We continue to see posts complaining that President Obama uses signing statements, but it is clear that most of the people making these comments have little knowledge of the history of signing statements or of the context and intent of the seven signing statements issued so far by Obama.
More beyond the fold.
The Congressional Review Service prepared a report, Presidential Signing Statements: Constitutional and Institutional Implications, that serves as an excellent resource for understanding the precedents involved, though it can be somewhat heavy lifting at times. In essence, what you need to know is that while the practice of issuing signing statements goes back a long ways, it wasn't until the Reagan administration that they started to be a problem.
President Reagan initiated this practice in earnest, transforming the signing statement into a mechanism for the assertion of presidential authority and intent. President Reagan issued 250 signing statements, 86 of which (34%) contained provisions objecting to one or more of the statutory provisions signed into law.
President George H. W. Bush continued this practice, issuing 228 signing statements, 107 of which (47%) raised objections.
President Clinton’s conception of presidential power proved to be largely consonant with that of the preceding two administrations. In turn, President Clinton made aggressive use of the signing statement, issuing 381 statements, 70 of which (18%) raised constitutional or legal objections.
President George W. Bush has continued this practice, issuing 152 signing statements, 118 of which (78%) contain some type of challenge or objection. The significant rise in the proportion of constitutional objections made by President Bush is compounded by the fact that these statements are typified by multiple objections, resulting in more than 1,000 challenges to distinct provisions of law.
Signing statements can be crudely divided into four types:
Cheerleading (Wow, aren't we awesome for passing this legislation!)
Clarifying (Um, this doesn't make sense, so here's how I interpret it)
Jurisdictional (you're impinging on an authority that belongs to the executive branch, stop it)
Negating (I don't like this provision or clause and I intend to ignore it. Neener.)
You would think that clarifying signing statements would be pretty rare, but you'd be wrong. Congress puts out some pretty shoddy work. Case in point, Section 802 of the Patriot Act defines domestic terrorism in the following way (emphasis mine):
(5) the term `domestic terrorism' means activities that--
(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;
(B) appear to be intended--
`(i) to intimidate or coerce a civilian population;
`(ii) to influence the policy of a government by intimidation or coercion; or
`(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
`(C) occur primarily within the territorial jurisdiction of the United States.'.
Now, I'm not a lawyer, but I'm willing to bet I could argue "appear to be intended" all day long. As the executive branch is responsible for enforcing the laws passed by Congress, this clause is ripe for clarification, though I'm not sure exactly what language would be effective and appropriate.
With that as backdrop, let's look at Obama's signing statements.
Statement on Signing the American Recovery and Reinvestment Act of 2009
If you needed a clear example of a cheerleading signing statement, there you are.
Statement on Signing the Omnibus Appropriations Act, 2009
Much hay has been made from this signing statement, though I personally don't have a problem with any of it. While Congress may want to check and reverse the growth of presidential authority, some things remain the constitutional prerogative of the president, specifically the power to negotiate treaties. You can ask nicely, you can take away funding (the primary legislative rein over the executive), you can impeach him, but you can't write a law forcing him to specific diplomacy.
As the first of his statements to take exception to the bill before him, this was where people started crying "but he promised no signing statements!" He said nothing of the sort. What he said was that he would not use them as a de facto line item veto and would reserve them for what he considered legitimate assertions of presidential authority.
Statement on Signing the Omnibus Public Land Management Act of 2009
This signing statement is almost all confetti. The last paragraph, however, asserts the president's constitutional authority to make appointments. There shouldn't be any controversy here.
Statement on Signing the Fraud Enforcement and Recovery Act of 2009
Despite the innocuous nature of this signing statement (you can't override executive privilege through legislation), I have a problem with it because of the outlandish assertions of the Bush administration. Yes, executive privilege serves a legitimate function, but we need clear-cut rules and boundaries. Until we have them, this signing statement makes "transparency" basically meaningless.
Statement on Signing the Ronald Reagan Centennial Commission Act
This statement shows Obama's history as a constitutional scholar and purist. He seems determined to reject any transgression into his authority. This one's a non-starter, though, because who really cares if the presence of congressional appointees on the committee to plan a celebration of the 100th anniversary of Ronald Reagan's birth is simply ceremonial?
Statement on Signing the Supplemental Appropriations Act, 2009 (Part I)
Pure fluff.
Statement on Signing the Supplemental Appropriations Act, 2009 (part II)
Again with the "you can't legislate diplomacy." Maybe some civics lessons for Congress?
Love 'em or hate 'em, signing statements are here to stay. Obama is on track to return to the pre-Reagan annual average of about 15, which speaks well to his understanding of their genuine purpose.