Signing Statementing Our Way to Empire

By David Swanson

President Obama’s second signing statement has generated a great deal of news coverage referring to it as his first. And the coverage largely suffers from the shadow of Obama’s predecessor (and of Bush’s fat sidekick), not to mention the shadow of Obama’s recent statement about signing statements.

Let’s get a few things out of the way: Obama has not abused power to the extent Bush and Cheney did, and he would have to work very hard to do so. I voted for him. I’m confident McCain-Palin would have been much worse. I support many things Obama has done in his first month-and-a-half and can’t recall ever approving of a single thing that came out of the White House in the previous eight years other than George W. Bush’s suitcases and his traitorous criminal self.

But I’m a citizen, not a fan. We don’t need summer soldiers, spectators, or cheer leaders. We need a little honesty. If you want to praise unconstitutional presidential power because of the current president’s brand name, you may actually be the explanation for the recently reported decline in religion in America: you’ve decided to worship a political party instead.

This terrific database counts (apparently without persuading anyone else) Obama’s February 17th statement on the stimulus bill as his first “signing statement,” and I blogged about that one here. But let’s look at the new one:

Office of the Press Secretary
For Immediate Release March 11, 2009

Today I have signed into law H.R. 1105, the “Omnibus Appropriations Act, 2009.” This bill completes the work of last year by providing the funding necessary for the smooth operation of our Nation’s Government.

As I announced this past Monday, it is a legitimate constitutional function, and one that promotes the value of transparency, to indicate when a bill that is presented for Presidential signature includes provisions that are subject to well-founded constitutional objections. The Department of Justice has advised that a small number of provisions of the bill raise constitutional concerns.

Indeed it does “promote the value of transparency,” and even makes things more transparent, to announce in writing when you plan to violate laws. But aren’t there some other values at stake too?

• Foreign Affairs
. Certain provisions of the bill, in titles I and IV of Division B, title IV of Division E, and title VII of Division H, would unduly interfere with my constitutional authority in the area of foreign affairs by effectively directing the Executive on how to proceed or not proceed in negotiations or discussions with international organizations and foreign governments. I will not treat these provisions as limiting my ability to negotiate and enter into agreements with foreign nations.

Provisions of a new law “WOULD” do something? If what? If the law were enforced as written and signed?

Your “constitutional authority in the area of foreign affairs”? Now, Addington and Bybee and Yoo and Cheney and Bush were certifiably insane when they claimed the president could shred the Constitution because he was the “commander in chief” and had “executive power,” but at least those words actually appear in the Constitution. “Authority in the area of foreign affairs” is a phrase that Eric Holder must have pulled straight out of his assembled legal team, because it just ain’t in what Madison, Mason, Jefferson, and friends wrote or ever would have written in the way you employ the phrase.

And, now that you mention it, the Constitution says precisely this about your supposed “ability to negotiate and enter into agreements with foreign nations”:

“He shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”

As you know, your predecessor made a treaty with Iraq for three years of war, and did not seek the advice or consent of the Senate or the Congress as a whole. He thereby shredded this section of the Constitution and seized as well the power to make war, which — according to the same Constitution — also belongs to Congress.

When you were campaigning for office you favored Congressional “approval” of the treaty President Bush made with Iraq. As president-elect, you favored Congressional “review.” As president you went silent for a month-and-a-half and then produced this statement defending your supposed right to do exactly what Bush did without Congress “limiting” or “interfering” in your supposed Constitutional power to do precisely what the Constitution denies you the right to do unless two-thirds of the Senators present permit it.

Is Afghanistan where you will first do it?

And what exactly are “titles I and IV of Division B, title IV of Division E, and title VII of Division H” of the bill you just signed into limbo? Like everything else in the bill, they delineate what you can and cannot spend money on. Since the Constitution gives Congress the exclusive power to spend money, it is awkward, to say the least, that you are choosing to attack the power of the purse in the process of claiming the false power of unitary treaty-maker. Let’s read on.

• United Nations Peacekeeping Missions
. Section 7050 in Division H prohibits the use of certain funds for the use of the Armed Forces in United Nations peacekeeping missions under the command or operational control of a foreign national unless my military advisers have recommended to me that such involvement is in the national interests of the United States. This provision raises constitutional concerns by constraining my choice of particular persons to perform specific command functions in military missions, by conditioning the exercise of my authority as Commander in Chief on the recommendations of subordinates within the military chain of command, and by constraining my diplomatic negotiating authority. Accordingly, I will apply this provision consistent with my constitutional authority and responsibilities.

When Bush used to announce in signing statements that he would violate the very law he was signing into law, he would typically say that he would “construe” section such-and-such “in a manner consistent with the President’s constitutional authority as Commander in Chief,” or with his duty “to supervise the unitary executive branch.” You’ve altered this to read “consistent with my constitutional authority and responsibilities.” That’s change I can believe in, since I see it right in front of me, but it’s not change worth writing home from Bagram about. For all your references to the Constitution, Mr. President, one would think you might have noticed that the Constitution gives you the option to sign a bill into law and execute it or the option to veto it. This bill has been around for a few weeks. One way to promote the values of transparency and communication would have been to let Congress know that you would veto it if this section remained in it.

• Executive Authority to Control Communications with the Congress. Sections 714(1) and 714(2) in Division D prohibit the use of appropriations to pay the salary of any Federal officer or employee who interferes with or prohibits certain communications between Federal employees and Members of Congress. I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees’ communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.

Well, then, frankly, Mr. President, interpreting is just not your strong suit, and you might want to stick to your day job. The law says what it says, and interpreting it to say exactly the opposite is not a legitimate criminal defense.

• Legislative Aggrandizements (committee-approval requirements). Numerous provisions of the legislation purport to condition the authority of officers to spend or reallocate funds on the approval of congressional committees. These are impermissible forms of legislative aggrandizement in the execution of the laws other than by enactment of statutes. Therefore, although my Administration will notify the relevant committees before taking the specified actions, and will accord the recommendations of such committees all appropriate and serious consideration, spending decisions shall not be treated as dependent on the approval of congressional committees. Likewise, one other provision gives congressional committees the power to establish guidelines for funding costs associated with implementing security improvements to buildings. Executive officials shall treat such guidelines as advisory. Yet another provision requires the Secretary of the Treasury to accede to all requests of a Board of Trustees that contains congressional representatives. The Secretary shall treat such requests as nonbinding.

An executive official who treats the law as “advisory” is not an executive official, is not someone engaged in executing the law. Such an individual is, instead, the servant of a king.

• Recommendations Clause Concerns
. Several provisions of the Act (including sections 211 and 224(b) of title II of Division I, and section 713 in Division A), effectively purport to require me and other executive officers to submit budget requests to the Congress in particular forms. Because the Constitution gives the President the discretion to recommend only “such Measures as he shall judge necessary and expedient” (Article II, section 3 of the Constitution), the specified officers and I shall treat these directions as precatory.

The word “only” is not quoted because it is not part of that phrase in the actual Constitution, the Constitution being the document that in Article I. Section 8. gives virtually all the powers that the drafters thought a government would need to the Congress, which was then also granted the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Therefore, Mr. President, with all due respect, your power to recommend things to Congress’ consideration, were it substantial enough to amount to a power at all, would still be subject to Congressional legislation. But then, you should know that, since you just signed such legislation into “law”.

March 11, 2009.
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I’m left wondering, as this document becomes an official part of what we still call “law”: Will this perhaps be, for the time being, the U.S. “law” with the greatest number of occurrences (3) of the word “me”? And how many people without illusions of divinity ever refer to legal restrictions on their behavior as “precatory”?