Exercising his power or venturing into congressional turf?

When he was a candidate, Barack Obama used signing statements as a convenient point of contrast with his predecessor. President George W. Bush issued more than 100 such statements, signaling that his administration would not carry out congressionally approved provisions on a range of issues, from barring the use of torture to requirements that the executive branch report certain information to Congress. A bipartisan panel of the American Bar Association decried Bush"s use of signing statements as a "serious threat to the rule of law," saying it ran contrary to the system of presidential vetoes and congressional overrides created by the U.S. Constitution.

We aren't taking a position on whether signing statements are good or bad for the country (or, perhaps, somewhere in between). And it's important to understand that they have long been part of the routine tug-of-war between the executive and legislative branches. But we do intend to gauge whether Obama kept his promise.

The issue rose to some prominence on July 21, 2009, when four senior House Democrats wrote Obama a letter complaining about a signing statement the president issued on June 26, in which he argued that he need not abide by conditions set by lawmakers addressing aid for the World Bank and the International Monetary Fund. The president had contended that the language in the bill unduly hampered his authority to conduct foreign policy.

"During the previous administration, all of us were critical of (Bush's) assertion that he could pick and choose which aspects of congressional statutes he was required to enforce," the Democrats' letter read. "We were therefore chagrined to see you appear to express a similar attitude." The letter was signed by House Appropriations Chairman David Obey, D-Wis., House Financial Services Chairman Barney Frank, D-Mass., well as Rep. Nita Lowey, D-N.Y., who chairs the Appropriations Subcommittee on State and Foreign Operations, and Rep. Gregory Meeks, D-N.Y., who chairs the the Financial Services Subcommittee on International Monetary Policy and Trade.

The sentiment appears to be bipartisan. The House on July 9 approved, by a 429-2 vote, an amendment restating that the administration should pressure the World Bank to tighten standards on labor and the environment and require the Treasury Department to submit a report on World Bank and International Monetary Fund activities. The amendment was proposed by Rep. Mark Kirk, R-Ill.

Before we explore whether Obama has broken his promise, let's look at what he said he'd do, and not do.

The promise comes from a 2007 interview with the Boston Globe' s Charlie Savage. Obama said, "While it is legitimate for a president to issue a signing statement to clarify his understanding of ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute the law, it is a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability. I will not use signing statements to nullify or undermine congressional instructions as enacted into law."

He continued, "The problem with (the Bush) 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. The fact that President Bush has issued signing statements to challenge over 1,100 laws — more than any president in history — is a clear abuse of this prerogative. No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives; unfortunately, the Bush administration has gone much further than that."

Obama continued in a similar vein when he issued an official memorandum on March 9 outlining how he would use signing statements.

"I will issue signing statements to address constitutional concerns only when it is appropriate to do so as a means of discharging my constitutional responsibilities," the memo reads, adding later, "I will strive to avoid the conclusion that any part of an enrolled bill is unconstitutional. In exercising my responsibility to determine whether a provision of an enrolled bill is unconstitutional, I will act with caution and restraint, based only on interpretations of the Constitution that are well-founded."

It"s important to note that Obama makes clear in both his campaign assertion and his official memo that he does not consider signing statements to be problematic in and of themselves. Rather, he argues, their use should be limited in scope and reach, clearly stating that President Bush went overboard.

"The president has also already made it clear that he will ... reserve signing statements for legislation that raises clearly identified constitutional concerns," White House spokesman Ben LaBolt said in a statement after the Democratic letter was released.

Thus, the fact that Obama has so far issued five substantive signing statements during his presidency does not mean he has broken his promise. (A few other presidential signing statements appear to be innocuous. For instance, a statement issued June 24, accompanying a supplemental spending bill, merely expresses thanks for congressional cooperation.)

Here is a rundown of Obama's five substantive signing statements.

We addressed his March 11 signing statement — which accompanied the Omnibus Appropriations Act, a leftover spending bill from the prior year — when we rated this promise Stalled last month. Obama objected to five aspects of the bill, including a whistleblower provision and several items on foreign policy. We concluded that the signing statement "seems to undermine clear congressional instructions," but we rated it Stalled pending further examples of signing statements from the administration.

Another, from March 31, accompanied the president"s signing of the Omnibus Public Land Management Act of 2009. While his statement lauded most aspects of the bill, the president balked at one provision limiting how the Interior secretary can fill some slots on the Erie Canalway National Heritage Corridor Commission.

"Because it would be an impermissible restriction on the appointment power to condition the Secretary's appointments on the recommendations of members of the House, I will construe these provisions to require the Secretary to consider such congressional recommendations, but not to be bound by them in making appointments to the Commission."

This statement, like the others, is about the president asserting his power. He argued that his power to appoint members of this commission (as exercised through the Interior secretary) is his alone, and that the House cannot establish any binding — as opposed to advisory — authority over such an act.

A third signing statement, from May 20, accompanied the signing of the Fraud Enforcement and Recovery Act of 2009. In the statement, the president again praised aspects of the bill he was signing, but he asserted that he reserves the right to prevent an administration official from testifying before the Financial Crisis Commission — which is congressionally appointed but is not an arm of Congress itself — on matters the Obama administration considers privileged.

A fourth, from June 2, accompanied a bill to create a Ronald Reagan Centennial Commission. In the statement, Obama clarifies the role of the commission under the separation of powers doctrine. He invokes comments by Reagan himself on the role that Congress can play in this type of commission.

The last — the June 26 signing statement that irked House Democratic leaders — accompanied a supplemental spending bill. The president wrote that provisions of this bill "would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with international organizations and foreign governments, or by requiring consultation with the Congress prior to such negotiations or discussions. I will not treat these provisions as limiting my ability to engage in foreign diplomacy or negotiations."

By making this assertion, the president was essentially saying that the administration — not Congress — has the right to conduct foreign policy and doesn't want Congress to meddle in negotiations with international financial institutions like the World Bank and the International Monetary Fund.

In rating this promise, we have to judge whether Obama has been consistent with his vow to use the statements "to clarify his understanding of ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute the law" and to avoid using them "to nullify or undermine congressional instructions as enacted into law."

The least contentious example is the one on the Reagan centennial, since there is no indication of any disagreement between his administration and Congress. The other ones are more challenging for us to rate.

In the case of the the Erie Canal commission, the president said that when choosing its members, he disagreed that they need to be approved by lawmakers. That sounds like a reasonable constitutional interpretation, but some in Congress could see it as "undermin(ing) congressional instructions as enacted into law," and maybe even nullifying them.

In case of the financial commission, the president sought to prevent administration officials from having to provide "any information related to any Commission inquiry," as Congress had written into the law. Here, too, it seems like the president is balking at Congress and seeking to undermine, if not nullify, the instructions that Congress wrote into the law.

Finally, in the IMF case that drew the House Democratic ire, the president refused to be bound by language that mandated his administration to take certain positions as dictated by Congress, or requiring advance consultation with Congress. That also sounds like a bid to undermine or nullify congressional instructions. But as the experts say below, he's also raising reasonable constitutional questions.

It's worth noting that Obama has not used signing statements in the bold and sweeping way that President Bush did. Bush, for instance, said that his role as commander in chief meant that he could ignore the wishes of Congress — expressed in several bills that passed both chambers and were signed by the president — that U.S. troops be kept out of combat against Marxist rebels in Colombia funded by the drug trade.

So after his initial signing statements in his first six months in office, Obama has a mixed record.
 
Obama "has violated his pledge, on paper," said Andrew Rudalevige, a Dickinson College political scientist who has studied the issue. But, Rudalevige added, Obama "has not used signing statements in the same policy-oriented manner as his predecessor."

Unlike Bush, Obama has not picked his battles on major issues such as the use of torture. Rather, he"s quibbled over the seating requirements for a commission that virtually no one's heard of (and stipulated to an advisory role rather than a binding role for Congress). He's laid down limits on what his subordinates will tell a panel that lacks any binding legislative power. And he's refused to let Congress dictate specific negotiating positions in foreign policy.

Indeed, Obama's statements were "conventional assertions of executive autonomy," rather than his own policy agenda, said John Woolley, a University of California-Santa Barbara political scientist who has studied presidential powers.

Obama's actions are "routine as far as how the signing statement had been used prior to the Bush II administration," added Christopher Kelley, a political scientist at Miami University of Ohio and a specialist in signing statements. "From this standpoint I have seen nothing that Obama has done that is out of the main, nor in violation of his promise."

Woolley agrees. "In terms of the things he objects to about legislation, Obama's statements are not really all that different from those of his predecessors" other than Bush. ... These statements are all precise examples of 'using signing statements to protect a president's constitutional prerogatives' — exactly as he promised."

So for now, we find evidence on both sides. There have been the instances where Obama does seem to be exercising more presidential power than Congress would like and, in at least a couple of cases, crossing the line from his promise. But these are issues of power, over which the legislative and executive branch have long tussled. So for now, we're going to rate this one Compromise. But we'll be watching future signing statements to see if we should move the Obameter one way or the other.