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May 1st, 2011

Signing Statement Hypocrisy

By Nathan Tucker

The hue and cry of a constitutionally-conscientious Left was strangely silent as President Obama recently issued his 17th signing statement.  Though negotiated by his Administration, Obama found several portions of the recently-passed budget bill for the remainder of Fiscal Year 2011 objectionable and, rather than vetoing it, issued a signing statement instead.

In particular, Obama objected to Section 2262, which defunded four of the President’s czars that have not been confirmed by the Senate.  In his signing statement, the President wrote that:  “Legislative efforts that significantly impede the President’s ability to exercise his supervisory and coordinating authorities or to obtain the views of the appropriate senior advisers violate the separation of powers by undermining the President’s ability to exercise his constitutional responsibilities and take care that the laws be faithfully executed.”

In what can only be described as a power grab, the President then concluded that “the executive branch will construe section 2262 not to abrogate these Presidential prerogatives.”  In other words, Obama will presumably continue to fund the positions, perhaps from his own stash, despite Congress’ legitimate exercise of its constitutional authority over the purse strings.

But when asked in 2008 if, “when Congress offers you a bill, [will] you promise not to use presidential signing statements to get your way?,” then-candidate Obama simply answered, “Yes.”  He continued:  “We have a government designed by the Founders so that they’ll be checks and balances…Congress’ job is to pass legislation.  The President can veto it or he can sign it.  But what George Bush has been trying to do…is he’s been saying that ‘I can basically change what Congress has passed by attaching a letter’…That’s not part of his power…I taught the Constitution for ten years.  I believe in the Constitution and I will obey the Constitution of the United States.  We’re not going to use signing statements as a way to do an end run around Congress.”

He gave a similar response here in Iowa.  “I believe in checks and balances,” Obama said.  “I want an Administration that is upholding the Constitution, that is including Congress in decision-making…Over the last six years we’ve seen the Constitution of the United States treated as if it was a nuisance to be avoided as opposed to the foundation of our democracy.”

Then-candidate Obama was far from alone in his criticism of presidential signing statements.  The American Bar Association called them “contrary to the rule of law and our constitutional system of separation of powers” and urged presidential candidates in 2008 not to use them.  Charlie Savage of the New York Times won a Pulitzer for reporting on President Bush’s use of signing statements.

Here in Iowa, Democratic Senator Tom Harkin once argued that, “with his recent signing statement, once again [President Bush] has shown he views Congress as a nuisance rather than an equal branch of government under the Constitution.”

Congressman Leonard Boswell (D) once voted in favor of impeaching President Bush because, “in violation of his constitutional oath to faithfully execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty under article II, section 3 of the Constitution `to take care that the laws be faithfully executed’, has used signing statements to claim the right to violate acts of Congress even as he signs them into law.”

Congressman Dave Loebsack (D) co-sponsored the still-born Presidential Signing Statement Act of 2007, which stated that the “judicial use of presidential signing statements is inappropriate, because it in effect gives these statements the force of law…Presidential signing statements are not passed by both Houses of Congress…, so they are not the supreme law of the land.”

Where are these constitutionally-conscientious liberals now?

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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