Signing Statements For Dummies

There’s been a lot of “Gotcha!”-style chatter on the subject of Barack Obama’s signing statement on the recently passed omnibus spendig bill.  Most of this relies on the reader’s ignorance of the legit uses of signing statements, and on a lie about Barack Obama’s position on signing statements.

Luckily, I’m here to clear it all up for you.  First, what did Barack Obama say about signing statements during the campaign? (h/t Mark Impomeni)



He states 2 things clearly here about the use of signing statements; that he will not use them to make an end run around Congress, and that he will uphold the Constitution.  These promises are echoed in his recent memorandum on signing statements.

Now, for the legitimate uses of signing statements.  As he states in the memorandum, signing statements are a way of avoiding a veto of a huge bill based on a small problem.  I’ll give you an example.

If Congress sends the President a huge spending bill that says “by signing this bill, the President agrees never to veto another bill again forever,” the President doesn’t have to veto the bill.  He can issue a signing statement, because it is clearly in conflict with the powers granted to the President by the Constitution.

Part of his promise in the memo is to try to get clauses like this removed before a bill reaches his desk, but if one remains, this is a legitimate use of a signing statement.

Now, if the President gets a spending bill that says “all taxes for the rich will cease, henceforth, forever,” he would have to veto it if he didn’t like it, because it is within Congress’ power to raise and lower taxes.  He can’t just “signing statement” it away.

The President also can’t use signing statements to claim new powers not enumerated in the Constitution.  If President Obama appended the omnibus bill thusly: “I interpret certain provisions of this bill as granting me the right of primo nocte,” he would be acting outside of his constitutional authority, and this would be an illegitimate use of signing statements.

Let’s look at the President’s use of a signing statement on the recent omnibus spending bill.  Here’s the statement, with my comments in bold:

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.

This means that any honest quibble with this signing statement would need to address the legitimacy of the Constitutional concerns raised in the statement, not the mere existence of it.  Neither the WaPo article, nor the Political Machine’s Mark Impomeni, raise any such objections.  In fact, Mark’s piece explicitly states that Obama’s constitutional concerns are well-founded, saying “President Obama appears to be on sound legal ground with his rejection of the provisions mentioned.”

* 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.

From Wikipedia: “The president decides whether to recognize new nations and new governments, and negotiate treaties with other nations, which become binding on the United States when approved by two-thirds of the Senate.”

* 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.

The foundation for this objection is pretty clear.  The bill is basically saying, “You’re the Commander-in-Chief, except when you’re not.”  This differs from legitimate oversight in that it grants discretion that is the President’s alone to the military.  From The US Constitution: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States”

* 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.

This is simply a clarification of the difference between legitimately privileged information and stonewalling.

* 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.

The key phrase here is this: “These are impermissible forms of legislative aggrandizement in the execution of the laws other than by enactment of statutes.”  What he’s saying here is that Congress can enact these restrictions if they want, but they have to do it by passing laws, not by writing them into a spending bill.

* 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.

No, “precatory” is not when you charge someone too much interest on a loan.  I checked.  “prec·a·to·ry
Pronunciation: ‘pre-k&-“tOr-E
Function: adjective
: expressing a wish or desire but not creating a legal obligation or affirmative duty”

This doesn’t mean he will ignore it, just that if he can’t locate the proper TPS report or red stapler, stuff will still get done.

From The US Constitution: “He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient”

So, there you have it. President Obama kept his promise about signing statements, using only well-founded objections and citing them with clarity and specificity.

More on this at AOL:

Fact Check: President Obama Did NOT Break Signing Statement Promise

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8 Comments

  1. You’re telling me that this democratic president, with a socialist agenda, can’t get congress, with a democratic majoity and sometimes socialist agenda, to write a bill – or change a bill – that would be more to his liking? He either is a terrible leader, afraid of his 3rd in command or powerless. And when will he and they start leading instead of blaming the prior administration. There was PLENTY of blame to be placed on the Clinton administration (bin laden, etc.), but I didn’t hear that much whining and blaming going on by the Bush administration.. Let’s get going – we need a leader.

  2. I’m not sure what your criticism is here. Did you or did you not find his concerns to be well-founded and within the guidelines?

  3. Tommy, I find this inspirational, but perhaps not for the same reasons you do.

    “This is simply a clarification of the difference between legitimately privileged information and stonewalling. ”

    That is a gem.

  4. ““The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States”

    Ah, but alliances, treaties et al are the rub, especially when the service intersects the matter of war powers and combat.

    Actually, the Democrats have lectured us quite intensively on this distinction, when it involves wars they don’t like, and alliances they have grown tired of, and allies they wish to throw under the bus for various reasons.

  5. Bob, don’t be a dick. He’s saying they’ll comply unless it violates national secirity or some other form of legitimate privilege.

  6. BTW, Tommy, I’m arguing with Erick today also, if it makes you feel better. :>)

    http://www.redstate.com/erick/2009/03/15/a-there-ought-to-be-a-law-post/#comment-19960

  7. Bob,
    It does make me feel better. I did take into account what you are saying about war powers, but I didn’t want to muddy the waters. The objection Obama raises differs from something like timelines because it asks the President to relinquish discretion, rather than setting specific conditions on the funding. Timelines, you should also remember, all had a “conditions on the ground” loophole.

  8. i suppose I should explain why this post tickles my funnybone. I used to administer a structured, sterling denominated financing that was heavily impacted by UK tax rates. When they changed, I would receive a legal notice that such-and-such tax law change had been passed by parliament and had received the Royal Assent. This always provoked visions of a royal courtier backing away, bowing as he carried the red cushion with the document now bearing said signature. (And the Royal Seal, too, I hope!)

    All in all, imagery that will serve the New Age of Obama!


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