Distinguishing Between Signing Statements: the Good, Bad, and Terrible

By signing statement, President Obama mooted two of the effects of the compromise budget legislation: the withdrawal of funds for stateside trials of war on terror detainees, and for special presidential advisors (“czars”).

Before calling this latest signing statement the breach of a campaign promise, let’s remember the scope of the promise. Obama never promised to not issue signing statements, but to minimize their impact and frequency by consulting with Congress. Here, because the budget compromise followed extensive negotiation, we can imagine that consult probably happened, that the threat was tendered, and that it was ignored. More, the GOP must have known such limitations on the president’s budget wouldn’t stand under this (or any) White House. Congressional Republicans just wanted the vote, and the signing statement, on record, which is what they got. The tea party is an ideology of symbols, not of action; and they certainly got the latter.

Nor are we confronted here with an abuse mirroring the worst — which is to say, the regular course of conduct — of the Bush years. Bush regularly killed not just funding limitations, but substantive law imposed on the executive branch pursuant to the Congress’ constitutional authority to regulate the conduct of war. The Detainee Treatment Act of 2005 was the result of two Supreme Court decisions, and extensive debate, all of which crystallized into a stinging, two-branch rebuke of the President’s ability to jail and abuse suspected terrorists without due process. By signing statement, Bush summarily ignored the Act.

Symbolically and legally, that’s not what’s happened here. The executive’s power to ignore substantive limitations is subject to serious debate; the executive’s powers to safeguard its officers, run the executive branch as it sees fit, and make prosecution decisions through the Department of Justice, on the other hand, are all well-settled. Congressional Republicans saw a chance to extract unlikely substantive concessions using the power of the purse,  and made the power grab. They lost, pursuant to a power that they themselves acknowledge as legitimate. That’s all that’s happened here.

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31 comments

  1. Am I the only one that makes a sour face whenever someone makes a, ‘what we did is not as bad as what you did,’ statement?

    It feels like if you have to explain the difference you’ve already sort of messed up on some level.

    1. Thankfully, politics is hardly black and white.

      1. But that’s just it – politics IS black & white. The electorate doesn’t understand legal nuance.

      2. I reject talking points and arguments that hinge on underestimating the American public.

        1. That hardly seems logical. Most of liberal social policy is aimed at underestimating the American public.

          And wasn’t the entire liberal explanation for the Iraq War premised on the dupability of the American public?

        2. Is it really “underestimating” the American public to say that a lot of it is willfully ignorant?

          Not to mention, half of everyone is below average. Pithy statement, yes, and at least quasi tautalogical, but it points out a relevant fact: there’s millions and millions of idiots in the American public.

          You can’t just handwave that away.

        3. I’m not “handwaving it away”; I’m refusing to let important political distinctions go unnoticed, just because most people won’t get them.

          Mike, that comment’s idiotic, inflammatory, and you know better. “Liberal social policy” is the safety net; when circumstances, whatever they may be, compel us to share a burden for our fellow man. It’s a characteristic oversimplification to imagine that the social safety net’s meant only to catch idiots.

          As to the war, well, sort of: the dupability of the entire country by a few high-placed individuals. But if you control what intelligence the rest of the country’s allowed to see, you’re not so much duping them, as in, relying on their weak intelligence, as actively deceiving them.

          1. Ames – there’s nothing inflammatory about it. You know the old saying about re soft bigotry of low expectations. That was coined for a very good reason. Affirmative action is based on under-estimating blacks.

            And as for the war – were you one of the ones duped by the Bush administration?

          2. The theory of affirmative action isn’t that someone can’t do something, it’s that history creates a debt which we should discharge, and invisible barriers that we can erase. Read the Supreme Court decisions on it if you’re confused (which I think you are).

            1. ‘Invisible barier’ sounds amazingly like ‘can’t do something without removing said barrier’.

            2. Education is interesting. The way we’ve come to understand it, using studies and whatever, is that regardless of someone’s potential going in to a quality school, their potential coming out is the same as their peers’. So school becomes a powerful way to eradicate inequality, if you can play with the entry threshold.

              Few dispute that the legacy of slavery still has lingering effects on the black community. You see how your race fares, and how quickly it recovers, after 300 years of oppression. The notion is that those inequalities that remain — which are uniquely not the fault of the black community — can be erased by using the education system as a social instrument. So it’s not that blacks can’t do it; it’s that maybe they shouldn’t have to overcome the burden of history, just to stand on equal footing with the rest of the country. It’s a temporary remedial measure.

              I’m sure you think everyone should pull themselves up by their bootstraps — get a job, homeless and mentally deranged person! — so you probably won’t buy the premise that sometimes, handing someone longer straps isn’t always a bad idea. So there’s the alternate justification that affirmative action isn’t about comparative merit, but rather about how people with comparatively different experiences add something unique to the education system, something that can’t be measured by grades and other entry criteria. Either way, it’s not so condescending as you make it sound.

              1. “So school becomes a powerful way to eradicate inequality.”

                My point is that your perception of ‘inequality’ is the under-estimation of American that we discussed above.

                As proof I would argue that a poor black person has EXACTLY the same roadblocks ahead of them as a poor white person. Numerous studies on educational attainment AND a fairly recent SCOTUS ruling confirm this.

                http://articles.cnn.com/2007-06-28/justice/scotus.race_1_role-race-public-schools-school-choice-plans?_s=PM:LAW

                My argument is that whenever you imagine a person faces inequalities that don’t really exist, you are under-estimating the person themselves through your own biases.

              2. The Roberts Court is essentially a political organ, and while I’m bound to respect Parents Involved as legal precedent, I don’t think anyone should be bound to accept it, or many things to come from that bench, as logical.

                I think affirmative action for poor whites would be a fine thing, too. I don’t think we should shirk from using schooling broadly as a social tool.

                Also, it’s weird to talk about broad social disparities by citing the problem of underestimating the individual. That’s not really what affirmative action is about. Individualized treatment to determine whether the hand-up is warranted, or just, is something that’s already done, but doesn’t speak to the need for a broader rule.

                1. Imagining an inequality that doesn’t exist is an under-estimation of individual(s). You imagine that the stain of slavery still affects the black community (it doesn’t) and you imagine that race is a specific barrier to success (it isn’t).

                2. So, in all cases, the entire country is totally over slavery, the end?

                  1. I think the affects of slavery have exactly as much weight today as the Potato Famine does on me.

                  2. Yes, those events are analogous. Almost identical, really.

                    1. Indeed. They are identical in their complete absence of impact on modern Americans.

              3. “So there’s the alternate justification that affirmative action isn’t about comparative merit, but rather about how people with comparatively different experiences add something unique to the education system, something that can’t be measured by grades and other entry criteria.”

                That justification is vacuous bullshit. That “something unique” can’t be measured because it doesn’t exist.

                Of course, there’s the first justification for affirmative action that you gave. And you know… that one, due to our ancestors being dipshits, I’m down with it. Because here’s the thing: social inequality could, and should, be a good thing. People aren’t all equal. Some people are smarter than others, stronger than others, healthier than others, more capable than others. That means they’re better than others, and they deserve greater quantity and quality of life than others. But due to fucked up history, Person A can be better than Person B, but because Person A has incidental blackness and Person B has incidental whiteness, Person B ends up with greater quantity and quality of life than Person A. That is wrong, and I’m fine with affirmative action that has the purpose and effect of helping ensure Person A lives with the greater quantity and quality of life they deserve and Person B lives with the lesser quantity and quality of life they deserve. Such affirmative action removes lingering unjustified unequal treatment and moves us towards a world in which all people are treated unequally in the right ways for the right reasons.

  2. How is a funding limitation that Congress has passed and the President has signed into law not a substantive limitation? Congress says “No money for X”, President signs it, that makes “No money for X” the law – how is a signing statement that the President intends to continue using money for X not an announcement that he intends to violate the law?

    1. If the limitation itself would be unconstitutional, which is what he’s asserting (and a position on which conservatives generally agree).

      The “substantive” v. “procedural” distinction here isn’t as clear as it could’ve been. Rather, let’s put it this way. The compromise’s “no money for x” restrictions would’ve been unconstitutional invasions of executive power if they simply said, “no x,” so the President is equally privileged to ignore both. As to Bush’s signing statements, the DTA was clearly constitutional to everyone except John Yoo.

      1. How is it an unconstitutional invasion of executive power? The executive power is the power to execute the laws Congress establishes, so if Congress says “No x” or doesn’t say anything at all about x, there’s no law to execute. More to the point, Article I Section 8 gives Congress the powers “to make rules for the government” and “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.” In my mind, that subordinates the executive to the legislature. Yes, the President-the-Person, as the holder of The Presidency-the-Office, can supplant any executive branch employee in the performance of their duties because all executive branch employees are borgdrones of the President, but the scope of their duties is set by Congress, not the President.

        Plus, the Constitution doesn’t state that the President has an independent spending power, so if Congress hasn’t authorized spending on X or has explicitly forbidden spending on X… Seems to me any Presidential instruction spending would be a violation of 18 USC § 641.

        To be clear, I think Black and not Jackson was right in Youngstown.

      2. Everyone disagrees with you on Black v. Jackson, and that’s probably for the best. While it’s not disputed that the executive is subordinate to the legislature — the Constitution’s structure seems to say as much — the office carries that power that it must have to execute the laws, which includes the ability to structure the internal office as it sees fit. Pulling funding from czars, then, isn’t really changing policy: it’s changing how policy is done, which is clearly within the president’s power. It’s like Humphrey’s Executor and its progeny.

        The embezzlement statute is a little far afield :)

        1. Regarding Black v. Jackson, consequentialism is fine as a philosophy and is a great thing when you’re doing policy analysis, but I don’t think it belongs in a courtroom.

          As to the embezzlement statute, let’s start with the text:

          Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof

          I think it applies two ways. The first is that if Congress has said “no money for X” and the President spends money on X, they’re conveying or disposing of money of the United States without authority. The second is that if the President is spending money on X and Congress has said something other than “money for X”, then that money has to have been described by Congress as “money for Y” and diverted from Y to X by the President – which would be covered by this law too, I think. After all, the President is a “whoever”, and unless you’re going to adopt the Nixonian theory of the Presidency, he’s covered by it too.

          And I realize it’s a little bit of a stretch to get the embezzlement statute to fit – but less of a stretch than what prosecutors have been trying with the Computer Fraud and Abuse Act!

          Humphrey’s Executor has never set well with me. The Constitution’s text establishes three powers: executive, legislative, and judicial. “Quasi-” doesn’t appear in the text, and the only things that exist in the Constitution outside the text are 9th Amendment rights, 10th Amendment powers, and so forth – in other words, the things the text explicitly states are part of it too. So the Federal Trade Commission, I don’t think it can exist as an independent body.

        2. If you’re going to question the foundation of the administrative state, you’re naturally going to disagree with the President’s control over it :)

  3. On the subject of the modern effects of slavery I would also note that the ills facing black communities came about mostly during the 1930s and 1940s as they migrated to cities and their social culture began to decline. See for reference Black Metropolis (1946).

    1. I donno. Urban Renewal did a lot of harm in the 60s and 70s. I don,t know how tightly that’s tied to slavery, but it wasn’t called Negro Removal for nothing.

      1. There has been plenty of harm done to black communities, both by themselves and by whites since they moved to the cities, but linking it directly to slavery is impossible. To the contrary it was mostly Northern cities that provided the greatest support for abolition…and then became the very places where blacks found social ruin.

  4. Symbolically and legally, that’s not what’s happened here. The executive’s power to ignore substantive limitations is subject to serious debate; the executive’s powers to safeguard its officers, run the executive branch as it sees fit, and make prosecution decisions through the Department of Justice, on the other hand, are all well-settled. Congressional Republicans saw a chance to extract unlikely substantive concessions using the power of the purse, and made the power grab. They lost, pursuant to a power that they themselves acknowledge as legitimate. That’s all that’s happened here.

    Um no, that’s not all that happened here, and as a Liberal I grow more disenchanted with your interpretations by the day. Mike is right (a rare occurrence I know) in that your argument essentially allows for an unfettered Unitary Executive. That approach led us to TORTURE (amongst other equally heinous decisions) in the last Republican Administration – and the use of signing statements to ignore the legitimate will of Congress is just another tool in the basket of enabling tyranny.

    Really Ames, whose side are you on?

    1. The question seems to be whether the will of Congress is legitimate in this case. An unfettered legislative would be no better.

    2. I don’t think “unitary executive” is an accurate label for what led to pre-conviction torture and disregarding legitimate law under the last administration. Those actions were explained with a theory about the scope of the executive power. As I understand and use it (and as some legal academics, such as the Volokh Conspirators, do as well), “unitary executive” refers to a theory about control and the chain of command within the executive branch, regardless of what the scope of its power is.

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