrats bitterly complained about under President Bush,” said Sen. Arlen Specter (R., Pa.), who drafted legislation to nullify Mr. Bush’s signing statements.

If a President believes that a bill is unconstitutional, that President should veto the legislation.  Merely ignoring the provisions of a bill passed by Congress without, at a minimum, a veto threat seems to undermine the President’s claim that the bill is objectionable because it violates separation of powers rights reserved to the Executive Branch. 

The Whistleblower provision in the Omnibus reads as follows:

Sec. 714. No part of any appropriation contained in this or any other Act shall be available for the payment of the salary of any officer or employee of the Federal Government, who
(1) prohibits or prevents, or attempts or threatens to prohibit or prevent, any other officer or employee of the Federal Government from having any direct oral or written communication or contact with any Member, committee, or subcommittee of the Congress in connection with any matter pertaining to the employment of such other officer or employee or pertaining to the department or agency of such other officer or employee in any way, irrespective of whether such communication or contact is at the initiative of such other officer or employee or in response to the request or inquiry of such Member, committee, or subcommittee; or  (2) removes, suspends from duty without pay, demotes, reduces in rank, seniority, status, pay, or performance or efficiency rating, denies promotion to, relocates, reassigns, transfers, disciplines, or discriminates in regard to any employment right, entitlement, or benefit, or any term or condition of employment of, any other officer or employee of the Federal Government, or attempts or threatens to commit any of the foregoing actions with respect to such other officer or employee, by reason of any communication or contact of such other officer or employee with any Member, committee, or subcommittee of the Congress as described in paragraph (1).

The Whistleblower provision seems to be a provision to merely prevent superiors from intimidating inferior officers from disclosing illegal or unethical activities on the part of the Administration.  Hat tip to Ed Whelan at NROnline for the text of the Obama signing statement

Obama Executive Authority to Control Communications with the Congress. Sections 714(1) and 714(2) in Division D prohibit the use of appropriations to pay the salary of any Federal officer or employee who interferes with or prohibits certain communications between Federal employees and Members of Congress. I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees’ communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.

The problem with this act as President is that Senator Obama wrote a constituent that “As most elementary school students can explain, Congress writes the laws and the Executive Branch must faithfully execute them. The President can veto a bill or sign it into law, but the Constitution does not grant him authority to determine when he can ignore those he signs.”  Good point Senator Obama. 

Caveat Emptor – I have pulled this from a web site, Kamchatka News, a post of a constituent letter from Senator Obama dated September 18, 2007.  This letter indicates that Senator Obama had a different opinion of signing statements than President Obama.

The Constitution is clear about the roles of the Legislative and Executive Branches. As most elementary school students can explain, Congress writes the laws and the Executive Branch must faithfully execute them. The President can veto a bill or sign it into law, but the Constitution does not grant him authority to determine when he can ignore those he signs.

Like you, I am concerned by the President’s use of signing statements as a means to ignore the law. This issue was first raised when President Bush asserted in a signing statement accompanying the torture ban that he could bypass the law if national security was at stake. Soon after, the President attached a signing statement to the PATRIOT Act reauthorization bill, claiming that the President can ignore the mandate that he report to Congress regarding the FBI’s compliance with search and seizure safeguards.

Last year, Senators Patrick Leahy (D-VT) and Arlen Specter (R-PA) introduced a bill that would prohibit any state or federal court from relying on or deferring to a presidential signing statement when determining the intent or meaning of the law. It would also provide both chambers of Congress with legal standing to challenge a Presidential signing statement and authorizes the courts to hear those cases.

The bottom line is that President Obama had options other than a signing statement that he refused to use before allowing this bill to come to his desk.  It seems that Senator Obama’s views on signing statements have evolved quite a bit.

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