Playing by the Rules

By Dan Froomkin
12:09 PM ET, 03/10/2009

Former president George W. Bush made up his own rules as he went along.

Two of the most vivid examples of this were his repeated suppression and distortion of scientific findings when they conflicted with his political goals and his unprecedented use of "signing statements" to defy Congress and unilaterally reject duly enacted legislation he disagreed with.

In a speech yesterday, President Obama announced that he was removing barriers Bush had imposed on stem-cell research and reasserting the role of science and the scientific process in the White House's policy-making process.

But it was in a less-heralded action -- his issuing of a memo that outlined his approach to signing statements and essentially suspended all of Bush's -- that Obama made an even more significant break with his predecessor. Because while the actual effect of Bush's signing statements remains something of a mystery, they were perhaps the most blatant example of Bush's theory of presidential unilateralism.

In his memo, Obama chose not to ban signing statements per se -- which could have been a bit of an overreaction -- but rather said he would restore them to their traditional, utterly unexceptional role.

Before Bush, signing statements were sometimes used to assert narrowly defined Constitutional concerns about small, specific portions of legislation that weren't worth vetoing a whole bill over. More often, they were used to provide guidance to the agencies charged with enforcing the legislation.

By contrast, Bush -- or more accurately, former vice president Dick Cheney's legal adviser and chief of staff, David S. Addington -- used signing statements to reject major elements of legislation. And this was done with vague language based on bizarre and utterly untested legal theories. A typical admonition was that the executive branch would "construe" key provisions that troubled it "in a manner consistent with the President's constitutional authority to supervise the unitary executive branch."

By contrast, Obama declared in his memo yesterday that, "signing statements should not be used to suggest that the President will disregard statutory requirements on the basis of policy disagreements."

He vowed to adhere to several principles, including: "I will act with caution and restraint, based only on interpretations of the Constitution that are well-founded" and, "I will ensure that signing statements identify my constitutional concerns about a statutory provision with sufficient specificity to make clear the nature and basis of the constitutional objection."

Appropriately enough, the story about Obama's memo was broken on the Web by Charlie Savage, who as a Boston Globe reporter led a lonely crusade to bring the signing statements to the public's attention. Although his dogged and groundbreaking coverage was routinely ignored by larger media organizations, Savage won a Pulitzer Prize for his work -- and now works at the New York Times.

Savage writes this morning on page A12 of the Times: "Calling into question the legitimacy of all the signing statements that former President George W. Bush used to challenge new laws, President Obama ordered executive officials on Monday 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 intended to use signing statements himself if Congress sent him legislation with provisions he decided were unconstitutional. He promised to take a modest approach when using the statements, legal documents issued by a president the day he signs bills into law that instruct executive officials how to put the statutes into effect....

"Mr. Obama’s directions were the latest step in his administration’s effort to deal with a series of legal and policy disputes it inherited from the Bush administration...

"Mr. Bush’s use of signing statements led to fierce controversy. He frequently used them to declare that provisions in the bills he was signing were unconstitutional constraints on executive power, and that the laws did not need to be enforced or obeyed as written. The laws he challenged included a ban on torture and requirements that Congress be given detailed reports about how the Justice Department was using the counterterrorism powers in the USA Patriot Act....

"Mr. Bush, who broke all records, us[ed] signing statements to challenge about 1,200 sections of bills 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 expansive view of the president’s power, as commander in chief, to take actions he believes necessary, regardless of what Congress says in legislation."

For more background on signing statements, read some of my many columns about them over the years.

Michael D. Shear writes in The Washington Post: "Former Bush administration officials said they could detect little difference between Obama's promise and Bush's standards for issuing signing statements.

"'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.'"

But that's disingenuous at best.

Obama Press Secretary Robert Gibbs told reporters that the president wants to "to go back to what has been previously done" rather than "ask that laws be disallowed simply by executive fiat."

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