President Obama's signing statement.

[Mr. Moto]

Many times on these boards the use of signing statements by President Bush has been criticized. This criticism would be most intense when he would declare a portion of a bill as an interference of his constitutional duties and would state his intention to enforce it a certain way or not at all.

Yesterday President Obama issued his second signing statement - and it is a doozy: (http://www.whitehouse.gov/the_press_office/Statement-from-the-President-on-the-signing-of-HR-1105/)

As I announced this past Monday, it is a legitimate constitutional function, and one that promotes the value of transparency, to indicate when a bill that is presented for Presidential signature includes provisions that are subject to well-founded constitutional objections. The Department of Justice has advised that a small number of provisions of the bill raise constitutional concerns.

* Foreign Affairs. Certain provisions of the bill, in titles I and IV of Division B, title IV of Division E, and title VII of Division H, would unduly interfere with my constitutional authority in the area of foreign affairs by effectively directing the Executive on how to proceed or not proceed in negotiations or discussions with international organizations and foreign governments. I will not treat these provisions as limiting my ability to negotiate and enter into agreements with foreign nations.

* United Nations Peacekeeping Missions. Section 7050 in Division H prohibits the use of certain funds for the use of the Armed Forces in United Nations peacekeeping missions under the command or operational control of a foreign national unless my military advisers have recommended to me that such involvement is in the national interests of the United States. This provision raises constitutional concerns by constraining my choice of particular persons to perform specific command functions in military missions, by conditioning the exercise of my authority as Commander in Chief on the recommendations of subordinates within the military chain of command, and by constraining my diplomatic negotiating authority. Accordingly, I will apply this provision consistent with my constitutional authority and responsibilities.

* 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.

* Legislative Aggrandizements (committee-approval requirements). Numerous provisions of the legislation purport to condition the authority of officers to spend or reallocate funds on the approval of congressional committees. These are impermissible forms of legislative aggrandizement in the execution of the laws other than by enactment of statutes. Therefore, although my Administration will notify the relevant committees before taking the specified actions, and will accord the recommendations of such committees all appropriate and serious consideration, spending decisions shall not be treated as dependent on the approval of congressional committees. Likewise, one other provision gives congressional committees the power to establish guidelines for funding costs associated with implementing security improvements to buildings. Executive officials shall treat such guidelines as advisory. Yet another provision requires the Secretary of the Treasury to accede to all requests of a Board of Trustees that contains congressional representatives. The Secretary shall treat such requests as nonbinding.

* Recommendations Clause Concerns. Several provisions of the Act (including sections 211 and 224(b) of title II of Division I, and section 713 in Division A), effectively purport to require me and other executive officers to submit budget requests to the Congress in particular forms. Because the Constitution gives the President the discretion to recommend only "such Measures as he shall judge necessary and expedient" (Article II, section 3 of the Constitution), the specified officers and I shall treat these directions as precatory.

So the question comes up - how were the Bush signing statements materially different from this? And if they weren't terribly different, shouldn't President Obama be criticized for this statement as well?

(Not by me, though - I generally thought the signing statements were defensible, and this one looks to be as well.)

[Hentor the Barbarian]

Could you flesh out your objections, er... since you don't object, I'm not sure how to characterize your position. So, could you just explain a bit more what makes this signing statement a "doozy"?

[Maeglin]

Could you flesh out your objections, er... since you don't object, I'm not sure how to characterize your position. So, could you just explain a bit more what makes this signing statement a "doozy"?

It's not. He said that this statement is in fact defensible. What I believe Mr Moto is looking for is a reason why what is good for the goose is not good for the gander.

[Little Nemo]

Based on what I'm seeing here, what Obama is doing is wrong. I heard that he's floated a similar policy about Executive Orders. The President is supposed to carry out the laws that are enacted by Congress.

As for how Bush's policy was materially different, Bush created this monster. He wasn't just acting on precedents set by previous administrations - he was blazing new trails in executive power. And now another President is following those trails.

[Mr. Moto]

The President is supposed to carry out the laws that are enacted by Congress.

Uh huh. What if those laws are plainly unconstitutional, like requiring the President to seek the approval of an appointed underling before committing our troops to peacekeeping missions? I'm sure you can see the problem here - the Constitution says the President is Commander-in-Chief, not his advisers.

[gonzomax]

I am not happy with the statements. I expected and hoped for something better.He has a long way to go before he becomes Bush.

[Richard Parker]

The difference is exactly the one Obama has pointed to in distinguishing his practice from his predecessor: Bush issued more signing statements than any President in history and on much less well-settled constitutional topics.

It is important to know a few things about signing statements. First, they fall into three main categories: rhetorical, constitutional, and ambiguity-resolving. The first category is irrelevant for our purposes. If the signing statement doesn't change the enforcement of the law, then nobody cares. The latter two can be more problematic. But let's set aside the ambiguity one for the time being. The fact is that the President has to interpret ambiguity in the law when enforcing it, that's his job. So even if he does it badly, or with political bias, that is what is supposed to happen in our Democracy. So let's focus on the category of constitutional objections to enforcing certain provisions.

On the critical constitutional category, Bush II issued more than any other President, and about twice the number of Clinton. The methodology of counting statement and categorizing by type is a little problematic because one statement might modify many different statutes, but by all accounts, Bush's were both more numerous and more dense (i.e. more provisions affected per statement. Granted, Bush had to deal with a lot more law-making in the constitutionally murky areas of separation of powers than most presidents because of 9/11. But that's why Obama's principle makes so much sense. Only use the signing statement on well-settled matters of law.

Bush did not so limit his statements. In 2005, for example, Congress passed the DTA, a law prohibiting the "cruel, inhuman, or degrading treatment or punishment" of anyone in U.S. custody. Bush's signing statement cited vague notions of the unitary executive to both restrict application of the law and also apply the restrictions on habeas corpus included in the law retroactively. Neither was an obvious or well-settled issue. Indeed, SCOTUS ultimately rejected both propositions in Hamdan.

I think signing statements are pretty dangerous. It would be much better, from pure principles, if the President would simply veto legislation that is too ambiguous or contains constitutional problems. But, of course, we cannot realistically operate a government that way. So signing statements are probably a necessary evil. But in my mind they should be used only when absolutely necessary and--in the case of constitutional issues--only when the President is on well-settled legal ground. It remains to be seen whether Obama will be able to live up to the principle he has set for himself.

[Ravenman]

The President is supposed to carry out the laws that are enacted by Congress.For the better part of eight years, Congress pretty much blindly did what the Executive Branch wanted it to do. I don't think the proper reaction is to subjugate the Executive Branch to everything the Legislative wants to do. ETA: In the end, either branch is fully capable of acting unconstitutionally, and we should be more concerned with whether a particular action or law is constitutional, not whether it causes controversy in the other branches.

The Constitution appears to anticipate that both branches will try to push their agenda (the whole ambition countering ambition thing). I think, in general, we are only worse off when one branch refuses to push back against the ambitions of the other.

[Hentor the Barbarian]

It's not. He said that this statement is in fact defensible. What I believe Mr Moto is looking for is a reason why what is good for the goose is not good for the gander.What are you talking about? In the OP, Mr. Moto specifically described this as "a doozy." That implies something about this particular signing statement. I'm curious what that might be. Perhaps Mr. Moto might answer this time.

[Peanut Gallery]

Allow me to be the hypocrite you can righteously skewer!

The biggest difference to me is that Obama actually has studied and taught Constitutional law, whereas Bush was just some average hick with connections. So if Obama sticks his nose into the technical details, I'm at least confident he understands the legal intricacies. I think Bush was more likely to amend laws due to his objections on a gut level (and I think he would proudly tell you this). This "doozy" dealing with something that conflicted with the president's actual authority is more reasonable.

In other words, it isn't the device of signing statements, it was Bush's particular use of them that was troubling. In fact, it was just everything about the man. Nope, no cites.

[MovieMogul]

The difference is exactly the one Obama has pointed to in distinguishing his practice from his predecessor: Bush issued more signing statements than any President in history and on much less well-settled constitutional topics.

It is important to know a few things about signing statements. First, they fall into three main categories: rhetorical, constitutional, and ambiguity-resolving. The first category is irrelevant for our purposes. If the signing statement doesn't change the enforcement of the law, then nobody cares. The latter two can be more problematic. But let's set aside the ambiguity one for the time being. The fact is that the President has to interpret ambiguity in the law when enforcing it, that's his job. So even if he does it badly, or with political bias, that is what is supposed to happen in our Democracy. So let's focus on the category of constitutional objections to enforcing certain provisions.

On the critical constitutional category, Bush II issued more than any other President, and about twice the number of Clinton. The methodology of counting statement and categorizing by type is a little problematic because one statement might modify many different statutes, but by all accounts, Bush's were both more numerous and more dense (i.e. more provisions affected per statement. Granted, Bush had to deal with a lot more law-making in the constitutionally murky areas of separation of powers than most presidents because of 9/11. But that's why Obama's principle makes so much sense. Only use the signing statement on well-settled matters of law.

Bush did not so limit his statements. In 2005, for example, Congress passed the DTA, a law prohibiting the "cruel, inhuman, or degrading treatment or punishment" of anyone in U.S. custody. Bush's signing statement cited vague notions of the unitary executive to both restrict application of the law and also apply the restrictions on habeas corpus included in the law retroactively. Neither was an obvious or well-settled issue. Indeed, SCOTUS ultimately rejected both propositions in Hamdan.

I think signing statements are pretty dangerous. It would be much better, from pure principles, if the President would simply veto legislation that is too ambiguous or contains constitutional problems. But, of course, we cannot realistically operate a government that way. So signing statements are probably a necessary evil. But in my mind they should be used only when absolutely necessary and--in the case of constitutional issues--only when the President is on well-settled legal ground. It remains to be seen whether Obama will be able to live up to the principle he has set for himself.What he said. Essentially, the OP doesn't tell the whole story--it wasn't just how Bush applied his signing statements (every POTUS did it), but it was the sheer volume and massive scale (http://www.commondreams.org/headlines07/0201-03.htm) which he applied something that was supposed to be used with a little more discretion:Bush has used signing statements to challenge 1,149 laws that were contained in 150 bills, according to data compiled by Christopher Kelley, a political science professor at Miami University in Ohio . By comparison, all previous presidents combined challenged about 600 total laws.This averaged to one law challenged every 2.5 days Bush was in office. Obama's been in office 50 days and can tally only 1 to his credit thus far.

Nobody ever claimed Obama wouldn't have any signing statements. He just promised he wouldn't abuse them the way his predecessor did. Nothing he's done thus far contradicts this promise.

[Fish]

I'm torn here, because on the one hand, nowhere does the Constitution give the President the authority to enforce only those laws which he agrees with; but it does require of him an oath to uphold the Constitution.

I would be happier about signing statements generally if there were an Amendment to the effect of "when the President feels Congress has required him to enforce a law that causes him to violate his Oath, he should submit his objections to the Supreme Court for review." Or something.

[Shodan]

IOKIADDI, of course.
it is a legitimate constitutional function, and one that promotes the value of transparency, to indicate when a bill that is presented for Presidential signature includes provisions that are subject to well-founded constitutional objections...

* 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.
This is apparently what he means by "transparency" - shutting down the whistle blowers.

Bush issued his first signing statement on March 20 (http://www.presidency.ucsb.edu/signingstatements.php?year=2001&Submit=DISPLAY). Obama beat him by a week.

Oh well. It isn't like we didn't know already that Obama was lying thru his teeth (http://www.youtube.com/watch?v=seAR1S1Mjkc) all along.

Regards,
Shodan

[Hentor the Barbarian]

I remain ready to be critical of this signing statement. So far, it appears that I should be because it is a "doozy," or because it was written seven days earlier in Obama's administration than Bush's first one. (I don't see enough meat in Shodan's claim of silencing whistleblowers to see that as what is going on.)

Since I didn't think Obama would issue no signing statements, I remain ready, but not yet committed, to express my displeasure with this signing statement. Help me over the hump!

[RickJay]

What are you talking about? In the OP, Mr. Moto specifically described this as "a doozy." That implies something about this particular signing statement. I'm curious what that might be. Perhaps Mr. Moto might answer this time.

Maybe your understanding of the word is difference from mine, but I've always assumed "a doozy" means "something of extraordinary impression, impact, or significance." It doesn't necessarily convey disapproval. If my wife gets a surprisingly huge bonus from work I might say "Wow, that bonus is quite a doozy," but it doesn't mean I don't want the money.

[RickJay]

Oh well. It isn't like we didn't know already that Obama was lying thru his teeth (http://www.youtube.com/watch?v=seAR1S1Mjkc) all along.
Quote from that link: "We're not gonna use signing statements as a way to do an end run around Congress." Do you feel the example cited in OP is meant to subvert the intentions of Congress?

He does not say in your link that he's not going to use signing statements at all. They may in fact serve a legitimate function.

This isn't necessarily a yes-or-no issue; it's perfectly reasonable to argue that the President using signing statements to clarify how he plans to enforce the law is fine but that but that taking signing statements so far as to defy the law is unacceptable.

[mswas]

It's not. He said that this statement is in fact defensible. What I believe Mr Moto is looking for is a reason why what is good for the goose is not good for the gander.

Well it would really seem pretty simple to me. Is the signing statement constitutionally defensible or not? If the Bush signing statements were not, then it's not the same thing.

[Hentor the Barbarian]

Maybe your understanding of the word is difference from mine, but I've always assumed "a doozy" means "something of extraordinary impression, impact, or significance." It doesn't necessarily convey disapproval. If my wife gets a surprisingly huge bonus from work I might say "Wow, that bonus is quite a doozy," but it doesn't mean I don't want the money.I don't think I've said that "doozy" means disapproval. I want to know what makes this signing statement "something of extraordinary impression, impact or significance."

[Sinaijon]

For those of you that are amazed at the quantity of Bush's signing statements, you should consider this one:

Today I have signed into law H.R. 1696,a bill to expedite the construction of the World War II memorial in the District of Columbia. It is indeed fitting that this measure becomes law on Memorial Day. This legislation will allow the Nation to express the appreciation due the World War II generation for their selfless sacrifices that preserved the freedoms we all enjoy. I commend the Congress for a truly bipartisan effort to expedite construction of the memorial. Now that debate over the site and basic design is concluded, the time has come for all concerned with the creation of the memorial to act with the same determination and sense of common purpose so wonderfully displayed by those we honor. We must get the job done, so that those who served are able to see the Nation’s permanent expression of remembrance and thanks.


IOW, he often just commentated[sic] on the bill in question, often just underscoring his support for the bill. He wasn't always trying to usurp constitutional authority from Congress.

A complete list of his signing statements is here;
http://www.coherentbabble.com/listGWBall.htm

[Mr. Moto]

The thing is, most of the criticism against Bush I've seen here regarding this issue centered around signing statements in general (or even in the aggregate) and not particular ones. So even if Obama does engage in the same practice but does it less, the people who called Bush out for a supposedly unconstitutional practice should only be partially satisfied, right? Or perhaps they ought to explain why their previous criticism might have been too far reaching.

Now, of course individual statements can be debated - but I haven't seen much of that here. Only one poster has brought up a particular set of signing statements. I'd be happy to discuss them individually, but dismissing them as always bad seems counterproductive to me.

For better or worse, since the Reagan Administration signing statements have been used far more often by presidents of both parties. And if they are evil they likely are a necessary one in an era of omnibus catchall legislation - and far less onerous than a line item veto.

[ElvisL1ves]

Is the signing statement constitutionally defensible or not? One doesn't have any significance in either the constitution or the law by itself. An administration's refusal to comply with a constitutional law does, though. The question is left open as to whether the law not being complied with is constitutional.

The reaction to Bush's blanket use of the things was largely because of his stated reason so often being that "unitary executive" nonsense, which he claimed in effect gave him absolute authority to do whatever he thought fit in the cause of national defense.

Would anyone like to assert that Obama's explanation of his claims of the unconstitutionality of those certain provisions is equivalent to that? Mr. Moto pretty clearly thinks this "doozy" is, although without an analysis any deeper than tu quoque.

[Ravenman]

One doesn't have any significance in either the constitution or the law by itself. An administration's refusal to comply with a constitutional law does, though. The question is left open as to whether the law not being complied with is constitutional.Do you think it is constitutional for Congress to direct the president to engage in negotiations with another country on a particular subject? Obama and Bush seem to agree that that would be an unconstitutional law.

[Richard Parker]

IOW, he often just commentated[sic] on the bill in question, often just underscoring his support for the bill. He wasn't always trying to usurp constitutional authority from Congress.

That's true. But as I noted, if you look just at the constitutional conflict statements, he signed almost twice the number that Clinton did. There's a great study on this (which is pretty pro-Bush, actually, but reports the numbers objectively), but it isn't available for free. If you have access to law reviews, this is the citation: Curtis A. Bradley & Eric A. Posner, Presidential Signing Statements and Executive Power, 23 Const. Commentary 307 (2006).

Bush's count (up to 2006) was 104 constitutional signing statements, while Clinton had 64 in total. By contrast, Bush only signed 25 "rhetorical" statements, while Clinton signed 311.

So, your point is actually exactly the opposite of what you think it is. Bush not only had more total aggregate signing statements, but a much higher percentage of them were of the constitutional conflict kind than the rhetorical kind.

[Hamlet]

Quote from that link: "We're not gonna use signing statements as a way to do an end run around Congress." Do you feel the example cited in OP is meant to subvert the intentions of Congress?That's what I was wondering too. The giant chasm of difference between invoking executive privilege or protecting classified information to "shutting down whistleblowers" is one Shodan apparently doesn't see.

It's like using signing statements at all. It can be fine, it can not be fine, depending on what they are being used to do. If it is used to properly invoke executive privilege or protect classified information, it's fine. If it's used to hide evidence of wrongdoing, it's not. Same tool. Different jobs. One is proper, one isn't. It's a tough concept to grasp for some, apparently.

I'll repeat what I said about signing statements when Bush used them (insert comment about poor search functionality here): "Personally, I find nothing inherently wrong with signing statements. I'm NOT much concerned with what any President says, I'm much more interested in what they do."

Anyone who is actually interested in signing statements, their history, and use by Bush, can read the ABA's report on signing statements (http://www.abanet.org/op/signingstatements/aba_final_signing_statements_recommendation-report_7-24-06.pdf). It's a good introduction, and includes analysis and recommendations regarding the difference between positive and negatives of signing statements.

[Richard Parker]

One more note from the article I mentioned above:


Bush has clearly departed from the norm by frequently issuing challenges to numerous statutory provisions within a single signing statement. As of June 2006, Bush had challenged more than 800 statutory provisions, which is much higher than any prior president. On average, Bush challenged 162 statutory provisions per year; by contrast Clinton challenged 18 and G.H.W. Bush challenged 42. A typical Bush signing statement that is not purely rhetorical might challenge a half-dozen or more statutory provisions; other presidents would typically challenge only one or two. (emphasis added)

[Sinaijon]

The reaction to Bush's blanket use of the things was largely because of his stated reason so often being that "unitary executive" nonsense, which he claimed in effect gave him absolute authority to do whatever he thought fit in the cause of national defense.

Well, let's look at this portion of Obama's signing statement:

* Legislative Aggrandizements (committee-approval requirements). Numerous provisions of the legislation purport to condition the authority of officers to spend or reallocate funds on the approval of congressional committees. These are impermissible forms of legislative aggrandizement in the execution of the laws other than by enactment of statutes. Therefore, although my Administration will notify the relevant committees before taking the specified actions, and will accord the recommendations of such committees all appropriate and serious consideration, spending decisions shall not be treated as dependent on the approval of congressional committees. Likewise, one other provision gives congressional committees the power to establish guidelines for funding costs associated with implementing security improvements to buildings. Executive officials shall treat such guidelines as advisory. Yet another provision requires the Secretary of the Treasury to accede to all requests of a Board of Trustees that contains congressional representatives. The Secretary shall treat such requests as nonbinding.


How is this not 'unitary executive nonsense'?

[Hamlet]

I'd be happy to discuss them individually, but dismissing them as always bad seems counterproductive to me.Might I suggest that, if a discussion of this particularities of this signing statement were the true purpose of your OP, it might have been a good idea for you to start out expressing your actual view on them. Because I took the OP as only a slightly more intelligently phrased version of Shodan's IOKIADDI post.

[Richard Parker]

How is this not 'unitary executive nonsense'?

This is like pointing to a giraffe and asking how it is not a lion. It is just isn't. He is citing a principle established in US law since INS v. Chada. Probably earlier. The unitary executive is primarily about congressional interference with intra-executive decision-making; the Chada principle is primarily about Congress' ability to retain executive-style power in the form of Congressional approval of enforcement actions and legislative vetoes. They are related insofar as both are vaguely about separation of powers, but I think that's about as far as it goes.

[Sinaijon]

So, your point is actually exactly the opposite of what you think it is.

No, my point is exactly what I stated. You can't use total numbers (like the 1100 floated earlier as evidence of 'massive scale') to make a judgement on signing statements. You broke it down quite nicely in support of that.

I agree 100% with you that if you want to compare presidents, you need to examine the content of the statement, and not just use sheer numbers.

[Richard Parker]

No, my point is exactly what I stated.

I meant only that breaking it down into sub-categories makes Bush look worse, not better, since a higher proportion of his statements were of the controversial non-rhetorical kind.

[Little Nemo]

Uh huh. What if those laws are plainly unconstitutional, like requiring the President to seek the approval of an appointed underling before committing our troops to peacekeeping missions? I'm sure you can see the problem here - the Constitution says the President is Commander-in-Chief, not his advisers.Being Commander-in-Chief doesn't give the President the right to send troops wherever he wants. Article One, Section Eight: The Congress shall have power to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; to raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces; to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; to provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress. Article Two, Section Two: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States. That's pretty clear: Congress has the power to decide if troops are sent on a peace-keeping mission (or a military mission) not the President. Once Congress has decided, the President executes the mission.

[Martin Hyde]

Allow me to be the hypocrite you can righteously skewer!

The biggest difference to me is that Obama actually has studied and taught Constitutional law, whereas Bush was just some average hick with connections. So if Obama sticks his nose into the technical details, I'm at least confident he understands the legal intricacies. I think Bush was more likely to amend laws due to his objections on a gut level (and I think he would proudly tell you this). This "doozy" dealing with something that conflicted with the president's actual authority is more reasonable.

In other words, it isn't the device of signing statements, it was Bush's particular use of them that was troubling. In fact, it was just everything about the man. Nope, no cites.

As a lawyer who also taught Con-Law courses that puts Obama about on part with any of a dozen advisers who helped Bush make decisions while President. The job of President is big enough that I don't really think any one individuals particular abilities means his administration is more or less likely to be taking the best course of action.

For example no one would doubt Eisenhower's military leadership ability, that doesn't mean that by extension any military decision Eisenhower made would have to be viewed as superior to any military decision that say, Truman or Roosevelt (the latter) made. Both Truman and Roosevelt had a lot of advisers who were just as well informed and qualified, and when Eisenhower was President his scope of decision making was so broad he would never be able to fully devote his attention to all the details of a military issue like he could have when he was actually a General.

Essentially, just because someone taught constitutional law doesn't mean we have to assume from the start they are going to make superior decisions in terms of constitutionality.

Shit, some of the same men that helped draft the Constitution itself were later part of the Congress that passed the Sedition Act--one of the most clearly unconstitutional laws ever passed in this country.

[Anduril]

Allow me to be the hypocrite you can righteously skewer!

The biggest difference to me is that Obama actually has studied and taught Constitutional law, whereas Bush was just some average hick with connections. So if Obama sticks his nose into the technical details, I'm at least confident he understands the legal intricacies. I think Bush was more likely to amend laws due to his objections on a gut level (and I think he would proudly tell you this). This "doozy" dealing with something that conflicted with the president's actual authority is more reasonable.

In other words, it isn't the device of signing statements, it was Bush's particular use of them that was troubling. In fact, it was just everything about the man. Nope, no cites.

Meh. Obama is no expert in Consitutional law. Bush's legal adviser would have better qualifications than Obama. Being that Obama was NOT a success as a lawyer, we cannot claim with any confidence how much more (or less) capable he is at understanding Consitutional Law than Bush and his legal advisers.

[Hamlet]

This is like pointing to a giraffe and asking how it is not a lion. It is just isn't. He is citing a principle established in US law since INS v. Chada. Probably earlier. The unitary executive is primarily about congressional interference with intra-executive decision-making; the Chada principle is primarily about Congress' ability to retain executive-style power in the form of Congressional approval of enforcement actions and legislative vetoes. They are related insofar as both are vaguely about separation of powers, but I think that's about as far as it goes.I'll also point out that, despite Chadha, the legislature has still passed legislation that includes these so called types of "legislative vetoes". And, in times prior, Reagan, Bush I, and Clinton also all included signing statements saying almost the same thing Obama's did, that they would not be bound by the provisions that exercise undue power over executive discretion in spending.

"Despite Chadha and its progeny's prohibition on legislative vetoes, Congress continued to include them in legislation, and Presidents continued to sign them. [FN136] One of the foremost scholars [FN137] in the field claims, from the time of the Chadha decision on June 23, 1983, through 1999, more than four hundred new vetoes were enacted. [FN138] At times, Presidents Reagan, Bush (I), and Clinton balked at the unconstitutionality of such provisions but nevertheless signed them into law. [FN139]" From Anthony M. Bottenfield, CONGRESSIONAL CREATIVITY: THE POST-CHADHA STRUGGLE FOR AGENCY CONTROL IN THE ERA OF PRESIDENTIAL SIGNING STATEMENTS, 112 Penn St. L. Rev. 1125 (2008).

[Richard Parker]

Chadha. Like Gandhi. I always forget the H.

[Hamlet]

Chadha. Like Gandhi. I always forget the H.And I always add an extra H to make it Ghandhi. Ih havhe nho ideah whyh I doh thath.

[FinnAgain]

Meh. Obama is no expert in Consitutional law.

What?
As a professor he taught constitutional law.

[Shodan]

Quote from that link: "We're not gonna use signing statements as a way to do an end run around Congress." Do you feel the example cited in OP is meant to subvert the intentions of Congress?
Considering that one of the clauses of the signing statement refers to efforts to "Control Communications with the Congress" and another refers to attempts "to spend or reallocate funds on the approval of congressional committees", it sure sounds that way to me.

I presume the bills that originated in Congress, were voted on in Congress, and passed thru Congress on the way to Obama's desk, therefore expressed the intentions of Congress. Obama doesn't like that, so he is using a signing statement to get around it.

Unless, as I suspect, the phrase "do an end run around Congress" has no definite meaning now that Obama has been elected.

Regards,
Shodan

[Hamlet]

Unless, as I suspect, the phrase "do an end run around Congress" has no definite meaning now that Obama has been elected.

Regards,
ShodanSince the search function works poorly, I only did a couple searches, but maybe you can help me out and point out the posts where you condemned Bush for doing an "end run around Congress", with his signing statements. I just couldn't find them, because I'm sure they're there. Unless "do an end run around Congress" only came into being Jan. 21, 2009.

What I could find, however, was you saying: "President Clinton has already submitted signing statements. And yet the Republic survived. Of course, if Bush does the same, the Usual Suspects hear the thundering jackboots of facism." Nothing about an "end run around Congress."

Do you see how pointless this game you constantly play is?

Believe it or not, I think you and I agree on signing statements. As I said: "It's like using signing statements at all. It can be fine, it can not be fine, depending on what they are being used to do. If it is used to properly invoke executive privilege or protect classified information, it's fine. If it's used to hide evidence of wrongdoing, it's not. Same tool. Different jobs." I get the feeling that you, if you gave yourself a chance to actually get beyond stupid partisan hackery, would agree, especially because you previously posted this: "I will probably take the same attitude towards a Democratic President using signing statements as you do for Slick Willie using them. I'll support him (or her) when right, but not otherwise." But rather than engage in that debate, you come in with your typical bullshit. Color me shocked.

[Shodan]

Since the search function works poorly, I only did a couple searches, but maybe you can help me out and point out the posts where you condemned Bush for doing an "end run around Congress", with his signing statements. I just couldn't find them, because I'm sure they're there.
Sure, no problem. All that you need to do is provide a cite from before the 2000 elections where Bush said he would not use signing statements, and I will condemn him for breaking that promise just as I have done for Obama.
What I could find, however, was you saying: "President Clinton has already submitted signing statements. And yet the Republic survived. Of course, if Bush does the same, the Usual Suspects hear the thundering jackboots of facism." Nothing about an "end run around Congress."

Do you see how pointless this game you constantly play is? No, because it is very far from pointless.

Bush uses signing statements, and y'all hear the thundering jackboots, just exactly as I said. Obama does the same, and suddenly it is just fine to use signing statements.

Believe it or not, I think you and I agree on signing statements. Well, that's fine. The one you need to figure out if you agree with him or not isn't me; it's Obama. Back during the campaign, signing statements were wrong and terrible and he wasn't going to sign them. Now two months into his tenure he is doing exactly what he promised he wasn't going to do.

Same thing with Obama's nonsense about earmarks. Six months ago or so, earmarks were awful, and he promised he wouldn't allow them. Then he got elected, and the very first bill he signs has thousands of them, including ones his own fucking staff put in there.

Bush --> inherits balanced budget (and recession). --> creates deficit. Bad Bush.

Obama --> inherits deficit (and recession) --> increases deficit by a fuck of a lot more --> Obama is brilliantperfectnice.

Bush --> uses signing statements --> subverting Constitution --> Bad Bush.

Obama --> uses signing statements --> THAT'S DIFFERENT!!!

:D

Interesting that you do not choose to take what you characterize as a "well-deserved potshot" (http://boards.straightdope.com/sdmb/showpost.php?p=7361649&postcount=20) at the current President for using signing statements, nor do you automatically assume that signing statements are good indications of his intent to violate the law (http://boards.straightdope.com/sdmb/showpost.php?p=7362093&postcount=35).

Like I said, IOKIADDI.

Regards,
Shodan

[Anduril]

What?
As a professor he taught constitutional law.


No, he didn't. He taught constitutional law (for freshmen law students, IIRC) for a brief period as an INSTRUCTOR and NOT as a PROFESSOR. He has knowledge of consitutional law, definitely. But, he's no expert. He hasn't done ANY significant thing as a lawyer. He's an unpublished editor (very unusual) and he's won NO significant cases.

[ElvisL1ves]

Do you think it is constitutional for Congress to direct the president to engage in negotiations with another country on a particular subject? Obama and Bush seem to agree that that would be an unconstitutional law.
Given the Constitution's placing foreign policy in the hands of the Executive, it looks that way to me too. But that's a side point, and one the Supremes would have to decide if the other two branches couldn't work it out. The checks-'n'-balances system, and the inevitable tensions that it causes, and their resolution, is healthy for democracy IMHO. The declaration of the newly-found existence of ambiguities, or the invention of arrant bullshit like the "unitary executive" theory Bush so loved, is not quite so healthy.

How is this not 'unitary executive nonsense'?By not having any basis, stated or otherwise, in a claim to virtually-absolute executive power in the cause of national defense. Haven't you come across the "theory" before?

[ElvisL1ves]

an INSTRUCTOR and NOT as a PROFESSOR. He has knowledge of consitutional law, definitely. But, he's no expert.How knowledgeable about a subject does one have to be to teach it at the U. of Chi Law School? Are their hiring standards all that low?

He hasn't done ANY significant thing as a lawyer. He's an unpublished editor (very unusual) and he's won NO significant cases.Even if true, what difference does that make?

[Anduril]

How knowledgeable about a subject does one have to be to teach it at the U. of Chi Law School? Are their hiring standards all that low?

Even if true, what difference does that make?

I was responding to a post that cites Obama's competence in the field of constitutional law as a reason for him being a better judge of when to use signing statements. I responded that his competence in the field is NOT demonstrable and that Bush's legal advisers would be more competent than he is. I then elaborated that he is NOT a Professor of Law as most Obama supporters claim to support their view that he is uber-intelligent and that he is an UNPUBLISHED Editor for the Harvard Law Review. His achievements as a legal practicioner cannot be used to support the contention that he is intelligent because he has NO ACHIEVEMENT in the field. For that matter, his achievements as a community organizer and state legislator CANNOT be used in this manner as well. He doesn't have ANY ACHIEVEMENTS in the field beyond those that was gifted to him.

[Richard Parker]

If you KEEP pressing Anduril s/he will EXPLODE in a fury of pent up primary RAGE. As much as I would like to SEE that, it's a bit of a HIJACK.

I'm pretty sure we can all agree that neither Bush nor Obama is sitting in the Oval Office doing legal research. They are given opinions drafted by their legal advisers, who are generally of high quality. John Yoo, for all his faults, was a Supreme Court clerk (though, according to Anduril, Yoo's lack of important cases means we don't know if he's a smart lawyer). I imagine we can also agree that the President makes the final decision on the matter, and the one who was the leader of the Harvard Law Review is making more informed decisions than the one with the business degree.

[Piker]

No, he didn't. He taught constitutional law (for freshmen law students, IIRC) for a brief period as an INSTRUCTOR and NOT as a PROFESSOR. He has knowledge of consitutional law, definitely. But, he's no expert. He hasn't done ANY significant thing as a lawyer. He's an unpublished editor (very unusual) and he's won NO significant cases.

Your use of "freshman" to refer to 1L law students indicates that you know pretty little about the legal academy. He taught constitutional law at the University of friggin' Chicago. One of the toughest subjects at one of the most renowned law schools in the country. It takes a certain type of ignorance to think that doesn't make one an expert in constitutional law.

-Piker

[BrainGlutton]

*sigh* So it goes . . . (http://boards.straightdope.com/sdmb/showthread.php?t=455418)

Yet even if the victor of the 2008 presidential eleciton declines to make use of the aggrandized executive power established by the Bush-Cheney administration, in the long run such forbearance might make little difference. The accretion of presidential power, history has shown, often acts like a one-way rachet: It can be increased far more easily than it can be reduced. The annals of American history are now filled with precedents in which the White House has claimed the power to bypass laws and then acted upon that claim, especially in matters of national security. The zone of secrecy surrounding the executive branch has been dramatically widened. The Supreme Court has been sharply tilted [by Roberts and Alito, who had pro-Unitary-Executive records before their appointment, as discussed in earlier chapters] toward a sympathetic view of executive power, and the White House's political control of the permanent government [the professional career bureaucracy] has been dramatically expanded. The federal statute books are now riddled with asterisks, thanks to the explosive growth of signing statements, which have made it clear that a president can routinely sign legislation while declaring himself free to ignore sections that restrain his own powers -- a dramatic change that has the potential to take away from Congress its constitutional right to override a president's decision to reject a new law.

The expansive presidential powers claimed and exercised by the Bush-Cheney White House are now an immutable part of American history -- not controversies, but facts. The importance of such precedents is difficult to overstate. As Supreme Court justice Robert Jackson once warned, any new claim of executive power, once validated into precedent, "lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes."

Sooner or later, there will always be another urgent need.

-- Charlie Savage in Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy (http://www.amazon.com/Takeover-Imperial-Presidency-Subversion-Democracy/dp/0316118044)

The Obama Administration still has a chance to distinguish itself from W's in this regard by not dragging its heels over any potential court challenge. Let the Supreme Court clearly define the outer limits of what can and can't be done by signing statements -- at present a highly indeterminate question, and one the Bush Admin was at pains to keep from ever coming before the Court.

[Anduril]

John Yoo, for all his faults, was a Supreme Court clerk (though, according to Anduril, Yoo's lack of important cases and publications means we don't know if he's a smart lawyer).

If you will evaluate John Yoo's competence on the basis of the cases he's handled and he's won NOTHING, then he's not that smart, isn't he? But he's also a Supreme Court clerk, which argues for a lot of competence. Can we say anything similar about Obama?? Of course, not.


I imagine we can also agree that the President makes the final decision on the matter, and the one who was the leader of the Harvard Law Review is making more informed decisions than the one with the business degree

You're absolutely right. But how likely would it be that the one with the business degree would argue against a trusted legal adviser on questions of law? Unless the legal advisers can't be trusted then the fact that the President is the leader of the Harvard Law Review is not germane. The legal advisers would have demonstrable competence in the field - something that Obama lacks.

[Anduril]

Your use of "freshman" to refer to 1L law students indicates that you know pretty little about the legal academy. He taught constitutional law at the University of friggin' Chicago. One of the toughest subjects at one of the most renowned law schools in the country. It takes a certain type of ignorance to think that doesn't make one an expert in constitutional law.

-Piker


IT takes a certain class of fanboyism to call that expertise. He is a friggin lecturer for crying out loud.

[Mr. Moto]

Let's not make too much of this particular point. It is true that Bush relied on lawyers in the White House and Justice Department to determine when signing statements would be appropriate - and lookie here, Barack Obama is similarly relying on expertise there as well. See the first paragraph of the statement I quoted in the OP.

[BrainGlutton]

IT takes a certain class of fanboyism to call that expertise. He is a friggin lecturer for crying out loud.

Actually, those are considered the experts in Con-Law, more so than lawyers who actually argue constitutional issues before the SCOTUS.

[FinnAgain]

No, he didn't. He taught constitutional law (for freshmen law students, IIRC) for a brief period as an INSTRUCTOR and NOT as a PROFESSOR.

So many things are wrong with your statements. Let's start at the beginning. Someone who teaches his own class of students, especially in a graduate program, is their professor. Furthermore, your claim is simply wrong. And not just wrong, but egregiously wrong in several particulars.
He was a professor, and calling 12 years a "brief" period is wonky.

The Law School has received many media requests about Barack Obama, especially about his status as "Senior Lecturer." From 1992 until his election to the U.S. Senate in 2004, Barack Obama served as a professor in the Law School. He was a Lecturer from 1992 to 1996. He was a Senior Lecturer from 1996 to 2004, during which time he taught three courses per year. Senior Lecturers are considered to be members of the Law School faculty and are regarded as professors, although not full-time or tenure-track. The title of Senior Lecturer is distinct from the title of Lecturer, which signifies adjunct status. Like Obama, each of the Law School's Senior Lecturers have high-demand careers in politics or public service, which prevent full-time teaching. Several times during his 12 years as a professor in the Law School, Obama was invited to join the faculty in a full-time tenure-track position, but he declined. (http://www.law.uchicago.edu/media/index.html)

Second, what's your point in dropping a red herring? Whether or not he taught first year students is immaterial to the question of whether or not he had the ability to teach his subject to law students. What, you think that the profs who take first year classes aren't as competent as those who teach third year?


He hasn't done ANY significant thing as a lawyer.

Put the goalposts down and back away slowly.
You can't just switch, in mid argument, from a claim that he doesn't have expertise to one that he hasn't put that expertise into practice.
And, of course, the University of Chicago would disagree with your claim that their professors aren't experts.

The Law School is happy to work with the media to provide access to our faculty members, who are experts on myriad subjects (http://www.law.uchicago.edu/media/index.html)

[Piker]

This false equalization by conservatives was predictable, and is counterproductive. This is the timeline of the presidential signing statements issue:

1) The first 200-some odd years of our history, where presidents often use signing statements to comment on policy or reserve the powers of the Presidency on non-controversial issues. Reagan AG Meese eventually gets Westlaw and Lexis to publish signing statements as part of a Public Law's legislative history. No one notices.

2) The Bush Administration begins to flex their signing statement muscle, using the procedure to make reservations about presidential power that are quite controversial and in ways to avoid taking political hits for these controversial stances. For example:

Congress finally passes the McCain Amendment (in the DTA), committing our country to the off-the-wall notion that we will not torture prisoners of war. Bush holds a press conference and invites all the key sponsors of the bill to the oval office for a signing party. The media documents Bush's signing the bill into law. He scores political points. A couple days later, the world finds out about the Bush signing statement, that not only reserved controversial and unsettled presidential powers, but completely eviscerated the bill that he just signed and took some of the credit for. Political duplicity.

3) Liberals (defined as people who are against torture, i.e. the Western World) hear this and say "Hey! The President can't sign a law and use a signing statement to make an end-around the will of Congress!"

4) Apparatchiks for the Administration respond "You're against signing statements? Why, Jefferson used signing statements! Silly librals!"

5) Same people lie in wait, anticipating the first ho-hum, run-of-the-mill signing statement by the next Democratic President, ready to accuse liberals of hypocrisy after having moved the goalpost so far that they seem to forgot what the actual issue with Bush's signing statements was.

6) President Obama signs the aforementioned bill with an accompanying signing statement. The statement makes the uncontroversial claims that Congress cannot control in dictating how to proceed in negotiations with foreign governments, and that any inclusion of a legislative veto is unconstitutional. This latter point has been clear since Chadha defended the suspension of his deportation in the Supreme Court twenty-five years ago. Anduril will be happy to hear that this case is so central to any course of constitutional law that I read it in my first month of being a "freshman" in law school.

7) This thread is posted, and the Hate Obama First folks "pounce" on this "opportunity" to "embarrass" the Administration. Of course, this situation is so different from why signing statements were controversial in the first place that the thread unravels into a mess of hijacks that include whether the Editor of the Harvard Law Review and lecturer of constitutional law at the University of Chicago knows anything about the Constitution.

It doesn't matter though, because just creating the thread and sparking a debate about this issue, no matter how ridiculous, creates the appearance of false equalization. Mission accomplished.

[Piker]

IT takes a certain class of fanboyism to call that expertise. He is a friggin lecturer for crying out loud.

I don't understand your perjoritive use of "lecturer". He lectured, on the Constitution, probably for about two hours at a time, for a dozen years, to students who paid big bucks and took out big loans to hear those lectures. It takes a certain class of willful ignorance to not call that expertise.

-Piker

[Hamlet]

Sure, no problem. All that you need to do is provide a cite from before the 2000 elections where Bush said he would not use signing statements, and I will condemn him for breaking that promise just as I have done for Obama.""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," Obama answered. But, he added: "No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives." Cite (http://www.washingtonpost.com/wp-dyn/content/article/2008/02/24/AR2008022401995.html). Now, if the entirety of your point was that you think Obama lied at one rally by not expanding on his view of the proper use of signing statements as he did elsewhere, have at it.

But if you want to be a big boy and debate the actual issues in the OP, let me know.
Interesting that you do not choose to take what you characterize as a "well-deserved potshot" (http://boards.straightdope.com/sdmb/showpost.php?p=7361649&postcount=20) at the current President for using signing statements, nor do you automatically assume that signing statements are good indications of his intent to violate the law (http://boards.straightdope.com/sdmb/showpost.php?p=7362093&postcount=35).Read them again. The "well deserved potshot" was not over, as you falsely state, Bush's use of all signing statements, but Bush's signing statement about torture, and his view of judicial enforcement. It should have been fairly obvious, because in the very same post, I linked to two separate discussions of the proper and improper use of signing statements. And by obvious I mean to anyone objective. And in your second link, I made no such assumption, and I even provided the exact issue I had. Although in almost every thread I deal with you, I ask this, I'll still do it again: stop misrepresenting my posts.

[Stratocaster]

Piker, why is the issue different under Obama? What makes these observations "uncontroversial" to you? They certainly are to the legislators who disagreed.

Bush either had the right to use a signing statement for the torture legislation, or he didn't. The very exercise is one that means the president, as Obama does, indicates he will carry out the law this far and no further. What makes something a controversial, end-run evisceration other than personal opinion, if it's appropriate in some situations but not others?

Hamlet, I'd pose the same question to you (or to the president, were he here). What besides ideology and personal opinion render Bush's use of this practice beyond the pale, while Obama's is A-okay? Why can't Obama's statments be interpreted as changing the intention of the legislators?

Serious question, because the nuance is lost on me, honestly.

ETA: Can we concede Obama is an expert? What's the difference? Why does that matter in this debate? Bush had expert counsel, so does Obama.

[Anduril]

So many things are wrong with your statements. Let's start at the beginning. Someone who teaches his own class of students, especially in a graduate program, is their professor. Furthermore, your claim is simply wrong. And not just wrong, but egregiously wrong in several particulars.
He was a professor, and calling 12 years a "brief" period is wonky.

[/url]

He is a Senior Lecturer and NOT a professor.

http://www.factcheck.org/askfactcheck/was_barack_obama_really_a_constitutional_law.html


Second, what's your point in dropping a red herring? Whether or not he taught first year students is immaterial to the question of whether or not he had the ability to teach his subject to law students. What, you think that the profs who take first year classes aren't as competent as those who teach third year?

Well, normally, in any University, the classes in the higher years are taught by the more competent teachers.


Put the goalposts down and back away slowly.
You can't just switch, in mid argument, from a claim that he doesn't have expertise to one that he hasn't put that expertise into practice.
And, of course, the University of Chicago would disagree with your claim that their professors aren't experts.

[url=http://www.law.uchicago.edu/media/index.html] (http://www.law.uchicago.edu/media/index.html)

I said that his expertise is NOT demonstrable even as he lectured on constitutional law.

[Hamlet]

BHamlet, I'd pose the same question to you (or to the president, were he here). What besides ideology and personal opinion render Bush's use of this practice beyond the pale, while Obama's is A-okay?I've already explained this. "It's like using signing statements at all. It can be fine, it can not be fine, depending on what they are being used to do. If it is used to properly invoke executive privilege or protect classified information, it's fine. If it's used to hide evidence of wrongdoing, it's not. Same tool. Different jobs. One is proper, one isn't. It's a tough concept to grasp for some, apparently.

I'll repeat what I said about signing statements when Bush used them (insert comment about poor search functionality here): "Personally, I find nothing inherently wrong with signing statements. I'm NOT much concerned with what any President says, I'm much more interested in what they do."

[Anduril]

I don't understand your perjoritive use of "lecturer". He lectured, on the Constitution, probably for about two hours at a time, for a dozen years, to students who paid big bucks and took out big loans to hear those lectures. It takes a certain class of willful ignorance to not call that expertise.

-Piker

Again, it takes a certain class of fanboyism to think that that would make anyone an expert on constitutional law. Are you saying that EVERY Lecturer on constitutional law is an expert? Of course, not.

[Anduril]

Actually, those are considered the experts in Con-Law, more so than lawyers who actually argue constitutional issues before the SCOTUS.


Yeah, if they published anything. If they haven't, how can you really say that they're experts? You're not saying that EVERY lecturer on constitutional law is an expert, are you?

[SteveG1]

It's not. He said that this statement is in fact defensible. What I believe Mr Moto is looking for is a reason why what is good for the goose is not good for the gander.

It IS a fair and reasonable question. I was against signing statements for Bush. I am also against signing statements for Obama, and any other president who follows.

[Stratocaster]

I've already explained this. "It's like using signing statements at all. It can be fine, it can not be fine, depending on what they are being used to do. If it is used to properly invoke executive privilege or protect classified information, it's fine. If it's used to hide evidence of wrongdoing, it's not. Same tool. Different jobs. One is proper, one isn't. It's a tough concept to grasp for some, apparently.

I'll repeat what I said about signing statements when Bush used them (insert comment about poor search functionality here): "Personally, I find nothing inherently wrong with signing statements. I'm NOT much concerned with what any President says, I'm much more interested in what they do."Seems reasonable to me, whether or not we'd agree on what was "fine."

My question still stands to Piker. If you, too, are expressing the same basic sentiment as Hamlet, okay. But then your bitch with Bush (or any other president) is an ideological one, not an abuse of power per se, I would think. Bush had the right / duty to use signing statements, or he didn't. His power is constitutionally restricted, or it's not. Same applies to Obama, and any blanket condemnation of a particular president's exercise of this practice should be answered with, "Too bad. Grit your teeth and get your guy elected."

Which is what the Dems did. Obama's statement is a specious distinction--Bush used his power for "evil," I'll only use it for "good" meaninglessness. Since "good" means "I'll restrict the legislation to the extent I see fit." Just as Bush did.

[Piker]

Piker, why is the issue different under Obama? What makes these observations "uncontroversial" to you? They certainly are to the legislators who disagreed.

Bush either had the right to use a signing statement for the torture legislation, or he didn't. The very exercise is one that means the president, as Obama does, indicates he will carry out the law this far and no further. What makes something a controversial, end-run evisceration other than personal opinion, if it's appropriate in some situations but not others?


For me, there are two factors: 1) whether the courts have already spoken on the issue; and 2) whether the issue is of the type that can be resolved through the judiciary.

Here, Obama reserved presidential powers on issues resolved and settled long ago. While there are still those pimping Justice White's dissent in Chadha (including myself, years ago in my ConLaw class), the issue of the legislative veto has been pretty much resolved. Same goes with dictating the terms of negotiations with foreign governments. These constitutional issues are so settled that the Executive Branch's reaction to them are within the reasonable expectations of Congress.

Going back to the Bush signing statement on torture, for example, this use of the Commander-and-Chief powers is not the settled meaning of the constitution. The Administration knew they were doing something outside the reasonable expectations of Congress. Of course, no administration should be punished for having a novel interpretation of the Constitution.

But in making many of their signing statements, the Administration was ensuring the nonjusticiability of any claim aggrevied persons would bring to courts. The whole idea of a reserve commander-and-chief powers admits of little amenability to judicial decisions. If the Administration could ignore Congress because we are at war, then it could ignore the courts as well, and it oftentimes asked the courts to abstain from deciding issues because of the wartime posture.

So in the end, the Bush Administration got to push a controversial constitutional interpretation, without having to take the political points for vetoing legislation that contradicted it, nor having to take any risk that the judicial branch would roll them back. Using signing statements to that end, therefore, insulated them from the pressures of checks and balances. That, to me, is a controversial use of signing statements.

[Richard Parker]

The problem is that this stuff is difficult to parse if you don't have a background in law. Intelligent analysis of whether a particular signing statement invokes well-settled law requires some knowledge about areas of constitutional law that are generally unknown to laymen.

But liberal bias is not coloring the opinions of the legal types in this thread. I'm confident that if Rand Rover or Bricker pop into this thread, they will agree that the principle of no legislative vetoes is well-settled while the constitutional views contained in the DTA order were not.

We can debate whether Obama's principle of restricting signing statements to well-settled law is a good one, or a necessary one, but I don't think there's a reasonable argument to be made that he has violated that principle, or that Bush did not.

[Anduril]

For some, the fact that it was Obama who did it and not Bush is enough of a reason for the double-standard. After all, Obama is the Messiah and even if has had no other achievement other than getting elected he's the ONE.

[Piker]

Well, normally, in any University, the classes in the higher years are taught by the more competent teachers.

Wrong! Law school 1L classes are usually taught by the cream of the crop.

[Anduril]

Wrong! Law school 1L classes are usually taught by the cream of the crop.

Can't verify this because I didn't go to Law School. No skin off my nose.

[Stratocaster]

Piker, interesting response (to me). Thanks.

[FinnAgain]

He is a Senior Lecturer and NOT a professor.

A piece of bullshit that you then go on to refute, immediately, yourself.
There's a reason why it's considered good sense to read your own links. Largely it's so you know wtf you're talking about, but also so you're not hoisted by your own petard. Your own link says, quite clearly "His formal title was "senior lecturer," but the University of Chicago Law School says he "served as a professor" and was "regarded as" a professor."

You'll also note, if you pay attention, that the source for FactCheck's rebuttal of your nonsense is something I've already cited and quoted.

I'll requote it for you, this time underlining the relevant parts so you can notice them. I know it's not typing in all caps, but it should help you find the details under discussion. If you're still confused, the relevant details generally deal with a word that starts with "prof" and ends with "essor."
Ready?
Go!

The Law School has received many media requests about Barack Obama, especially about his status as "Senior Lecturer." From 1992 until his election to the U.S. Senate in 2004, Barack Obama served as a professor in the Law School. He was a Lecturer from 1992 to 1996. He was a Senior Lecturer from 1996 to 2004, during which time he taught three courses per year. Senior Lecturers are considered to be members of the Law School faculty and are regarded as professors, although not full-time or tenure-track. The title of Senior Lecturer is distinct from the title of Lecturer, which signifies adjunct status. Like Obama, each of the Law School's Senior Lecturers have high-demand careers in politics or public service, which prevent full-time teaching. Several times during his 12 years as a professor in the Law School, Obama was invited to join the faculty in a full-time tenure-track position, but he declined.


And for extra credit, guess what the operative word is when one discusses an adjunct professor?


Well, normally, in any University, the classes in the higher years are taught by the more competent teachers.

Piker has already cleared up your ignorance on that point.
Why, do you think, you're making claims about law school without knowing anything about it? If you can't verify it, why are you babbling and making claims you can't verify?

[Mr. Moto]

Psst...Anduril, just a tip. I'm not one of Obama's biggest fans here, and neither is FinnAgain. And if we're not willing to jump on your bandwagon, it might be because you're wrong in this particular point.

If you feel you're not wrong, fire away, but you won't have me backing you up on this one. Obama has what expertise he has. It doesn't justify his decisions beyond a certain point, but it shouldn't be dismissed either.

[Anduril]

A piece of bullshit that you then go on to refute, immediately, yourself.
There's a reason why it's considered good sense to read your own links. Largely it's so you know wtf you're talking about, but also so you're not hoisted by your own petard. Your own link says, quite clearly "His formal title was "senior lecturer," but the University of Chicago Law School says he "served as a professor" and was "regarded as" a professor."

You'll also note, if you pay attention, that the source for FactCheck's rebuttal of your nonsense is something I've already cited and quoted.

I'll requote it for you, this time underlining the relevant parts so you can notice them. I know it's not typing in all caps, but it should help you find the details under discussion. If you're still confused, the relevant details generally deal with a word that starts with "prof" and ends with "essor."
Ready?
Go!

Did I say anything about how he was regarded or what functions he did? Of course a Senior Lecturer pretty much functions as a professor. But the fact remains that he is NOT a professor. And he is NOT published. So, if you want to base your assertion that Obama is an EXPERT in CONSTITUTIONAL LAW on the fact that he is a SENIOR LECTURER of consitutional law and NOT a PROFESSOR, then you're free to do that. My thinking is that not all Senior Lecturers are experts on the subjects they teach and someone who is unpublished at that should be regarded less so. Unless your contention is that ALL UNPUBLISHED SENIOR LECTURERS ARE EXPERTS on the subject that they are teaching.



Piker has already cleared up your ignorance on that point.
Why, do you think, you're making claims about law school without knowing anything about it? If you can't verify it, why are you babbling and making claims you can't verify?


I did not make any claims about it. I was asked why I thought fit to post the fact that he was teaching 1st year law students. I answered that, normally, teachers on 1st year subjects are not really the brightest in the field but, I'm not really committed to that idea. I was happy to be corrected on that score even though I really don't have any basis to verify. I can only go on Piker's assertion. I'm not sure that he studies in Chicago Law School, but I took his word for it because it's no skin off my nose.

[Anduril]

Psst...Anduril, just a tip. I'm not one of Obama's biggest fans here, and neither is FinnAgain. And if we're not willing to jump on your bandwagon, it might be because you're wrong in this particular point.

If you feel you're not wrong, fire away, but you won't have me backing you up on this one. Obama has what expertise he has. It doesn't justify his decisions beyond a certain point, but it shouldn't be dismissed either.

I understand what you're saying. I also understand that this is just a side issue. I only made a point of it because so many Obama fanatics around here keep on pointing at his tenure as a Senior Lecturer as somehow proof of his prodigious intellect. Given that he is not published, given that he has not demonstrated any competence beyond getting elected through the graces of the almighty MSM, I don't really see anything beyond run-of-the-mill intelligence. You keep hearing about his enormous intellect in the news and you don't see any evidence of it.

[Bosstone]

I understand what you're saying. I also understand that this is just a side issue. I only made a point of it because so many Obama fanatics around here keep on pointing at his tenure as a Senior Lecturer as somehow proof of his prodigious intellect. Given that he is not published, given that he has not demonstrated any competence beyond getting elected through the graces of the almighty MSM, I don't really see anything beyond run-of-the-mill intelligence. You keep hearing about his enormous intellect in the news and you don't see any evidence of it.Trying to deny his experience is a fool's errand. You'd be better off pointing out that it's irrelevant. It doesn't matter one bit if Joe Blowdini is a mathematics professor, if he says 2+2=7 then he's clearly wrong unless he can make a convincing case for it. That's different from saying that Blowdini isn't really a professor. He is, it just doesn't matter.

[Anduril]

Trying to deny his experience is a fool's errand. You'd be better off pointing out that it's irrelevant. It doesn't matter one bit if Joe Blowdini is a mathematics professor, if he says 2+2=7 then he's clearly wrong unless he can make a convincing case for it. That's different from saying that Blowdini isn't really a professor. He is, it just doesn't matter.

The thing is, he isn't a professor. And I am certain that those given the title of Professor in that law school didn't regard him as a Professor at the time (of course, now that he's President...). It is a title with a distinction and it is not taken lightly in the academe. Obama knew that and wished to embellish his credentials. That's fine. Every politician does that.

[Piker]

The thing is, he isn't a professor. And I am certain that those given the title of Professor in that law school didn't regard him as a Professor at the time (of course, now that he's President...). It is a title with a distinction and it is not taken lightly in the academe. Obama knew that and wished to embellish his credentials. That's fine. Every politician does that.

OK, can you stop? There was an interesting discussion going on here before you dropped in, and this argument has already been refuted by FinnAgain above. We get it. In your mind, unless a lecturer is on the tenure track, he is not a professor, even if he turned down the tenure-track gig and his colleagues still consider him to be a professor. That's fine, I'm sure you know more about what it takes to be a University of Chicago professor than University of Chicago professors. Can we end this hijack?

-Piker

[Anduril]

OK, can you stop? There was an interesting discussion going on here before you dropped in, and this argument has already been refuted by FinnAgain above. We get it. In your mind, unless a lecturer is on the tenure track, he is not a professor, even if he turned down the tenure-track gig and his colleagues still consider him to be a professor. That's fine, I'm sure you know more about what it takes to be a University of Chicago professor than University of Chicago professors. Can we end this hijack?

-Piker

I can if you will. FinnAgain did not refute anything.

[Maeglin]

The thing is, he isn't a professor. And I am certain that those given the title of Professor in that law school didn't regard him as a Professor at the time (of course, now that he's President...). It is a title with a distinction and it is not taken lightly in the academe. Obama knew that and wished to embellish his credentials. That's fine. Every politician does that.

The University of Chicaco claims that it extended Obama offers to become a full-time, tenure track member of the university. Had he accepted, he would have been, in name as well as in fact, a PROFESSOR. By your logic, this would have conferred upon him a certain EXPERTISE.

But since he was only a LECTURER, you argue that we cannot presume he has a great deal of expertise.

Supposing that your claim is true, how exactly does the process of accepting an offer of full-time university work confer EXPERTISE that one could not presume before? If this were the case, how would any university hire anyone?

Your arguments are so absurd and specious, I only continue the hijack as a form of minor intellectual indulgence and to make absolutely certain that all silent readers are entirely aware of the utter paucity of your logic and the irrelevance of your position.

[Stratocaster]

Now, Gilligan was pretty dumb. But was the Professor really a professor? Hmm? I notice nobody answering this one.

[Maeglin]

I can if you will. FinnAgain did not refute anything.

Actually, he did.

FinnAgain and I rarely agree and have had many very pointed exchanges in the past. But in this case, I have to say that his refutation was complete, thorough, and absolutely sufficient.

[Nobody]

Seems to me that if a president uses a signing statement to clarify how he (or hopefully some day she) will enforce any ambiguities in a bill after it is signed into law, that sounds reasonable.

If a president uses a signing statement to say that (s)he won't enforce a part of a bill that (s)he doesn't agree with, for whatever reason, it sounds more like a line-item veto, which the Supreme Court ruled as unconstitutional. And as far as I'm concerned, that means that if a president doesn't agree with parts of a bill then (s)he should just veto the whole thing.

So, signing statement to clarify ambiguities, good thing.
Signing statements that say, I'll enforce this part of a bill, but not that, bad thing.

[Hentor the Barbarian]

So, as regards the OP, it appears I shall have to continue to wait for the justification for my dismay/disappointment/displeasure/outrage. It appears I will not even find out what makes this particular signing statement "a doozy."

Maeglin and RickJay, I'm getting the sense that Mr. Moto does not want to explain why this was a doozy. Since you guys seemed to know what he was talking about, would you mind cluing me in? What made this a "doozy"?

[Captain Carrot]

After all, Obama is the Messiah and even if has had no other achievement other than getting elected he's the ONE.
given that he has not demonstrated any competence beyond getting elected through the graces of the almighty MSM,

Kindly stop spouting lies.

[Maeglin]

So, as regards the OP, it appears I shall have to continue to wait for the justification for my dismay/disappointment/displeasure/outrage. It appears I will not even find out what makes this particular signing statement "a doozy."

Maeglin and RickJay, I'm getting the sense that Mr. Moto does not want to explain why this was a doozy. Since you guys seemed to know what he was talking about, would you mind cluing me in? What made this a "doozy"?

I just took a "doozy" here to mean an event of some import. A whopper. A big 'un. Mr. Moto said that he personally found the signing statement to be "defensible". He wanted to know whether the Liberal Millions felt the same way, and if so, how is it different from signing statements used by more objectionable presidents.

This question has been answered admirably by the Teeming Counselors.

[Mr. Moto]

Well, it is true that it was quite lengthy as these things go, and it did explicitly state that he won't follow certain legislation or would follow certain others according to his own interpretation of the law and not necessarily Congress's intent.

Since these actions created considerable controversy during the Bush administration when attached to other legislation - and since that controversy ran the gamut from a criticism of the practice to a criticism of Bush - I wanted to see what people thought of Obama's action. I thought that was a fair question, and I expected many different answers.

[Richard Parker]

And how do you now view the issue, Mr. Moto? Do you agree that there is a principled distinction between Bush's practice of signing statements and Obama's thus far?

[FinnAgain]

Ah well, this silly little hijack aside, I would just like to point out that as I'm certainly not any dyed in the wool supporter of Obama, I can at least respect the fact that his intellect is considerable, his time as a professor of law and as editor in chief of the Harvard law review (and especially the manner in which he conducted himself there) speak to considerable legal chops, and he is to be taken quite seriously on legal matters. With that being said, I'm not committing the fallacy of appeal to authority. Obama's legal positions can be as wrong as any other lawyers'.

Now, preamble out of the way: I don't much like the concept of signing statements on points of law. If a sitting President is going to go beyond clarifying ambiguity and go as far as to state that he won't follow/be bound by any one of the laws of the land, I'd much prefer that the bill simply be vetoed, or that the law itself be challenged in a court of law and defeated or upheld on its constitutionality.

I can understand and respect that there's tension between the branches of government. Checks and balances are a dynamic process, and I'm fine with that. But I do get uncomfortable when the executive decides what actions of the legislative branch are and are not constitutional. It seems to me that should a function reserved for the judicial branch and that if the President can't manage a veto, then he's bound by the law until the point at which it's overturned as unconstitutional.

I don't have a problem, either, with the SCOTUS fast-tracking problematic legislation so it can immediately be analyzed on its merits and overturned post haste if need be. But I am very apprehensive of a POTUS who believes he can simply disregard the law because he feels it's not valid. Even if he's right, I don't believe that's a power that the President should have. Perhaps I'm missing something (and I'd be more than willing to retract or modify my statements if I'm wrong), but the SCOTUS should be able to quickly issue injunctions on any new law until its ultimate constitutionality is determined. At least, the SCOTUS should have enough information to do so if the law is egregious enough that the POTUS could state definitively that it was so wrong that he simply didn't intend to follow it.

[Anduril]

The University of Chicaco claims that it extended Obama offers to become a full-time, tenure track member of the university. Had he accepted, he would have been, in name as well as in fact, a PROFESSOR. By your logic, this would have conferred upon him a certain EXPERTISE.

But since he was only a LECTURER, you argue that we cannot presume he has a great deal of expertise.

Supposing that your claim is true, how exactly does the process of accepting an offer of full-time university work confer EXPERTISE that one could not presume before? If this were the case, how would any university hire anyone?

Your arguments are so absurd and specious, I only continue the hijack as a form of minor intellectual indulgence and to make absolutely certain that all silent readers are entirely aware of the utter paucity of your logic and the irrelevance of your position.

The University of Chicago claims that it extended an offer for full Professor - but given the situation, I'm not entirely sure that the University of Chicago would be motivated to say that he wasn't offered squat had the opposite been true. The incontrovertible fact is that he is NOT a professor and you cannot say anything about his being an "expert" in constitutional law on the basis of that and on the basis of the fact that he is unpublished. It's really a simple thing to wrap your mind around. I don't understand why you're having problems. And yes, I know it's a side issue, but you keep on insisting that he IS an expert. (else, why even respond to the post)

And clearly, you left your cognitive faculties somewhere, because FinnAgain hasn't refuted anything.

[Maeglin]

The University of Chicago claims that it extended an offer for full Professor - but given the situation, I'm not entirely sure that the University of Chicago would be motivated to say that he wasn't offered squat had the opposite been true. The incontrovertible fact is that he is NOT a professor and you cannot say anything about his being an "expert" in constitutional law on the basis of that and on the basis of the fact that he is unpublished. It's really a simple thing to wrap your mind around. I don't understand why you're having problems. And yes, I know it's a side issue, but you keep on insisting that he IS an expert. (else, why even respond to the post)

And clearly, you left your cognitive faculties somewhere, because FinnAgain hasn't refuted anything.

It may be a "simple" thing, but it is very much a wrong thing. This often happens.

Your answer is non-responsive. You also have no basis in fact to question the veracity of the claims made by the University of Chicago. You have clearly never been to law school and do not know very much about the actual behavior of law lecturers or professors.

In fact, you don't seem to know much about the behavior of university faculty search committees, either. Somehow, I am not surprised.

[Anduril]

You also have no basis in fact to question the veracity of the claims made by the University of Chicago.

I can only appeal to your common sense. Obama was being groomed to be the Democratic nominee. He had a lot of pull particularly in Chicago and in that school. He can become a generous benefactor to the school or not when he's President depending on how they handled that question.

You have clearly never been to law school and do not know very much about the actual behavior of law lecturers or professors.

I taught Psychology at a university at an Instructor level and I can say that where I taught, "Professor" is a title that confers distinction and denotes a higher level of scholarship. I don't believe the university I taught in is any different from the University of Chicago in that respect.

[Fish]

But I do get uncomfortable when the executive decides what actions of the legislative branch are and are not constitutional. It seems to me that should a function reserved for the judicial branch and that if the President can't manage a veto, then he's bound by the law until the point at which it's overturned as unconstitutional.
Except that we require the President to swear an oath to uphold that very Constitution. We are looking at this problem in light of a strong Executive and a (until recently) rubber-stamp Legislature, but it must also be looked at the opposite way: a strong Legislature and a weak Executive. The Legislature should not be permitted to overturn the Constitution by fiat any more than the Executive should be so allowed, to pass unconstitutional laws as part of an omnibus package and compel the Executive to abide by them.

Resolving that conflict — how to uphold the Constitution and enforce the law, even unconstitutional laws — is really one thing that the U.S. Constitution does poorly. I too would like to see a fast-track system where a law can be submitted for legal analysis, not by White House counsel, but by the Supreme Court. That's their job.

[Ravenman]

I taught Psychology at a university at an Instructor level and I can say that where I taught, "Professor" is a title that confers distinction and denotes a higher level of scholarship. I don't believe the university I taught in is any different from the University of Chicago in that respect.Look, you might find this hard to believe, but it is possible that the University of Chicago does not subscribe to your definition of "Senior Lecturer." The law school itself (even in your own cite) has clearly stated that the difference between Senior Lecturer and those who hold the position of Professor is merely that Senior Lecturers are not on a tenure track.

To put this in clearer perspective, Richard Posner (http://en.wikipedia.org/wiki/Richard_Posner) is now a Senior Lecturer at Chicago. Posner is widely regarded as a highly respected jurist and perhaps one of the most notable legal minds of our times.

I understand that you think "Senior Lecturer" is equal in status to "adjunct instructor," or something similar. But it stands to reason that if Judge Posner is given the position of Senior Lecturer, the term, as applied by the University of Chicago to its faculty, is indicative of someone who is highly valued by the school.

Besides all that complex logic, it's just f'in' stupid to think that one of the top law schools in the country would hire teachers that they do not consider to be experts in law.

[Piker]

Resolving that conflict — how to uphold the Constitution and enforce the law, even unconstitutional laws — is really one thing that the U.S. Constitution does poorly. I too would like to see a fast-track system where a law can be submitted for legal analysis, not by White House counsel, but by the Supreme Court. That's their job.

Two thoughts:

1) The Constitution did anticipate this situation by providing the Executive with the veto power. The funny thing is, when looking back on the original understanding of the constitution, that was the purpose of the veto power: to prevent the enactment of unconstitutional laws. The Framers did not consider the veto to be a tool for "mere" policy disagreement. However, the rise of the popular presidency and the centrality of the executive in modern politics has made the veto power part of the policy making process.

Unfortunately for the Framers (and all those who deify everything they wrote or said) they "screwed up" by not anticipating the sheer breadth of omnibus bills, where vetoing because of one minor constitutional wrinkle would create a seriously defective process. It is for this reason that the institution using presidential signing statements to signal constitutional disagreements evolved, and was intended for use when the constitutional reservations were either 1) well settled or 2) amenable to judicial resolution. It is the Bush Administration's departure from that convention that many disagreed with, and I detailed in my post above.

2) I don't know how I feel about fast tracking issues to the Supreme Court whenever they arise. There are some areas of the constitution that I feel are necessary to keep ambiguous, unless the Court absolutely must rule on a case. The ambiguity goes a long way in ensuring respect for the separation of powers, and heading us off from any major constitutional crisis. For example, the constitutionality of jurisdiction-stripping certain issues from the Supreme Court docket, is not something I would like to see Congress force the Court's hand on.

-Piker

[Mtgman]

Well, it is true that it was quite lengthy as these things go, and it did explicitly state that he won't follow certain legislation or would follow certain others according to his own interpretation of the law and not necessarily Congress's intent.Is that accurate? My understanding is he's saying the laws Congress has passed are overstepping their bounds as a matter of settled law. Thus it's not HIS interpretation of the law, but THE interpretation of the law, as set forth by the SCOTUS. Many of Bush's most controversial signing statements were either arrogating new powers to his office, or stating his intent to not abide by the statute with nothing except his authority as POTUS behind it. Using a signing statement to say "hey, this legislation is over-broad and violates established precedent, as defined by the SCOTUS" is very different.

Congressional intent is not sacred. Indeed in places where it violates separation of powers or other constitutional principles, it should be disregarded. Ideally a veto, but that's not how Washington works at this point in time. Since portions of this bill had essentially been ruled unconstitutional already by SCOTUS precedent, I see no reason not to note that upon signing. The POTUS is bound by SCOTUS decisions, so he may as well say "I won't follow this portion of the law because constitutional caselaw says it is unconstitutional."

Enjoy,
Steven

[Mtgman]

Perhaps I'm missing something (and I'd be more than willing to retract or modify my statements if I'm wrong), but the SCOTUS should be able to quickly issue injunctions on any new law until its ultimate constitutionality is determined. At least, the SCOTUS should have enough information to do so if the law is egregious enough that the POTUS could state definitively that it was so wrong that he simply didn't intend to follow it.The case or controversy (http://en.wikipedia.org/wiki/Case_or_controversy) requirement for the SCOTUS to take up an issue generally prevents pre-emptive injunctions against new laws. The attorneys in the thread have cited previous caselaw which supports Obama's signing statement saying this law is overbroad and runs afoul of well settled law. Perhaps it's time to re-visit it and see if a new case would change the law, but that doesn't seem to be Obama's approach. He's just saying that this law is in violation of established precedent and he's not going to defy SCOTUS precedent in order to follow Congressional intent.

As always, it's more complicated than that, but Obama seems to be on pretty firm ground, legally speaking. He's not backing up his signing statement with nothing more than his own authority as POTUS. He's got SCOTUS precedent on his side.

Enjoy,
Steven

[RickJay]

Maeglin and RickJay, I'm getting the sense that Mr. Moto does not want to explain why this was a doozy. Since you guys seemed to know what he was talking about, would you mind cluing me in? What made this a "doozy"?
I never stated I thought the signing statement was a "doozy." I was solely responding to what I thought was your suggestion, in Post 9, that the word meant he necessarily disagreed with Obama's position on the legislation, which I thought was not necessarily a safe assumption. That was the entire extent of my comment and I'm not in a position to speak in detail for another poster. If you want information from him, get it from him.

[Mr. Moto]

Being Commander-in-Chief doesn't give the President the right to send troops wherever he wants. Article One, Section Eight: The Congress shall have power to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; to raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces; to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; to provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress. Article Two, Section Two: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States. That's pretty clear: Congress has the power to decide if troops are sent on a peace-keeping mission (or a military mission) not the President. Once Congress has decided, the President executes the mission.

Couple of things here. First of all, Congress may have a check on presidential power here - but it does not extend to making him get approval for a military action from an aide. That is an interference of his constitutional responsibilities and a ducking of the powers and responsibilities that Congress has to itself.

Secondly - you imply that the president must act on laws passed by Congress - while case law shows that this is not always so. This was strongly implied in Marbury v. Madison and made explicit in Mississippi v. Johnson.

Clearly presidential duties may take a ministerial form that allow for little discretion, or a discretionary form that allows considerable flexibility. Frankly I regard signing statements as mere notice that a president intends to do what in the past he did with little notice.

I wouldn't expect a court to give the statement much weight - but the actions being announced may well be constitutional or may well not be. And these actions could be held or overturned by a court - keeping these precedents in mind.

[Little Nemo]

The Supreme Court has been sharply tilted [by Roberts and Alito, who had pro-Unitary-Executive records before their appointment, as discussed in earlier chapters] toward a sympathetic view of executive powerWant to bet there's going to be some rethinking on this issue?Couple of things here. First of all, Congress may have a check on presidential power here - but it does not extend to making him get approval for a military action from an aide. That is an interference of his constitutional responsibilities and a ducking of the powers and responsibilities that Congress has to itself.

Secondly - you imply that the president must act on laws passed by Congress - while case law shows that this is not always so. This was strongly implied in Marbury v. Madison and made explicit in Mississippi v. Johnson.

Clearly presidential duties may take a ministerial form that allow for little discretion, or a discretionary form that allows considerable flexibility. Frankly I regard signing statements as mere notice that a president intends to do what in the past he did with little notice.

I wouldn't expect a court to give the statement much weight - but the actions being announced may well be constitutional or may well not be. And these actions could be held or overturned by a court - keeping these precedents in mind.I'm not saying that Congress can determine every action a President takes. But the power to declare war is one power that the Constitution explicitly gives to Congress. So, yes, Congress can put whatever conditions it wants on it. Congress can't require the President to seek approval from an aide - but Congress can say that it won't approve a military action if the President doesn't do it.

[Diogenes the Cynic]

The issue was never Bush's use of signing statements, but his abuse of them. just like his abuse of Executive Privilege (or his abuse of booze and blow).

[Hentor the Barbarian]

Well, it is true that it was quite lengthy as these things go[...]Is it? How long do these things usually go?

[Mr. Moto]

I'm bumping this thread because of a very interesting update.

Seems President Obama was stung pretty badly by criticism of his signing statements from liberal quarters last year, and he has curtailed the practice of issuing them. However, he still plans not to enforce sections of laws he finds questionable:

Already, Mr. Obama has had to reconcile his campaign-trail criticism of Mr. Bush for excessive use of so-called signing statements to bypass parts of legislation with his own use of such tactics. After a bipartisan furor in Congress last year, Mr. Obama stopped issuing such signing statements, but aides said last month that he still reserves the right to ignore sections of bills he considers unconstitutional if objections have been lodged previously by the executive branch.

From here. (http://www.nytimes.com/2010/02/13/us/politics/13obama.html)

So - the practice might end on paper, but the actual practice that people found objectionable - not enforcing the law - will continue.

How will we know which laws he will and won't enforce? However problematic the signing statement may have been, at least it had the benefit of transparency. This appears to be sacrificed for the sake of appearances.

I supported the signing statement in the OP. I can't support this.

[ElvisL1ves]

It's troubling, agreed. However, the typical Bush reason for not enforcing the law was the "unitary executive" nonsense, if not simple convenience, not an actual opinion about actual constitutionality from an actual (former) con-law professor.

Your use of equivalence is false, but a decent attempt nonetheless.

[Shodan]

How will we know which laws he will and won't enforce? Apparently he is confusing the White House for the Supreme Court....aides said last month that he still reserves the right to ignore sections of bills he considers unconstitutional if objections have been lodged previously by the executive branch.A former Constitutional professor who thinks the executive branch decides Constitutional questions. Hmm.

However problematic the signing statement may have been, at least it had the benefit of transparency. This appears to be sacrificed for the sake of appearances.Pretty much. He wants to do the same thing as Bush, but not be honest about it.

He owes an apology to anyone he ever flunked.

Regards,
Shodan

[SteveG1]

Many times on these boards the use of signing statements by President Bush has been criticized. This criticism would be most intense when he would declare a portion of a bill as an interference of his constitutional duties and would state his intention to enforce it a certain way or not at all.

Yesterday President Obama issued his second signing statement - and it is a doozy: (http://www.whitehouse.gov/the_press_office/Statement-from-the-President-on-the-signing-of-HR-1105/)



So the question comes up - how were the Bush signing statements materially different from this? And if they weren't terribly different, shouldn't President Obama be criticized for this statement as well?

(Not by me, though - I generally thought the signing statements were defensible, and this one looks to be as well.)

I'm not familiar with the details. This is actually the first I've heard of it.

But I am opposed to signing statements, no matter who does it. Let him either sign or veto.

[Mr. Moto]

That part doesn't bother me, Shodan - that was always the reason for the statements in the first place (even the "unitary executive" ones depend on a certain reasoning vis-a-vis the Constitution). What bothers me is that if someone is wronged by the President's actions in this way, it becomes difficult to determine whether he was responsible for the decision and overturning it in court, already tricky, becomes much harder.

[Shodan]

What bothers me is that if someone is wronged by the President's actions in this way, it becomes difficult to determine whether he was responsible for the decision and overturning it in court, already tricky, becomes much harder.

I don't disagree with this at all. It just seems to me that, if Obama thinks he is entitled to act this way, he ought at least to not try to pretend he isn't doing it. Bush at least did that. He made it clear what he was going to do, and gave the rationale for it. Obama doesn't.

The next step, it seems, in the "Washington-ization" of Obama. "I won't do that" is followed by "I will and here's why" is followed by "I will and everyone should look the other way" is followed (sometimes) by "how can I cover up all this?"

Or possibly even "I decline to answer on the grounds that it may tend to incriminate me".

Regards,
Shodan

[Deeg]

I don't know anything about the history of signing statements but our government is set up to allow the executive branch to not execute laws signed by the legislature. It's part of the tri-lateral checks and balances. For example, Jefferson used his executive privilege to ignore the Alien and Sedition Act.

[Mr. Moto]

Right - and that privilege is similarly balanced by various types of review - ranging from mandamus to appeal for abuse of discretion.

[BrainGlutton]

Uh huh. What if those laws are plainly unconstitutional, like requiring the President to seek the approval of an appointed underling before committing our troops to peacekeeping missions? I'm sure you can see the problem here - the Constitution says the President is Commander-in-Chief, not his advisers.

Pick a better example. That one isn't so cut-and-dried. The Constitution also says only Congress can declare war, and it is established that Congress can delegate some powers, within limits (see Delegata potestas non potest delgari (http://en.wikipedia.org/wiki/Delegata_potestas_non_potest_delegari)). And the War Powers Resolution of 1973 (http://en.wikipedia.org/wiki/War_Powers_Act) raises some constitutional questions, with persuasive arguments on both sides, that have never yet been settled by the courts.

[Deeg]

Right - and that privilege is similarly balanced by various types of review - ranging from mandamus to appeal for abuse of discretion.
I'm not familiar with mandamus in the Federal system (so perhaps I'm over my head) but I believe the only legal appeal against executive privilege is if the president is violating the constitution. Congress can put pressure on the president by refusing to fund certain programs, which is different.

[Mr. Moto]

Pick a better example. That one isn't so cut-and-dried. The Constitution also says only Congress can declare war, and it is established that Congress can delegate some powers, within limits (see Delegata potestas non potest delgari (http://en.wikipedia.org/wiki/Delegata_potestas_non_potest_delegari)). And the War Powers Resolution of 1973 (http://en.wikipedia.org/wiki/War_Powers_Act) raises some constitutional questions, with persuasive arguments on both sides, that have never yet been settled by the courts.

These do not extend to making the President's decisions dependent on one of his military advisers (that, incidentally, serve at his pleasure.) If Congress has an objection to a military action they need to take it up, not handle it in this clearly unconstitutional way.

[Nobody]

If I'm remembering correctly, a Republican Congress gave President Clinton line-item veto powers which the Supreme Court struck down as being unconstitutional. So that means that a president has to either sign a whole bill into law, or reject the whole thing. They can't accept only part of a bill.

So for all intents and purposes, how is a president saying he'll enforce only part of a bill signed into law any different than a line-item veto? I thought that if a law, or part of a law was contested as being unconstitutional, it could be brought before the Supreme Court and they would decide.

It seems clear-cut to me. What Bush did was wrong, and what Obama is doing is wrong, but it does amuse me that some people are defending Obama with "Well at least he's doing it for good reasons." And we know that, how? Oh yeah, he said so, and because of how awful Bush was, that must mean that Obama is doing right. Actually, that seems to be the defense about anything Obama does that Bush got criticized for, "Bush was evil, so I have to believe that Obama has good intentions." It seems to me that if something is wrong, it's wrong, regardless of the intentions of the people doing it.

[Diogenes the Cynic]

Bush used signing statements to give himself more power. Obama is stating that he will refrain exercising all the power that he could. That's the difference.

[Nobody]

Bush used signing statements to give himself more power. Obama is stating that he will refrain exercising all the power that he could. That's the difference.
And because he's saying it, it must be true?

[Diogenes the Cynic]

Well, if he enforces things he says he won't enforce then you'll know wasn't telling the truth.

[Nobody]

Well, if he enforces things he says he won't enforce then you'll know wasn't telling the truth.
That's actually my point. We'll need to see what he doesn't enforce and judge by his actions and not just take him at his word.

But even if that is his intent, it still seems like an end-run around the ban on line-item vetos. You get the same effect saying "I'll sign this bill into law, but I won't enforce sub-section A," as you do saying "I'll sign every part of this bill into law, except for sub-section A. I'm vetoing it."

[tomndebb]

[ Moderator Note ]

I am aware that this is a zombie thread and I would have preferred that a new thread had been posted with a link to this one,

HOWEVER,

pretty much all the original participants are still here, so there are unlikely to be stones thrown at departed posters, and the level of hostility was rather mild, (for matters regarding a current president), so I am not going to close this thread.

THEREFORE, before you Report a post, (such as one accusing other posters of lying), look at the date and make sure that it is a current post.

I am not going to hand out Warnings for violations that occurred months ago.

[ /Moderating ]

[Diogenes the Cynic]

That's actually my point. We'll need to see what he doesn't enforce and judge by his actions and not just take him at his word.

But even if that is his intent, it still seems like an end-run around the ban on line-item vetos. You get the same effect saying "I'll sign this bill into law, but I won't enforce sub-section A," as you do saying "I'll sign every part of this bill into law, except for sub-section A. I'm vetoing it."
Yes, it is somewhat of an end run around line item vetoes, but Chief Executives always have some executive discretion in what they will enforce, and how aggressively.

I don't have a problem with a President choosing to exercise less power rather than more. Do you?

[Nobody]

Yes, it is somewhat of an end run around line item vetoes, but Chief Executives always have some executive discretion in what they will enforce, and how aggressively.

I don't have a problem with a President choosing to exercise less power rather than more. Do you?
I'm a strong believer that the spirit of the law is more important than the letter of the law, and so if Bush and Obama violate the spirit of the ban on line-item vetos, by doing something else that has the same effect, then yes, I do have a problem with it.

[gonzomax]

If you are a lecturer ,you are not very good and really have nothing to show. If you get offered a professorship and accept, that day you are an expert. What a dumb argument. He is the embodiment of his education and career.
Note ,the liberals are actually criticizing Obama over the signing statements. The Repubs had nothing to say when Bush cranked them out like a factory.

[Nobody]

Note ,the liberals are actually criticizing Obama over the signing statements. The Repubs had nothing to say when Bush cranked them out like a factory.
The Republicans in Congress, with the exception of immigration reform, and I think one other issue, were a bunch a yes men who blindly rubber-stamped anything Bush did and have mostly done a 180 and are a bunch of no men for Obama. I'm glad that the Libs are critical, but ultimately I don't think it will come to much.

I'd love to see this issue settled by the Supreme Court once and for all, but realistically it will probably wallow in ambiguity forever.