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Don’t Rely on Bush’s Signing Statements, Obama Orders


Don’t Rely on Bush’s Signing Statements, Obama Orders
By Charlie Savage | NYTimes

Calling into question the legitimacy of all the signing statements that former President George W. Bush used to challenge new laws, President Obama on Monday ordered executive officials to consult with Attorney General Eric H. Holder Jr. before relying on any of them to bypass a statute.

But Mr. Obama also signaled that he intends to use signing statements himself if Congress sends him legislation that has provisions he decides are unconstitutional. He pledged to use a modest approach when doing so, but said there was a role for the practice if used appropriately.

“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,” Mr. Obama wrote in a memorandum to the heads of all departments and agencies in the executive branch. The document was obtained by The New York Times.

Mr. Obama’s directions marked the latest step in his administration’s effort to deal with a series of legal and policy disputes it inherited from the Bush administration. It came the same day that Mr. Obama lifted restrictions Mr. Bush had placed on federal financing for research that uses embryonic stem cells.

Mr. Bush’s use of signing statements — official legal documents issued by a president the day he signs bills into law, instructing executive officials how to implement the statutes — led to fierce controversy.

Mr. Bush frequently used signing statements to declare that provisions in the bills he was signing were unconstitutional constraints on executive power, claiming that the laws did not need to be enforced or obeyed as written. The laws he challenged included a torture ban and requirements that Congress be given detailed reports about how the Justice Department was using the counter-terrorism powers in the USA Patriot Act.

Dating back to the 19th century, presidents have occasionally signed a bill while declaring that one or more provisions were unconstitutional. Presidents began doing so more frequently starting with the Reagan administration.

But Mr. Bush broke all records, using signing statements to challenge about 1,200 bill sections over his eight years in office — about twice the number challenged by all previous presidents combined, according to data compiled by Christopher Kelley, a political science professor at Miami University in Ohio.

Many of Mr. Bush’s challenges were based on an aggressive view of the president’s power, as commander-in-chief, to take actions he believed necessary to protect national security regardless of what Congress said in federal statutes.

His use of signing statements prompted widespread debate. The American Bar Association declared that such signing statements were “contrary to the rule of law and our constitutional separation of powers,” calling on Mr. Bush and all future presidents to stop using them and to return to a system of either signing a bill and then enforcing all of it, or vetoing the bill and giving Congress a chance to override that veto.

But the Bush administration defended its use of signing statements as lawful and appropriate. And other legal scholars, while critical of Mr. Bush’s use of the device, said that the bar association’s view was too extreme because Congress sometimes passed important legislation that had minor constitutional flaws. They said it would be impractical to expect a president to veto the entire bill in such instances.

Mr. Obama’s move may be geared to that kind of legislation. He issued the instructions as Congress is finalizing a huge omnibus spending bill filled with provisions that could affect presidential power, like requirements to submit reports to Congress or to get the approval of a committee before taking certain actions.

In his memorandum, Mr. Obama wrote: “Particularly since omnibus bills have become prevalent, signing statements have often been used to ensure that concerns about the constitutionality of discrete statutory provisions do not require a veto of the entire legislation.”

Mr. Obama’s policy directive was consistent with what he said during the 2008 presidential campaign. Responding to a Boston Globe questionnaire about executive power, he criticized Mr. Bush’s aggressive use of signing statements as an abuse, but also said that he would use them too, albeit in a more restrained manner.

By contrast, Mr. Obama’s rival in the general election, Republican Senator John McCain of Arizona, pledged never to issue a signing statement if elected. Mr. McCain was the primary sponsor of the 2005 torture ban that Mr. Bush challenged after signing.

In his directive, Mr. Obama said that any signing statement issued before his presidency should be viewed with doubt, placing an asterisk beside all of those issued by Mr. Bush and other former presidents.

“To ensure that all signing statements previously issue are followed only when consistent with these principles, executive branch departments and agencies are directed to seek the advice of the Attorney General before relying on signing statements issued prior to the date of this memorandum as the basis for disregarding, or otherwise refusing to comply with, and provision of a statute,” he wrote.

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