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Playing by the Rules

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."

By Dan Froomkin  |  March 10, 2009; 12:09 PM ET
Categories:  Bush Rollback  
Save & Share:  Send E-mail   Facebook   Twitter   Digg   Yahoo Buzz   StumbleUpon   Technorati   Google Buzz   Previous: White House Chat
Next: Quick Takes


Bush's notion that he could use a signing statement as a de facto line item veto was not well founded. What is of a greater concern is what crimes Bush and his administration committed under the aegis of one of his signing statements.

Posted by: fletc3her | March 10, 2009 1:16 PM | Report abuse

Funny how froomiekins cannot explain or point to actual instances of where Bush broke the laws he signed with these signing statements?
Frooms actually points out that no one knows what damage was done when he said this,"the actual effect of Bush's signing statements remains something of a mystery."

Please provide proof that Bush's administration actually went out and committed torture after breaking a congressional law against torture? Please provide specific instances of actual infractions other than Bush expressing his dis-satisfaction with what he was signing from Congress.

Posted by: alutz08 | March 10, 2009 1:25 PM | Report abuse

to all those throughout the country, that slurping sound is Froomkin when he thinks about Obama.

Posted by: whughes1 | March 10, 2009 1:45 PM | Report abuse

So in other words, Obama will keep being the Unitary Executive with the power of life and death over each and every American, he will just use it for 'good'. Isn't that what Mao said too?

Posted by: davidbn27 | March 10, 2009 1:50 PM | Report abuse


No congressional law against torture is necessary. The United States is a signatory of the Geneva Conventions which clearly prohibit the torture, renditions, holding without proper notification, etc. that Bush BRAGGED about doing.

He's a war criminal. To alutz - since Hitler didn't break German laws - was he less evil?

The GOP - the true evil.

Posted by: bflorhodes | March 10, 2009 1:51 PM | Report abuse

Obama is smart. His approach to scientific matters is quite refreshing after the ignorant rantings of the Bush administration. There is nothing wrong with disagreeing with scientific findings. However, to force scientific findings based on political viewpoints is dangerous. We still have not come to grips with the intelligence community being forced to support Bush on Iraq WMDs.

There can be a reasonable and open debate on global warming. However, like paid expert witnesses in a court room, money still talks. People are making big money to refute the best scientific evidence available. (The polar ice caps are still melting in historic amounts.) Big money should be either taxed or made to pay big so that there is much less money available to push agendas that are extreme.

Posted by: EarlC | March 10, 2009 2:17 PM | Report abuse

"explain or point to actual instances"
"Please provide proof"
"Please provide specific instances"

Kinda hard to do at this point since the GOP is doing everything in its power to block the investigations that could yield proof. In fact I'd argue that the ferocity with which your Republican heroes oppose ALL reviews of the Bush presidency is proof enough that illegal acts were committed. After all, if they did nothing wrong then they should have nothing to hide, right? Or does the modern conservative mind only apply that standard to private citizens being wiretapped?

Posted by: BigTunaTim | March 10, 2009 2:24 PM | Report abuse

Me, I'm waiting for the War Crimes Trials.

Decisions to ignore the Rule of Law by the Red Bushies should have consequences.

Jail is but the least of it.

Posted by: WillSeattle | March 10, 2009 3:29 PM | Report abuse

alutz08 wrote: "Please provide proof that Bush's administration actually went out and committed torture after breaking a congressional law against torture?"

Sure, easy to do.

"The top Bush administration official in charge of deciding whether to bring Guantanamo Bay detainees to trial has concluded that the U.S. military tortured a Saudi national who allegedly planned to participate in the Sept. 11, 2001, attacks, interrogating him with techniques that included sustained isolation, sleep deprivation, nudity and prolonged exposure to cold, leaving him in a "life-threatening condition."

"We tortured [Mohammed al-]Qahtani," said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. "His treatment met the legal definition of torture. And that's why I did not refer the case" for prosecution."

Detainee Tortured, Says U.S. Official
Trial Overseer Cites 'Abusive' Methods Against 9/11 Suspect
By Bob Woodward
Washington Post Staff Writer
Wednesday, January 14, 2009; Page A01

As for whether torture is against the law?

"The United States ratified CAT [the Convention Against Torture and Other Cruel Inhuman And Degrading Treatment] in 1994. By doing so, it became bound to respect the treaty’s prohibitions against torture and other forms of ill treatment, to take effective measures to prevent and punish such conduct, and to periodically report on its compliance with the treaty to the Committee Against Torture – a committee of experts established by the treaty."

In addition, Torture is prohibited under 18 U.S.C. § 2340.

Got that? Bush Administration admits torture, the laws ban torture.

Posted by: steveh46 | March 10, 2009 3:33 PM | Report abuse

I would like to seen signing statements completely done away with. Signing statements are not laws. If the executive branch thinks a particular provision is unconstitutional isn't that for the judicial branch of government to decide?

Congress needs the power to force the Justice Department to enforce the laws or they need their own legal branch to sue the Executive branch when the executive branch fails to enforce the law as is required by the constitution and the oath of office. Congress clearly needs some levers it can use to enforce the law
because the pantywaists that are in there surely will not take on any president on their own.

Posted by: troyd2009 | March 10, 2009 4:34 PM | Report abuse

"Please provide proof that Bush's administration actually went out and committed torture after breaking a congressional law against torture?"

We have plenty, and straight from the horses' mouths. Where have you been? You want more? Let the war crimes trials begin!

Posted by: fzdybel | March 10, 2009 6:19 PM | Report abuse

The story repeats the myth that President Bush's signing statements were qualitatively different from those of his predecessors. In fact, President Clinton did the same thing. His signing statement of the Antiterrorism and Effective Death Penalty Act of 1996 sought to sweep away a key reform of the bill. Fortunately, the Supreme Court swept away the signing statement and upheld the law as written.

Posted by: kscheidegger | March 11, 2009 11:07 AM | Report abuse

Doing away with signing statements is a bad idea. Forcing the courts to decide the constitutionality of every single piece of legislation Congress passes and the POTUS signs would clog up the district courts to the point of gridlock. POTUS signs the bills after the AG's Office of Legal Counsel gives their thumbs up. Since Prez Obama has staffed that office with attorneys rather than graduates of Liberty University's School of God's Laws, I trust that the right thing is being done. Our last Prez wasn't an attorney, just a doofus.

Posted by: cdnunn | March 12, 2009 3:54 PM | Report abuse

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