President Obama recently issued his 20th presidential signing statement, this time to an addendum to the sprawling National Defense Authorization Act for fiscal 2012. The president notably took issue with provisions that deal with the detention, interrogation and prosecution of suspected terrorists.
Regardless of how onerous the president finds the detention language, his use of a signing statement to ignore the clear intent of Congress runs counter to the constitutional obligation he has to “take Care that the Laws be faithfully executed.” That is not to say that Mr. Obama is obligated to accede to every whim of Congress. Rather, this president - like every other president who objects to language in legislation enrolled by Congress - should exercise the wholly constitutional authority he has to veto a bill.
This is not a constitutional issue born in the current administration, nor is Mr. Obama the most prolific issuer of signing statements. In 2006, the American Bar Association (ABA) created the blue-ribbon Task Force on Signing Statements and the Separation of Powers Doctrine to examine the history and consequence of a practice the task force ultimately concluded was “contrary to the rule of law.” The task force found that American presidents have used signing statements to disregard or decline to enforce laws perhaps as far back as James Monroe. All the combined signing statements in the first 200 years of our republic, however, pale in number and consequence to those issued since.
On the campaign trail in 2008, then-candidate Barack Obama chided President George W. Bush for his reliance on signing statements, saying, “That’s not part of his power, but this is part of the whole theory of George Bush that he can make laws as he goes along.” Noting his background in constitutional law, candidate Obama went on to say, “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 of doing an end run around Congress.”
Unfortunately, President Obama has since chosen to wear the dubious mantle of his predecessors regarding signing statements, albeit so far with less frequency than Presidents Clinton or Bush. But signing statements continue to be incompatible with our system of government and justice.
Article I of the Constitution unequivocally reserves to Congress alone the power to make law. Where a signing statement is used to nullify a component of a law, the president is in each instance unilaterally usurping the exclusive power of the legislative branch by denying Congress the opportunity to override a veto of that law and may be abrogating the power of the judicial branch to make a determination of constitutionality.
Clearly, the original intent of the framers of the Constitution was to give the president the choice of signing or vetoing a bill passed by Congress - in its entirety. In many ways, a signing statement resembles and is effectively a “line-item veto,” which the Supreme Court definitively ruled to be unconstitutional in 1998. Writing in concurrence with the decision in that case, Justice Anthony M. Kennedy warned that “increasing the power of the president beyond what the Framers envisioned … compromises the political liberty of our citizens, liberty which the separation of powers seeks to secure.” Signing statements simply constitute an improper consolidation of too many powers of state in the hands of a single individual.
The wisdom of Justice Kennedy’s words in 1998 continue to echo today with the same power and persuasiveness.
William T. Robinson III is president of the American Bar Association.