Obama Pulls Back from Signing Statements
Updated 5:51 p.m.
By Michael D. Shear
President Obama promised to pull back dramatically from a controversial tactic used by his predecessor, saying that he will rarely seek to impose his own interpretation on pending legislation with a statement when he signs it, White House officials said.
In a memorandum issued yesterday, he also ordered executive branch officials to consult with the attorney general before assuming that hundreds of President Bush's past official statements on legislation should remain in force.
"There is no doubt that the practice of issuing such statements can be abused," Obama said in the memo. "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."
The memo represents a rebuke of Bush, who dramatically increased the use of signing statements as a way of instructing officials in his government about how to implement legislation. The issue became highly controversial as critics accused Bush of using the previously little-known tactic as a way of subverting the intent of Congress, especially when it came to the war against terrorism, torture and domestic surveillance.
But longtime Bush critics hammered Obama for failing to put a complete end to the practice. The American Bar Association in 2006 called signing statements "contrary to the rule of law."
"There should be a clean break with the past on this," said Christopher Anders, the senior legislative counsel for the American Civil Liberties Union. "The president shouldn't be asserting -- as President Bush did -- wholesale objections to entire sections of statutes and claiming some kind of presidential authority to ignore them."
Anders said his group appreciates Obama's pledge to reduce the number of signing statements. But he said the danger still exists that the new president will use the tactic to ignore the will of the legislature.
"It's not enough to take any president at his or her word on an issue like this," Anders said.
And former Bush administration officials said they could detect little difference between Obama's new promise and the standards the former president used when issuing signing statements on legislation.
"This has been a standard practice going back decades. It's just when President Bush did it, his critics pounced," said former Bush spokesman Ari Fleischer. "They're going to do the same thing, whenever they feel like it."
In the memo, Obama pledged to use signing statements sparingly and to be bound by "interpretations of the Constitution that are well founded." And he promised to avoid signing statements by fixing constitutional problems before they reach his desk.
But the new White House stopped short of invalidating all of the signing statements that Bush issued during his eight years in office. The memo, first reported by the New York Times, says agencies should seek the attorney general's advice before enforceing the prior statements.
A former Bush lawyer said that instruction is no different than what the 43rd president gave upon taking office. "You couldn't just rely on President Clinton's statements," the lawyer said. "You would have to go to the Department of Justice, the White House to make sure that Bush agreed. That was just standard procedure."
Both presidential candidates last year hammered Bush for the practice. Obama accused Bush of attempting to change the meaning of legislation and of trying to avoid enforcing statutes that he didn't agree with. But Obama did not pledge to get rid of the practice, saying at the time that its limited use could help to protect a president's "constitutional prerogatives" once in office.
That contrasted sharply with his Republican opponent, Sen. John McCain (Ariz.), who said during the campaign that he would never issue a signing statement as president. "Never, never, never, never. If I disagree with a law that passed, I'll veto it," he told The Washington Post.
Now that Obama is in office, the memo suggests that he will make good on his promise from the campaign. Press Secretary Robert Gibbs told reporters that Obama wants to return the practice to its original intent.
"This president will use signing statements in order to go back to what has been previously done, and that is to enumerate constitutional problems that either the Justice Department or the -- our legislative counsel here see as a potential problem through their reading, but not ask that laws be disallowed simply by executive fiat," Gibbs said.
Gibbs accused the Bush administration of issuing "hundreds and hundreds" of signing statements whose intent was to "disregard portions of legislation or the intent of Congress."
But Gibbs said signing statements -- which are attached to laws once the president signs a bill -- can be a useful tool to deal with constitutional questions about a small provision of a much larger bill.
Posted at 3:24 PM ET on Mar 9, 2009
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