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January 8, 2010
The Obama administration is lowering the volume in a long-running argument between Congress and the executive branch over when, if ever, a president has the power to bypass federal statutes he has signed into law.
Legal scholars said the administration's new approach, which avoids repeating claims of executive power that the White House has previously voiced, could avoid setting off fights with lawmakers. But the approach 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.
In Mr. Obama's first months in office last year, he followed recent precedent and frequently issued statements, when signing bills into law, that the executive branch could disregard provisions that he considered unconstitutional restraints on executive power.
But Mr. Obama has not issued a signing statement since last summer, when one claim set off a bipartisan uproar in Congress. And the administration has decided that Mr. Obama will sometimes sign bills containing provisions it deems problematic without issuing a signing statement that challenges those sections.
Still, the administration will consider itself free to disregard new laws it considers unconstitutional, especially in cases where it has previously voiced objections elsewhere, officials said.
The White House disclosed its shift when asked why it had not put out a signing statement last month, when Mr. Obama signed a $447 billion spending bill for 2010. It contained several provisions that restricted executive power in ways that the administration had previously asserted were unconstitutional — including in signing statements attached to similar bills and in policy statements it issued about the spending bill as lawmakers drew it up.
"The administration's views about certain provisions in the omnibus spending bill had previously been publicly communicated," said Ben LaBolt, a White House spokesman, "so it wasn't necessary to duplicate them in a signing statement."
Since the 19th century, presidents have occasionally used signing statements to declare that parts of a bill were unconstitutional and need not be enforced or obeyed as written. But the tactic was rare until the second term of President Ronald Reagan, whose legal team developed a strategy of issuing the statements more frequently to increase presidential power.
Reagan's successors continued that approach. And the practice escalated again under Mr. Bush, who used it to advance expansive theories of executive power. He challenged about 1,200 sections of bills — more than all predecessors combined — including a ban on torture and oversight provisions of the USA Patriot Act.
Mr. Bush's assertive use of the tactic set off a national debate over its propriety. The American Bar Association declared that signing statements "undermine the rule of law and our constitutional system of separation of powers," and argued that the Constitution gave presidents only two choices: veto a bill, or sign it and obey all of it.
But other scholars said the tactic was appropriate if a president cited only mainstream legal theories. Mr. Obama, whose advisers sided with the latter camp, has characterized Mr. Bush's use of signing statements as an abuse and pledged greater restraint.
Mr. Obama nevertheless challenged dozens of provisions early last year. The last time was in June, when his claim that he could disobey a new law requiring officials to push the World Bank and the International Monetary Fund to adopt certain policies angered Congress. The White House sought to reassure lawmakers that it intended to take those negotiating positions anyway and was merely noting its view that Congress cannot control foreign negotiations. Many lawmakers rejected that theory, and the House quickly voted 429 to 2 to bar officials from disobeying the restrictions.
Although the recent spending bill received no signing statement, it contained a similar provision about World Trade Organization negotiations, as well as several other types the administration had previously challenged. The White House issued several "statements of administration policy" warning that those provisions raised constitutional concerns while the legislation was pending, but Congress did not change them.
Representative Barney Frank, Democrat of Massachusetts, who led last summer's backlash, said the White House risked losing Congressional support for international economic organizations. Mr. Frank also said it was "outrageous" to contend that if Congress disagreed with the administration's opinion that a provision would be unconstitutional, the president could sign the bill and disobey it.
"They have a legitimate right to tell us their constitutional concerns — that's different from having a signing statement," Mr. Frank said. "Anyone who makes the argument that 'once we have told you we have constitutional concerns and then you pass it anyway, that justifies us in ignoring it' — that is a constitutional violation. Those play very different roles and you can't bootstrap one into the other."
But Peter M. Shane, an Ohio State University law professor, praised the approach as a step toward a return to the "normalcy" of how presidents used signing statements through Reagan's first term. Mr. Shane has previously criticized the administration over its frequent early use of the device.
Still, Jack L. Goldsmith, a Harvard law professor who led the Justice Department's Office of Legal Counsel in 2003-04, argued that an approach of issuing fewer signing statements would "not be terribly consequential" in practice because the executive branch could still override a provision that its legal team later pronounces unconstitutional.
Last year the Obama administration disregarded a statute that forbid State Department officials to attend United Nations meetings led by nations deemed state sponsors of terrorism. Congress has included that restriction in several recent bills.
When Mr. Bush signed one such bill, he issued a signing statement instructing officials to view the law as merely advisory, and they attended at least one such meeting on his watch. By contrast, when Mr. Obama signed another bill with an identical provision, he did not specifically single it out for challenge. But his administration later obtained an Office of Legal Counsel opinion pronouncing it unconstitutional, and officials continued to attend such meetings.
Unlike signing statements, opinions from the Office of Legal Counsel are often secret. Mr. Goldsmith said the administration's approach of issuing fewer signing statements would mean "somewhat less accountability."
"I think it's a bad development if they are not going to highlight for the nation in all these new statutes where they think there are problems," he said.
The White House, however, said it had given clear public notice about its views.
"Each piece of legislation," Mr. LaBolt said, "is considered on an individual basis to determine whether a signing statement is necessary, and communications regarding the administration's views on legislation such as Statements of Administration Policy will continue to be publicly available for Congress and all Americans to evaluate."
