Presidential signing statements, revisited

Forced by the need to keep the Defense Department running, on Jan. 7, President Obama signed into law a spending bill with what the New York Times editorial page calls “a particularly harmful provision that bars spending to transfer detainees at Guantanamo Bay, Cuba, to the United States for trial.”

The President doesn’t like that provision at all. But he says he’s going to live with it, rather than defy it, as was the tactic frequently and shamelessly used by President George W. Bush. When Bush didn’t like a law passed by Congress, he routinely included a presidential signing statement along with his signature. The most famous of these was his declaration that he was not bound by the ban on torturing prisoners.

President Obama did attach a signing statement to the recent spending bill. In it, as is his right, he criticized the bill, but did not take the Bush approach of exempting himself from its provisions.

In his statement, President Obama called the Guantanamo ban:

…a dangerous and unprecedented challenge to the executive branch’s authority to decide when and where to prosecute detainees. It could undermine…counter-terrorism efforts and harm national security.

Despite my strong objection to these provisions, which my Administration has consistently opposed, I have signed this Act because of the importance of authorizing appropriations for, among other things, our military activities in 2011.

Nevertheless, my Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.

Wherever you stand on the Guantanamo issue, it’s reassuring to know that our President respects the rule of law.  A New York Times editorial published on Jan. 8 says, “Despite his objections, Mr. Obama did not say he would defy the law and try to transfer prisoners anyway.  That was the right position. As a candidate, he often objected to Mr. Bush’s cavalier use of signing statements to assert that his interpretation of the law trumped that of Congress and the courts.”

So, how does President Obama’s track record on signing statements actually compare to that of his predecessor? A helpful website, “Presidential Signing Statements” offers a compendium of these documents dating back to the beginning of the Bush administration in 2001. According to the website, since his inauguration in 2009, President Obama has issued 15 signing statements. Six of them fall into the category of “rhetorical” signing statements, which are primarily ceremonial, “praising or criticizing the law or lawmakers, or remarking on the importance of the issue addressed by the law.” Eight are constitutional signing statements, in which:

…a president will object to a provision of law by citing a provision of the Constitution, or by citing a Supreme Court ruling interpreting the Constitution, or by bare assertion (without citation to authority) that the law offends the Constitution or invades the power of the Executive. Or the president may announce that he will interpret the law to avoid constitutional difficulties that he perceives.

One of President Obama’s signing statements remarks an “inadvertent technical drafting error” in the affected legislation.

In his own first two years in office, President George W. Bush issued 58 signing statements. During his two terms in office, Bush issued  total of 161 signing statements, which challenged more than 1,100 provisions in bills passed by Congress.  In terms of the raw number of signing statements, the Bush administration was about par for the historical course. But in terms of the number of provisions challenged by these statements, Bush far surpassed previous presidents.

In CRS Report RL33667, the Congressional Research Service compared George W. Bush’s use of signing statements to the three previous administrations, reporting that:

34% of President Reagan’s signing statements raised constitutional objections

47% of President George H. W. Bush’s signing statements raised constitutional objections

18% of President Clinton’s signing statements raised constitutional objections

78% of President George W. Bush’s signing statements raised constitutional objections

President Obama’s record is a work in progress. He’d have to work hard to match the anti-democratic pace set by the Bush administration in defying the rule of law. The Bush precedent was certainly controversial, as well as unabashedly defiant and anger-producing among his detractors. It’s hard to imagine President Obama taking such a blatantly in-Congress’s-face approach. In early 2010, however, the Obama Administration added a wrinkle to the issue of signing statements when it declared that it was not necessary to issue new signing statements that reiterated constitutional objections already noted in other bills. Given the stated goals of the new 2011 Republican majority in the US House, the tough-to-overcome minority in the Senate, and President Obama’s penchant for peacemaking,  it will be interesting to observe how the Obama administration moves forward in this area.

About Gloria Shur Bilchik:
Gloria Shur Bilchik is a freelance writer and community volunteer in St. Louis, Missouri. She is the editor of Occasional Planet. She views the preservation of progressive values as vital to making the US a humane, livable place for her children and grandchildren.