Signing statements still controversial

When we last updated this issue in July 2009, President Barack Obama had issued seven signing statements. That number now stands at 18. In the intervening period, one statement in particular  -- his most recent from April 2011 -- made us wonder if it were a possible violation of his campaign pledge.  

Before we get into the analysis of President Obama"s recent statement, we should provide some background on the signing statement controversy. Signing statements are memos that presidents sometimes attach to bills when they are signed into law. Traditionally presidents used signing statements to innocuously comment on pieces of legislation. The practice has long historical roots, with some scholars claiming that President James Monroe was the first practitioner.

The current turmoil surrounding signing statements stems from how President George W. Bush used them. Critics, including a bipartisan American Bar Association panel, excoriated President Bush for using signing statements to re-interpret or ignore, rather than veto, portions of laws he did not agree with.

Barack Obama criticized President Bush for signing statements. In a 2007 interview in the Boston Globe, Obama pledged to refrain continuing this practice. Although he did not advocate banning signing statements, Obama said, "I will not use signing statements to nullify or undermine congressional instructions as enacted into law ... 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.”

"During the campaign, Obama said he would not stop using the signing statement but  would use them in a way that was different from President Bush -- which basically took aim at Bush's signing of the Detainee Treatment Act, where he explicitly made a promise to Congress not to authorize the use of torture and then issued a signing statement that seemingly negated that agreement,” said Christopher Kelley, Professor in the Department of Political Science at Miami University in Ohio.

On March 9, 2009 the White House issued a memorandum from President Obama that outlined his view on signing statements and when he would issue them. "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,” read the memorandum.

Last April Obama attached a signing statement to the Fiscal Year 2011 budget bill. The statement, in part, addressed a policy rider in the bill that stripped funding of four presidential "czars." The term "czars” is a sobriquet used to describe special presidential advisers who are often not subject to congressional approval. Former administration official Van Jones, for example, was President Obama"s "green jobs czar.” This prohibition is in response to the large number of czars that President Obama has appointed and the controversy surrounding them. PolitiFact has previously analyzed statements about this issue. Ironically, the four "czar" positions in question either no longer exist or are empty --  climate change, health care, automobiles, and urban affairs.

In his April 2011 signing statement President Obama wrote:
 

Section 2262 of the Act would prohibit the use of funds for several positions that involve providing advice directly to the President. The President has well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority. The President also has the prerogative to obtain advice that will assist him in carrying out his constitutional responsibilities, and do so not only from executive branch officials and employees outside the White House, but also from advisers within it.

Legislative efforts that significantly impede the President's ability to exercise his supervisory and coordinating authorities or to obtain the views of the appropriate senior advisers violate the separation of powers by undermining the President's ability to exercise his constitutional responsibilities and take care that the laws be faithfully executed. Therefore, the executive branch will construe section 2262 not to abrogate these Presidential prerogatives.

In other words, President Obama is arguing that he has the constitutional authority to appoint advisers to help him carry out his presidential duties and that it is unconstitutional for Congress to try to inhibit this ability. This rationale, on its face, would seem to line up with his previous memorandum about signing statements.

Nevertheless critics contend that Obama chose to ignore Congress"s decree and violated his previous pledge. White House Press Secretary Jay Carney defended President Obama"s position in response to a reporter"s question on the statement, when he said on April 18, 2011:

"He [President Obama] never said he was opposed entirely to signing statements.  I can point you to numerous statements from the campaign where he made clear that every president should retain the right, of course must retain the right, to have signing statements, to raise constitutional concerns and objections with a law passed by Congress that he signed into law. His concern was with what he saw as an abuse of the signing statement by the previous administration. So the positions he took in the signing statements on the budget bill are entirely consistent with that position. You need to retain the right to, as president, to be able to issue those signing statements, but obviously they should not be abused.”

We reached out to two experts on signing statements for their views:

"President Obama used a signing statement to rail against the limitations in the law, but not to say he would not obey it -- nor, as his predecessor almost certainly would have done, did he say he would obey it only to the extent it was compatible with his powers as commander in chief and/or as head of the unitary executive branch,” said Andrew Rudalevige, professor in the Department of Political Science at Dickinson College. "Frankly, the use of title-specific posts in the legislation seems designed to be largely symbolic. Why couldn't an ‘Assistant to the President" advise the President on the same things that the ‘Assistant to the President for Energy and Climate Change" could?”

"I think his objections to the ‘czar" provisions of recent legislation are both consistent to his campaign pledge and his memorandum on the use of the signing statement, and it is clearly consistent with previous presidents -- dating at least to the Reagan administration -- about Congress meddling in executive branch affairs,” said Miami University's Kelley. " In addition, you have to ask what is being violated? There are no persons in any of these positions at present, and probably in most, there never will be.”

It is apparent that President Obama"s most recent signing statement did not involve refusing to obey a congressional mandate so much as it asserted what Obama felt was a constitutionally right guaranteed to the executive branch. This follows the stance outlined in his memo about signing statements as well as the Boston Globe interview. We do not find the controversy surrounding this April 2011 statement persuasive enough to change our stance. That being said, the information collected from the previous update and the conclusion it led to still stands. Therefore we continue to rate this promise as Compromise.