- The Washington Times - Tuesday, March 24, 2009

President Obama failed to consult Congress, as promised, before carving out exceptions to the omnibus spending bill he signed into law — breaking his own signing-statement rules two days after issuing them — and raised questions among lawmakers and committees who say the president’s objections are unclear at best and a power grab at worst.

In at least one case, lawmakers charge, Mr. Obama used his first signing statement, on the catch-all $410 billion spending bill, to go beyond the Bush and Clinton administrations in swatting away Congress’ attempt to protect whistleblowers.

“Not only is your signing statement contrary to your campaign statements, it also goes beyond the traditional broad signing statements authored by previous presidents,” said Sen. Charles E. Grassley, Iowa Republican and a leader in pushing for whistleblower protections, who wrote a letter saying Mr. Obama goes after those who divulge classified information to Congress.

White House spokesman Bill Burton acknowledged the administration didn’t follow its rules this time on working with Congress, but disputed Mr. Grassley’s stance, saying the administration is committed to whistleblower protections but the spending bill “goes too far.”

Mr. Burton said under the spending bill’s language, administration officials who talk about classified or national security material or issues covered by executive privilege would be protected. He said the White House’s more limited interpretation is consistent with how former President Bill Clinton construed whistleblower protections, and pointed to a signing statement Mr. Clinton issued Sept. 29, 1999, as evidence.

“The president’s signing statement does not purport to control or limit legitimate whistleblowing activities. Nor is it intended to break new ground on this issue,” Mr. Burton said.

Signing statements date back to the 1800s, but became a heated issue when critics accused former President George W. Bush of using them to carve out parts of laws he would ignore on policy grounds, rather than simply lay out separation-of-powers conflicts between the executive and legislature.

On March 9, Mr. Obama issued new rules designed to cut down on statements. He promised to work with Congress in advance to work out objections and decrease the need for a signing statement, said he would be specific in his objections when he does issue a statement, and would “act with caution and restraint.”

Two days later, on March 11, Mr. Obama issued his first statement, listing objections to at least 10 provisions and citing five constitutional grounds.

The objections ranged from very specific to fairly broad, including interfering with the chief executive’s right to negotiate on foreign affairs; misconstruing the military chain of command by forcing him to get sign-off from military commanders for certain U.N. peacekeeping missions; and making some executive decisions subject to pre-approval by congressional committees or advisory boards with congressional members. Mr. Obama said that violated separation of powers.

Tim Rieser, majority clerk for the Senate Appropriations Committee’s state and foreign operations subcommittee, said the vague language of Mr. Obama’s signing statement left subcommittee members with questions about the administration’s intentions.

“We will be asking them for clarification,” he said. “They appear to believe that certain provisions exceeded Congress’ constitutional authority. Congress did not see it that way, so we need to discuss it.”

Several members of Congress and their staffers also said they received no warning about the objections.

The White House defended the statements, saying the omnibus spending bill was “an unusual case in many respects.”

“The timing and process on the omnibus bill (which really deals with last year’s business), including the fact that there was no conference report, made it not practicable for the Administration to articulate its constitutional concerns until the signing statement,” Mr. Burton said in an e-mail.

Some subcommittees took a wait-and-see approach to Mr. Obama’s signing statement, arguing it’s more important to see how the president follows through. And some lawmakers didn’t see the statement needing any follow-up.

Rep. Alan B. Mollohan, West Virginia Democrat and chairman of the commerce, justice and science and related agencies subcommittee, declined to respond to several inquiries about the signing statement.

And House Appropriations state and foreign operations subcommittee member Rep. Adam B. Schiff, California Democrat, said he was too busy to review the signing statement.

“Unfortunately, he does not have the time that would be necessary to go through the bill and the signing statement in order to comment,” said Schiff spokesman Sean O’Black.

Still other subcommittees said they accept the president’s objections. For example, Mr. Obama said the Interior Department section of the bill interfered with the president’s right to conduct foreign policy because it directed rather than encouraged the U.S. government to work with foreign governments on firefighting assistance.

“We hadn’t heard of any objection previously, but it’s not a major problem. His signing statement merely says he will not be constrained by virtue of our language, which isn’t a problem,” said George Behan, chief of staff for House Appropriations interior, environment and related agencies subcommittee Chairman Norm Dicks, Washington Democrat.

The president’s decision to issue any signing statements at all has come under fire.

H. Thomas Wells Jr., president of the American Bar Association, said the Constitution gives Mr. Obama two options: to sign or veto a bill.

“The ABA recommended that all presidents refrain from using signing statements to challenge the constitutionality of legislation, and President Obama has kept the door open to do so,” Mr. Wells said the day after Mr. Obama issued his new rules.

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