Obama breaks pledge on sign­ing state­ments

Em­braces Bush tac­tic to mod­ify laws

The Washington Times Daily - - FRONT PAGE - BY STEPHEN DINAN

Pres­i­dent Obama said Fri­day that the an­nual de­fense pol­icy bill Congress sent him vi­o­lated the Con­sti­tu­tion — but he signed it any­way.

In­stead of a veto, Mr. Obama is­sued a state­ment say­ing he would mod­ify the law in its ex­e­cu­tion so he car­ries it out the way he thinks meets con­sti­tu­tional muster.

Mr. Obama promised dur­ing the 2008 cam­paign not to en­gage in is­su­ing sign­ing state­ments. He said that kind of be­hav­ior was a dark spot on the pres­i­dency of Ge­orge W. Bush. But in the years since, Mr. Obama has be­come a reg­u­lar prac­ti­tioner, is­su­ing more than 20 sign­ing state­ments pur­port­ing to al­ter the way Congress wrote laws.

Over the past few weeks, the pres­i­dent has is­sued three sign­ing state­ments shap­ing con­gres­sion­ally ap­proved leg­is­la­tion,

in­clud­ing one on wa­ter projects and one on fish­ing rights in the Pa­cific. In the de­fense pol­icy bill, Mr. Obama lodged a long list of ob­jec­tions and de­scribed how he would carry them out in ways he deemed ap­pro­pri­ate un­der pre­vi­ous laws or the Con­sti­tu­tion.

The White House and its Of­fice of Man­age­ment and Bud­get, which is re­spon­si­ble for an­a­lyz­ing leg­is­la­tion, did not re­spond to re­peated re­quests for com­ment on the sign­ing state­ments, but ad­min­is­tra­tion crit­ics said they con­sti­tuted ev­i­dence of hypocrisy.

“These sign­ing state­ments show the dif­fer­ence between Obama as can­di­date and leader of his party and Obama as pres­i­dent,” said John Yoo, who was the Jus­tice Depart­ment’s lead lawyer on sep­a­ra­tion of pow­ers is­sues in the Bush ad­min­is­tra­tion. “In the for­mer ca­pac­ity, he at­tacked the Bush ad­min­is­tra­tion for its al­leged mis­use of ex­ec­u­tive power. Once in of­fice, he re­lied on many of the ex­act same prac­tices to ad­vance his agenda and ar­guably went well be­yond any pre­vi­ous pres­i­dent in his use of power on do­mes­tic is­sues.”

Pres­i­dents dat­ing back to the birth of the coun­try have used sign­ing state­ments to ex­plain how they see en­acted leg­is­la­tion, but the prac­tice did not at­tract real scru­tiny and con­tro­versy un­til the ten­ure of Mr. Bush, who is­sued 161 state­ments, 130 of them pur­port­ing to re­vise laws in ways that he saw fit.

Out­rage en­sued. Congress called hear­ings to con­demn the prac­tice. A Pulitzer Prize board awarded its pres­ti­gious jour­nal­ism award to The Bos­ton Globe for ex­pos­ing the be­hav­ior, and the Amer­i­can Bar As­so­ci­a­tion con­vened a spe­cial task force to study the mat­ter.

The ABA panel is­sued a fi­nal re­port in 2006 ex­co­ri­at­ing the pres­i­dent and say­ing sign­ing state­ments vi­o­lated the founders’ in­tent.

“If our con­sti­tu­tional sys­tem of sep­a­ra­tion of pow­ers is to op­er­ate as the framers in­tended, the pres­i­dent must ac­cept the lim­i­ta­tions im­posed on his of­fice by the Con­sti­tu­tion it­self,” the ABA panel said in chid­ing Mr. Bush. The task force said pres­i­dents have a bi­nary choice: Ei­ther sign bills and carry them out, or veto them and work with Congress on leg­is­la­tion more to their lik­ing.

A decade later, the wor­ries over sign­ing state­ments have faded. Though the ABA did is­sue a let­ter in 2011 chastis­ing Mr. Obama, it was lost in the end-of-year hol­i­day shuf­fle. Nei­ther Michael Greco, who was pres­i­dent of the ABA in 2006 and or­dered the re­view, nor Neal R. Son­nett, the Mi­ami lawyer who led the task force, re­sponded to mul­ti­ple re­quests for com­ment.

Obama pledge

Mr. Obama seemed to take the is­sue se­ri­ously dur­ing the 2008 cam­paign. Prod­ded by The Globe, he said it was ac­cept­able to use state­ments “to clar­ify his un­der­stand­ing of am­bigu­ous pro­vi­sions,” but he promised not to use such state­ments to re­fash­ion laws.

“It is a clear abuse of power to use such state­ments as a li­cense to evade laws that the pres­i­dent does not like or as an end run around pro­vi­sions de­signed to fos­ter ac­count­abil­ity,” he told the pa­per. “I will not use sign­ing state­ments to nul­lify or un­der­mine con­gres­sional in­struc­tions as en­acted into law.”

Mr. Obama quickly changed his tune when he took of­fice. His sec­ond sign­ing state­ment, is­sued March 11, iden­ti­fied five parts of a spend­ing bill that he said he would rein­ter­pret to his lik­ing.

It be­came a pat­tern. As of last week, Mr. Obama had is­sued 37 sign­ing state­ments, and 22 of them — nearly 60 per­cent — con­tained lan­guage claim­ing to rein­ter­pret or con­strue the law a cer­tain way.

Those num­bers are still far lower than the 160 state­ments Mr. Bush is­sued, 80 per­cent of which pur­ported to in­ter­pret the law, but Mr. Obama’s be­hav­ior was enough to earn a rep­ri­mand from the fact-check­ing or­ga­ni­za­tion Poli­tiFact, which has been keep­ing track of the pres­i­dent’s cam­paign prom­ises.

When it first re­viewed the topic, Poli­tiFact rated Mr. Obama’s be­hav­ior as a “com­pro­mise,” say­ing he seemed to be fudg­ing with his use of sign­ing state­ments. But in 2014, the or­ga­ni­za­tion of­fi­cially de­clared that Mr. Obama had bro­ken his prom­ise when he trans­ferred a hand­ful of de­tainees from Guan­tanamo Bay and traded them to the Tal­iban in ex­change for the re­lease of Army Sgt. Bowe Bergdahl in clear de­fi­ance of fed­eral law.

The lat­est de­fense pol­icy bill passed by Congress keeps those same Guan­tanamo re­stric­tions in place. Mr. Obama, in his sign­ing state­ment, again warned that he would dis­re­gard them when he deems it nec­es­sary.

“As I have said re­peat­edly, the pro­vi­sions in this bill con­cern­ing de­tainee trans­fers would, in cer­tain cir­cum­stances, vi­o­late con­sti­tu­tional sep­a­ra­tion-of-pow­ers prin­ci­ples,” he said. “Ad­di­tion­ally, Sec­tion 1034 could in some cir­cum­stances in­ter­fere with the abil­ity to trans­fer a de­tainee who has been granted a writ of habeas cor­pus. In the event that the re­stric­tions on the trans­fer of de­tainees in Sec­tions 1032 and 1034 op­er­ate in a man­ner that vi­o­lates these con­sti­tu­tional prin­ci­ples, my ad­min­is­tra­tion will im­ple­ment them in a man­ner that avoids the con­sti­tu­tional con­flict.”

Fish­eries fight

An­other bill Mr. Obama signed this month, the Pa­cific fish­eries leg­is­la­tion, gives fish­ery groups the right to ap­point mem­bers to an in­ter­na­tional fish­ery com­mis­sion. Mr. Obama said that pro­vi­sion in­fringes on his power to ap­point all of­fi­cers who play roles in for­eign re­la­tions. He said he would rein­ter­pret the law to re­store his pow­ers.

“The ex­ec­u­tive branch will de­velop an ap­proach to treat this pro­vi­sion of the statute in a man­ner that mit­i­gates the con­sti­tu­tional con­cerns while ad­her­ing closely to the in­tent of the Congress,” he said.

The ob­jec­tion caught Capi­tol Hill by sur­prise be­cause the ad­min­is­tra­tion worked with Congress to write the bill and didn’t raise the con­sti­tu­tional ques­tions.

“These sign­ing state­ments on these lit­tle, rel­a­tively unim­por­tant bills show how fleet­ing was Obama’s power,” said Mr. Yoo, now a law pro­fes­sor at the Univer­sity of Cal­i­for­nia at Berke­ley. “They are like a lit­tle kid’s fire­cracker go­ing off right be­fore the big New Year’s Eve show: The kid might be im­pressed, but it will soon be drowned out and for­got­ten af­ter the real show — the com­ing of the Trump ad­min­is­tra­tion.”

Mr. Yoo said Mr. Obama’s re­peated clashes with Congress, where the pres­i­dent of­ten did end runs rather than reach com­pro­mises, will now haunt him.

“Any­thing that Obama has done us­ing his sole ex­ec­u­tive power can be un­done by Pres­i­dent Trump on his first day in of­fice, in­clud­ing the poli­cies set forth in these sign­ing state­ments,” Mr. Yoo said.

Bruce Fein, one of the lawyers on the ABA’s task force, noted that Mr. Obama has is­sued fewer sign­ing state­ments than Mr. Bush, but he said the pres­i­dent has tried a dif­fer­ent tac­tic: hav­ing the Jus­tice Depart­ment craft a no­tice of how the ad­min­is­tra­tion in­tends to carry out parts of the law with which Mr. Obama dis­agrees.

“De facto, they work the same way,” he said.

Mr. Fein said the rea­son Mr. Obama’s breaches have re­ceived less at­ten­tion than Mr. Bush’s is sim­ple par­ti­san bias in press cov­er­age.

“He’s a Demo­crat, the me­dia likes him, it’s much more dif­fi­cult to crit­i­cize him,” the lawyer said. “He got a free ride.”

Mr. Fein said that was the case on a num­ber of other ma­jor con­sti­tu­tional is­sues, in­clud­ing the pres­i­dent’s de­ploy­ment of troops to Libya. He said it also ap­plied to Mr. Obama’s flout­ing of the Con­sti­tu­tion’s re­quire­ments for rat­i­fi­ca­tion of an arms con­trol treaty when it came to the nu­clear deal with Iran. The pres­i­dent la­beled it an ex­ec­u­tive agree­ment that he said did not re­quire Se­nate rat­i­fi­ca­tion.

“He just wiped out the treaty clause,” Mr. Fein said. “How could that not be a treaty?”


WRIT­ING IT OFF: Pres­i­dent Obama as of last week had is­sued 37 sign­ing state­ments, 22 of which con­tained lan­guage claim­ing to rein­ter­pret or con­strue laws in a cer­tain way.

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