News About Signing Statements
Archive: 2009 and 2010
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On October 7, 2010, the White House Press Office released President Obama's signing statement for H.R. 2701, the "Intelligence Authorization Act for Fiscal Year 2010." The full text of the signing statement is available here and at the White House website.
This is Obama's eleventh signing statement.
John Elwood, who served as Deputy Assistant Attorney General during the Bush administration and who testified to the House Judiciary Committee in 2007 concerning President Bush's use of signing statements, has posted remarks about this new signing statement from the Obama adminstration. Mr. Elwood's comments appear on the legal blog, The Volokh Conspiracy
Kelley, Christopher S. , and Marshall, Bryan W., Going it Alone: The Politics of Signing Statements from Reagan to Bush II, Social Science Quarterly (January, 2010)
Charlie Savage, winner of the Pulitzer Prize for his reporting on George W. Bush's use of signing statements, has published an article suggesting that Obama's approach to signing statements "will make it harder to keep track of which statutes the White House believes it can disregard, or to compare the number of laws challenged by President Obama with former President George W. Bush’s record."
The article includes a quote by Ben LaBolt, a White House spokesman, indicating that when the Obama administration voices objections to a bill prior to its passage, it may conclude it's not necessary to duplicate those views in a signing statement.
The article, "Obama Takes New Route to Opposing Parts of Laws," is available on the NYT website.
N.B.: The following is only a quantitative analysis of Obama's use of signing statements from his inauguration through December 31, 2009. Readers should remember that the controversy surrounding George W. Bush's signing statements was as much about how Bush used signing statements as about how many he issued. In particular, the Bush signing statements were expressly founded on a controversial legal theory called the "unitary executive." As advanced by many Bush officials, the unitary executive theory was regarded by many legal scholars and journalists as an expansion of presidential authority. Some argued the theory was used both to improperly alter the balance of power between Congress and the Executive branch and to embed a vastly expanded view of presidential power in the popular understanding and legal framework.
Early in his administration, Obama issued a memorandum outlining his views on the use -- and abuse -- of signing statements. I look forward to the qualitative analyses of Obama's use of signing statements that are sure to appear in the next year. I hope that scholars and journalists will address: (a) whether Obama has adhered to the principles set forth in his March 9 memorandum; (b) how Obama's use of signing statements compares to previous administrations; and (c) whether Obama's signing statements comport with defensible views of the balance of power among the three branches of government.
The quantitative analysis follows:
Obama: Between his inauguration and December 31, 2009, President Obama issued eight signing statements for seven Congressional enactments. Three of Obama's signing statements were rhetorical. In his five constitutional signing statements, Obama objected to 14 named provisions. The statements also contained three references to unnamed provisions. In total, Obama raised 17 objections.
Bush: Between his inauguration and December 31, 2001, President Bush issued 24 signing statements for 24 Congressional enactments. Ten of Bush's signing statements were rhetorical. In his 14 constitutional signing statements, Bush objected to 17 named provisions. The statements also contained six references to unnamed provisions. In total, Bush raised 23 constitutional objections.
Signing Statements and Totals
* I counted each objection to a named section within an act as one objection. If an objection named both a section and a subsection within the same section, I did not count the subsection as a separate objection.
** A single sentence or paragraph within a signing statement that objected to "several," "numerous," or "certain" provisions of an act was counted as a single objection.
Charlie Savage, winner of the Pulitzer Prize for his coverage of George W. Bush's use of signing statements, has published an article concerning Obama's use of signing statements and Congressional reactions: Obama’s Embrace of a Bush Tactic Riles Congress (New York Times, August 8, 2009)
7/21/2009 - Four Democratic members of the House of Representatives (Barney Frank (Mass.), David Obey (Wis.), Nita Lowey (N.Y.), and Gregory Meeks (N.Y.)) have sent a letter to President Obama concerning his use of signing statements.
Associated Press: Democrats challenge Obama signing statement
CQ Politics: Obama Following Bush Example, Democrats Complain
On November 11, 2009, the White House press office released President Obama's signing statement for S. 475, the "Military Spouses Residency Relief Act." This is Obama's eighth signing statement and his third rhetorical signing statement.
July 14, 2009: Senate confirmation hearings for Judge Sonia Sotomayor for appointment to the Supreme Court
Los Angeles Times: Part 2 of the transcript of the hearings - including the exchange between Senator Feinstein and Judge Sotomayor concerning signing statements
Washington Post: Transcript of Senator Feinstein's exchange with Judge Sotomayor concerning signing statements
The Hill newspaper reports that the House of Representatives has passed an amendment seeking "to nullify Obama's signing statement by withholding funds from any agreement involving the Treasury Department that doesn't follow the conditions set out in the supplemental bill." The full article from The Hill is here.
House Amendment 311 to H.R. 3081 (Department of State, Foreign Operations, and Related Programs Appropriations Act, 2010) provides:
None of the funds made available in this Act may be used by the Secretary of the Treasury to negotiate an agreement in contravention of section 1626 or 1627 of the International Financial Institutions Act, section 1112 or 1403 of the Supplemental Appropriations Act, 2009 (Public Law 111–32), or the provision added to the end of title XVI of the International Financial Institutions Act by section 1404 of the Supplemental Appropriations Act, 2009 (Public Law 111–32).
Section 7092 of H.R. 3081, as passed by the House of Representatives (source: GPO, July 12, 2009) (digitally signed by the GPO -- 200 pp.).
On June 24, 2009, President Obama signed H.R. 2346, the "Supplemental Appropriations Act, 2009" (P.L. 111-32).
Also on June 24, 2009, the White House Press Office released a document entitled "Statement from the President on signing the Supplemental Appropriations Act." It is available on the White House website. The Office of the Federal Register's (OFR's) Compilation of Presidential Documents has classified the document as a signing statement. See, Daily Comp. Pres. Docs., 2009 DCPD No. 00501 (PDF from the OFR), or Daily Comp. Pres. Docs., 2009 DCPD No. 00501 (HTML text at the OFR). This signing statement is rhetorical and raises no constitutional issues relating to the law to which it pertains.
On June 26, 2009, the White House released a second signing statement for the Supplemental Appropriations Act, 2009. The full text of the document is available on the White House website and on this website. See, Daily Comp. Pres. Docs., 2009 DCPD No. 00512 (PDF from the OFR), or Daily Comp. Pres. Docs., 2009 DCPD No. 00512 (HTML text at the OFR). This signing statement raises constitutional concerns about five specified provisions of law in P.L. 111-32.
These are, respectively, President Obama's sixth and seventh signing statements. To see Obama's previous signing statements, click here.
John Elwood, who testified to Congress on behalf of the Department of Justice concerning signing statements issued by George W. Bush, has posted a short but significant comment on Barack Obama's use of signing statements. Mr. Elwood's commentary appears on the legal blog, The Volokh Conspiracy.
At the time of his 2007 statement to the House Judiciary Committee concerning signing statements, Mr. Elwood was Deputy Assistant Attorney General in the Office of Legal Counsel of the U.S. Justice Department. Mr. Elwood has consistently provided strong, reasoned, and non-sensationalist defenses of signing statements.
On June 2, 2009, the White House released President Obama's signing statement for H.R. 131. The full text of the signing statement is available on the White House website and on this website. It is also available from the Office of the Federal Register's Daily Compilation of Presidential Documents.
This signing statement raises constitutional issues.
It is President Obama's fifth signing statement. To see Obama's previous signing statements, click here.
On May 20, 2009, the White House released President Obama's signing statement for S. 386, the "Fraud Enforcement and Recovery Act of 2009." The full text is available on the White House website or on this website. It is also available from the Office of the Federal Register's Daily Compilation of Presidential Documents.
This signing statement raises a constitutional objection to a provision of S. 386.
It is President Obama's fourth signing statement. To see Obama's previous signing statements, click here.
On April 23, 2009, Sen. Arlen Specter introduced S. 875, a bill to "regulate the judicial use of presidential signing statements in the interpretation of Acts of Congress." The full text of the GPO print of the bill, as introduced, is available here. The bill has two co-sponsors: Jon Tester (D-MT) and Chuck Grassley (R-IA). The bill was referred to the Senate Committee on the Judiciary on the same day it was introduced.
Senator Specter's remarks upon introducing the bill are available here (source: GPO print, Congressional Record, pp. S4676 to 4678). At the time Senator Specter introduced the bill, he was a Republican. He has since announced that he is leaving the Republican Party to join the Democratic Party.
Senator Specter also introduced bills concerning presidential signing statements in the 110th and 109th Congresses. For information about the bill (S. 3731) that Specter introduced in July of 2006, go here and select the item titled "7/28/2006 - Sen. Specter introduces bill concerning signing statements." For information about the bill (S. 1747) that Specter introduced in June of 2007, go here and select the item titled "7/29/2007 - Sen. Specter introduces bill concerning signing statements."
On March 30, 2009, the White House released President Obama's signing statement for H.R. 146, the "Omnibus Public Land Management Act of 2009." The full text is available on the White House website or on this website. It is also available from the OFR's Daily Compilation of Presidential Documents.
This signing statement raises a constitutional objection to a provision of H.R. 146.
It is President Obama's third signing statement. To see the previous two signing statements, click here.
On March 11, 2009, President Obama issued a signing statement for the Omnibus Appropriations Act, 2009 (P.L. 111-8). The full text of the signing statement is available on the White House website or on this website. It is also available from the Office of the Federal Register's Daily Compilation of Presidential Documents in text format or in PDF format.
This is President Obama's second signing statement. The first signing statement, which was for H.R. 1, the American Recovery and Reinvestment Act of 2009, was a rhetorical or ceremonial statement.
The new signing statement for H.R. 1105 raises constitutional objections.
On March 9, 2009, the White House released a Memorandum for the Heads of Executive Departments and Agencies on the Subject of Presidential Signing Statements. The full text of the memo is available on the White House website, or in PDF format from the Office of the Federal Register's Daily Compilation of Presidential Documents (DCPD), or in plain text from the DCPD.
The memo directs executive branch departments and agencies to seek the advice of the Attorney General before relying on signing statements issued prior to March 9, 2009, as the basis for disregarding or refusing to comply with any provision of a statute.
The memo also describes legitimate uses of signing statements and sets out principles that the administration will adhere to in order to avoid abusive use of signing statements.
Notable news articles and commentary concerning the memorandum:
New York Times: Obama Looks to Limit Impact of Tactic Bush Used to Sidestep New Laws
Chicago Tribune: Obama Rejects Bush Signing Statements
Washington Post: Obama Pulls Back From Signing Statements
Associated Press: Obama orders review of Bush's signing statements
Boston Globe: Obama rebukes Bush on signing statements
CNN: Obama moves to limit impact of Bush signing statements
CBS News Hotsheet: Maneuvering Room On Signing Statements
US News & World Report: Obama Rolls Back Unconstitutional George W. Bush Signing Statement Policy
On February 23, 2009, the Daily Compilation of Presidential Documents (DCPD) published President Obama's statement on signing H.R. 1, the American Recovery and Reinvestment Act of 2009 (Public Law 111-5).
The DCPD has categorized the document, which is dated February 17, as a bill signing statement. You can read the DCPD publication of the signing statement here (plain text) or here (PDF). As of this writing, I cannot locate this signing statement on the White House website.
It is a rhetorical signing statement.
Wednesday, February 11th, 2009 at 5:09 pm
Statement of President Barack Obama on Signing the DTV Bill
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release February 11, 2009
WASHINGTON – Today, President Barack Obama signed S.352, a bill to postpone the DTV transition date to June 12th to allow for more time for the American consumers to prepare for the switch from analog television.
"During these challenging economic times, the needs of American consumers are a top priority of my administration. This law, which was crafted in a bipartisan way and passed overwhelmingly in the House and Senate, ensures that our citizens will have more time to prepare for the conversion. Millions of Americans, including those in our most vulnerable communities, would have been left in the dark if the conversion had gone on as planned, and this solution is an important step forward as we work to get the nation ready for digital TV. My administration will continue to work with leaders in Congress, broadcasters, consumer groups and the telecommunications industry to improve the information and assistance available to our citizens in advance of June 12."
I called the White House Press Office, asked how this document would be reported to the Daily Compilation of Presidential Documents (DCPD), and was told that the material in quotations in the press release was a signing statement. I specifically asked whether the quoted language would be reported as bill signing remarks or a bill signing statement, because the document is ambiguous and has features of both. The Press Office's response was clear: the material in quotations is a signing statement. Therefore, I reported the material as a signing statement on this website and its RSS feed, cautioning that the DCPD had not yet categorized the document.
During the Bush administration, the Office of the Federal Register (OFR) published both signing statements and bill signing remarks under the heading "Bill Signings." On February 19, 2009, the DCPD published the quoted material in the February 11 press release under the heading "Statements by the President." The DCPD print is available here (plain text) or here (PDF version). Thus, the OFR is not treating the February 11 materials as a signing statement.
The DCPD also categorizes the material as a presidential statement on Congressional passage of the DTV Delay Act, though the White House press release labels the material as President Obama's statement on signing the DTV bill.
On February 20, I spoke with an editor at the OFR. The DCPD classified the February 11 document as a statement upon Congressional passage because the OFR has not received a written statement from the White House. This was the OFR's editorial standard for classifying documents for the Weekly Compilation of Presidential Documents during the Bush administration, and the same standard is being applied to the DCPD during the Obama administration.
All of George W. Bush's signing statements were initially posted on the White House website in the form of press releases, and many of them were titled like the February 11 press release above. Headlines for press releases announcing a signing statement from the Bush White House took often this form: "President Bush's statement upon signing the [name of act subjected to signing statement]." For just a few examples, please see signing statements 2008-03, 2007-03, 2006-03, 2006-06, 2006-08 from the Bush administration.
I called the White House Press Office again on February 20 and spoke with spokesperson Amy Brundage. She explained that the February 11 document was issued in this format because President Obama made a statement about the law that he was signing, and there was no public signing ceremony. She declined to confirm or deny that the material is a signing statement.
Because neither the White House Press Office nor the OFR has categorized the February 11 press release, or any part of it, as a signing statement, I am concluding that: (a) the Obama administration was unaware that the language it used to title the February 11 press release was identical to language that the Bush White House often used to signal the issuance of a signing statement; and (b) the press office intended to make President Obama's remarks on signing the bill available to the public, and did not intend to signal issuance of a signing statement.
I have altered my reports and am treating the document as if it is not a signing statement.
On January 13, 2009, the House Judiciary Committee released a report containing "47 separate recommendations designed to restore the traditional checks and balances of our constitutional system."
The 487-page report devotes a section to signing statements under the heading "Misuse of Executive Branch Authority" on pages 187-189.
It presents findings concerning abuse of signing statements during the Bush administration at pages 203 and 204. And, finally, it presents this finding, on page 285:
The President should end abuse of presidential signing statements. President Obama should fulfill his pledge that he will “not use signing statements to nullify or undermine congressional instructions as enacted into law” as has occurred under the Bush Administration.
He should also make clear that, despite his predecessor’s signing statements, he intends to fully execute existing laws.
The October 2008 issue of The Third Branch, the official newsletter of the federal judiciary, has published an interview with H. Thomas Wells, Jr., President of the American Bar Association, which includes this exchange:
Question: If you had one piece of advice on matters that impact the legal community to offer the incoming White House Administration, what would it be?
Answer: In the October issue of the ABA Journal, Thomas Susman of the ABA’s Government Affairs Office and I jointly signed a letter to the next President—we intentionally did it before we knew who the next President would be—making several suggestions on things that he could do immediately after his inauguration to improve, not only the legal community but indeed the rule of law.
We intentionally tried to look at things that would not require legislation: judicial nominations and confirmations; doing something with our broken immigration system; rejecting the use of Presidential signing statements; and protecting the attorney-client privilege.
(emphasis added). The whole article is here.
The entire memorandum to the next president from Wells and Susman appeared in the October issue of the ABA Journal and is available here. The memo describes an abusive use of signing statements and calls upon the next president to reject "this constitutionally suspect use of signing statements" as "contrary to the rule of law and our constitutional system of separation of powers."