7/25/2019 Obama Circumvents Laws With Signing Statements, a Tool He Promised to Use Lightly

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washingtonpost.com

Obama circumvents laws with signing

statements, a tool he promised to use lightly.Karen Tumulty

In exchange for the release of U.S. Army Sgt. Bowe Bergdahl, the U.S. agreed to free fiveTaliban commanders from the military detention center at Guantanamo Bay, Cuba. They wereamong the Talibans most influential commanders. (Tom LeGro and Natalie Jennings/TheWashington Post)

Back when Barack Obama was a presidential candidate who boasted his background as aprofessor of constitutional law, he frequently criticized President George W. Bush for what

Obama said was a clear abuse of executive power.

As president, Obama is being accused of doing the same, albeit not as frequently.

The issue at hand is his use of signing statements, official pronouncements in which apresident offers his interpretation of legislation that he is signing and in the modern era,sometimes announces that he feels free to disregard it.

While Obama has not issued as many signing statements as Bush did, many say he employs themin much the same manner.

The difference is really with volume, not in kind, said Kevin Evans, a Florida InternationalUniversity professor who has researchedthe practice of presidential signing statements. SenatorObama had a very different view than President Obama.

The latest and potentially hottest flash point involves Obamas decision over the weekendto trade the release of Army Sgt. Bowe Bergdahl, the sole remaining U.S. military prisoner ofwar, for that of five Taliban commanders who were being held at the detention center atGuantanamo Bay, Cuba.

Current law, signed by Obama in December, stipulates that the defense secretary must notifyrelevant congressional committees at least 30 days before transferring anyone from Guantanamo

Bay and provide assurances that those released would not be in a position to again threaten theUnited States or its interests.

Obama did not send such a notice to Capitol Hill until Monday two days after the detaineeswere sent to Qatar, where they will live for at least the next year, in circumstances that neitherthe administration nor the emirate has explained publicly.

https://www.washingtonpost.com/politics/obama-circumvents-laws-with-signing-statements-a-tool-he-promised-to-use-lightly/2014/06/02/9d76d46a-ea73-11e3-9f5c-9075d5508f0a_story.htmlhttp://www.washingtonpost.com/world/national-security/taliban-held-us-soldier-released-in-exchange-for-afghan-detainees/2014/05/31/8b764dac-e8db-11e3-a86b-362fd5443d19_story.htmlhttp://millercenter.org/blog/obama-administration-signing-statements-evanshttps://www.washingtonpost.com/politics/obama-circumvents-laws-with-signing-statements-a-tool-he-promised-to-use-lightly/2014/06/02/9d76d46a-ea73-11e3-9f5c-9075d5508f0a_story.html

7/25/2019 Obama Circumvents Laws With Signing Statements, a Tool He Promised to Use Lightly

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That Obama should ignore the notification provision, which was part of the 2014 NationalDefense Authorization Act, is not entirely a surprise.

In the signing statement with the law, Obama declared that he thought the requirement waspotentially unconstitutional.

The executive branch must have the flexibility, among other things, to act swiftly in conductingnegotiations with foreign countries regarding the circumstances of detainee transfers, Obamasaid.

In the case of Bergdahls release, administration officials have argued, life-or-deathcircumstances required fast action.

That has not quieted the criticism from Capitol Hill.

Our joy at Sergeant Bergdahls release is tempered by the fact that President Obama chose to

ignore the law, not to mention sound policy, to achieve it, House Armed Services CommitteeChairman Howard P. Buck McKeon (RCalif.) and Sen. James M. Inhofe (Okla.), the rankingRepublican on the Senate Armed Services Committee, said in a joint statement.

Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.) said her panel should havebeen notified before the transfer. Past proposals for prisoner swaps with the Taliban raisedconsiderable concern, she added.

The practice of issuing signing statements goes at least as far back as President Andrew Jackson,who in 1830 issued one stipulating that he would not extend beyond Michigan territory an$8,000 road that Congress wanted to build from Detroit to Chicago.

But they were relatively rare until Ronald Reagan began using signing statements as a means ofasserting the power of the executive against the legislative branch.

George W. Bush used signing statements to challenge about 1,200 provisions of 172 laws hesigned twice as many as all his predecessors combined, Evans said.

In 2006, a 10-member panel of lawyers and legal scholars assembled by the American BarAssociation criticized him for itand wrote: The Presidents constitutional duty is to enforcelaws he has signed into being unless and until they are held unconstitutional by the SupremeCourt or a subordinate tribunal. The Constitution is not what the President says it is.

If a president objects to something in a bill, the ABA group argued, he should veto the wholething.

Obama was among the critics of Bushs use of signing statements.

Although he did not pledge to abstain from using signing statements, Obama said he would wieldthe power more judiciously.

http://www.washingtonpost.com/wp-dyn/content/article/2006/07/23/AR2006072300511.htmlhttp://www.presidency.ucsb.edu/ws/index.php?pid=104530

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I will not use signing statements to nullify or undermine congressional instructions as enactedinto law, he wrote in response to a December 2007 questionnaire from the Boston Globe. Theproblem with this administration is that it has attached signing statements to legislation in aneffort to change the meaning of the legislation, to avoid enforcing certain provisions of thelegislation that the President does not like, and to raise implausible or dubious constitutional

objections to the legislation.

As president, Obama has issued close to 30 signing statements; in the 2013 DefenseAuthorization Act alone, he challenged more than 20 sections of the law. Among the challengeshave been assertions of his power to close Guantanamo Bay, for instance, and to disregardwhistleblower protections.

White House spokesman Josh Earnest said Obamas decision not to comply with the 30-daynotification requirement in the Bergdahl case was completely consistent with the objectionsweve raised about the presidents ability to manage the nations foreign policy.

Earnest added that Obamas overall approach to issuing signing statements has been consistentwith what he campaigned on.

Others disagree.

Obamas use of the practice has been indistinguishable from Bush. The volume is a little less,said Bruce Fein, who was a member of the ABA panel. His conception of executive power isequally as grandiose as Bush.

And according to a January 2012 report by the nonpartisan Congressional Research Service:While the frequency with which the Obama Administration has asserted constitutional

objections to enacted statutory provisions represents a departure from previous administrations,the types of objections within the signing statements that the President has issued have generallymirrored those of previous administrations.

But, as with everything else in Washington, reaction generally takes a party line.

When Bush was issuing signing statements, the Republicans didnt care. When Obama wasdoing it, Democrats didnt care, Fein said. And that is how power accrues to the president.

Alice Crites contributed to this report.

Karen Tumulty is a national political correspondent for The Washington Post, where shereceived the 2013 Toner Prize for Excellence in Political Reporting.

http://www.presidency.ucsb.edu/ws/index.php?pid=102815http://www.presidency.ucsb.edu/ws/index.php?pid=102815http://www.presidency.ucsb.edu/ws/index.php?pid=102815http://www.presidency.ucsb.edu/ws/index.php?pid=102815http://www.boston.com/news/politics/2008/specials/CandidateQA/ObamaQA/