White House Sliding Back on Signing Statements
The Obama Administration offers plausible (if still unsatisfactory) answers when asked to explain why most of the terror law problems left by its predecessor have not yet been fixed. For example, most reasonable people would agree that officials and lawyers at the White House and Justice Department are making progress in finally emptying the prison at Guantanamo Bay, Cuba of its terror suspects.
And it's looking more and more like we will soon see a criminal investigation into the interrogation practices of Central Intelligence Agency employees. The persistent leaks in Washington suggest that Attorney General Eric Holder wants to look only at whether any officials went beyond the liberal torture policies drafted and enabled by Bush officials like John Yoo, Jay Bybee, and Steven Bradbury. But even such a narrow inquiry would give us details we don't now know—and that's a good thing.
There is little positive the Obama Administration can plausibly say, however, in defense of its devolving policy on the use of "signing statements," the presidential challenges sometimes attached to legislation. By attaching White House legal analysis to a certain bill, by opining about its application to the executive branch, for example, presidents through a "signing statement" try to reserve or preserve for themselves certain powers under the new law—or simply declare that they are not bound by it.
These executive branch commentaries were rarely used for centuries even though they are clearly an effective weapon in the war between the branches. Just think about it. If you are president, why not just interpret acts of Congress yourself instead of waiting for the federal judiciary to interpret them for you? Sometimes, the pesky judges will rule against you and limit the powers of the White House. But you'll never rule against yourself, right? Signing statements thus are the formal equivalent of crossing your fingers behind your back when you promise your friend that you'll look after her cat.
Edwin Meese appreciated this simple truth about signing statements. As President Ronald Reagan's legal advisor and Attorney General, Meese and others in the early 1980s expanded the use of "signing statements" beyond what they had been before—cheap and easy ways to resolve minor disagreements between the legislative and executive branches. The uptick in the use of the statements continued through the Clinton years before culminating in the Bush Administration's infamous use of the statements to reserve for itself extraordinary (and, most experts believe, dubious) presidential powers.
When President Obama was a candidate he railed against the aggressive use of signing statements. When he became president, he pledged to use them narrowly. But now evidently the Obama White House has lost its way, receding back into the mists and myths created during the Bush Administration. The New York Times' Charlie Savage, who is to the signing statements story what Woodward and Bernstein were to Watergate, told us this past weekend that Mr. Obama "relaxed his criteria for what kinds of signing statements are appropriate," a move that has angered even some Democrats in Congress.
Savage cites as one example the recent passage of a bill that expanded assistance to the World Bank and Monetary Fund. When the Obama White House attached a signing statement declaring that the White House was not bound by five separate sections of the bill, the House of Representatives last month issued what Savage called a "bipartisan rebuke" by banning federal officials from using "federal money to disobey the restrictions" (that the White House had declared could be disobeyed).
Just a few weeks ago, two of the Democratic lions in the House, Barney Frank of Massachusetts and David Obey of Wisconsin, asked the Obama Administration in a letter to cool it with the statements. And, reports Savage, Sen. Chuck Grassley (R-Iowa) also has complained about the Administration's use of a signing statement to dissuade potential whistleblowers from coming forward and telling Congress of problems. That's a particularly slimy and cynical use of the statements.
The use of signing statements may have historical precedent. But their continued use and abuse by this White House cuts directly against the messages of transparency and change upon which Mr. Obama swept into office. If the President doesn't like the legislation he is signing then he shouldn't sign it. Or, if he must sign, he ought to do so and then find a way to challenge the provisions he finds dubious in our courts of law, the traditional arbiter of disputes between the other two branches. That's the sort of change we can believe in, isn't it?
