I hate legalese; when I try reading it, my eyes go out of focus, and my head starts to spin.
Then I get a headache.
But I was reading Ben Smith’s blog on Politico about the President’s statement on signing statements, and I just had to tackle the double-talk.
A “signing statement” is a President questioning the Constitutionality of items within the bill, but signing it into law anyway, with the understanding that the Executive will not act on those items that it believes to be unconstitutional, or that may bring about an unconstitutional situation, rather than vetoing the bill over what the Administration’s memo described as “the constitutionality of discrete statutory provisions” within it.
The memo issued by the Obama Administration described the practice of issuing signing statements as being easily abusable, but in the very same paragraph reserves the right to use them at will.
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.
As opposed to what exactly?
Two hundred years worth of Presidents ahead of Barack Obama used them when they thought it was inappropriate to do it?
Constitutional signing statements should not be used to suggest that the President will disregard statutory requirements on the basis of policy disagreements.
So, what Mr. Obama is saying here is that he will on occasion sign a bill into law in spite of his concern over the Constitutionality of part or parts of the bill, and that he will express his concern over the item(s) within that law that he considers of questionable Constitutionality via the abusable practice of issuing a signing statement, but that doing all of that does NOT mean that he will NOT enforce what he considers to be an unconstitutional statute?
This puts him directly at odds not only with the Bush Administration’s take on signing statements, but with long-standing tradition, as detailed in this memo from Bernard N. Nussbaum, General Counsel to President Clinton:
This memorandum provides you with an analysis of the legal significance of Presidential signing statements. It is addressed to the questions that have been raised about the usefulness or validity of a such statements. We believe that such statements may on appropriate occasions perform useful and legally significant functions. These functions include (1) explaining to the public, and particularly to constituencies interested in the bill, what the President believes to be the likely effects of its adoption, (2) directing subordinate officers within the Executive Branch how to interpret or administer the enactment, and (3) informing Congress and the public that the Executive believes that a particular provision would be unconstitutional in certain of its applications, or that it is unconstitutional on its face, and that the provision will not be given effect by the Executive Branch to the extent that such enforcement would create an unconstitutional condition.
The memo goes on:
In each of the last three Administrations, the Department of Justice has advised the President that the Constitution provides him with the authority to decline to enforce a clearly unconstitutional law.(7) This advice is, we believe, consistent with the views of the Framers.(8) Moreover, four sitting Justices of the Supreme Court have joined in the opinion that the President may resist laws that encroach upon his powers by “disregard[ing] them when they are unconstitutional.” Freytag v. C.I.R., 111 S. Ct. 2631, 2653 (1991) (Scalia, J., joined by O’Connor, Kennedy and Souter, JJ., concurring in part and concurring in judgment).(9)
If the President may properly decline to enforce a law, at least when it unconstitutionally encroaches on his powers, then it arguably follows that he may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing. If so, then a signing statement that challenges what the President determines to be an unconstitutional encroachment on his power, or that announces the President’s unwillingness to enforce (or willingness to litigate) such a provision, can be a valid and reasonable exercise of Presidential authority.
The Barack Obama Presidency will sign AND enforce statutes that it believes are unconstitutional, and he promises to do so in the name of the integrity of the office, and his obligation to carry out his constitutional duties.
“…and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”
I am underwhelmed by the best of Mr. Obama’s ability.
…and now I have a headache.