- The Washington Times - Monday, December 26, 2016

President Obama said Friday that the annual defense policy bill Congress sent him violated the Constitution — but he signed it anyway.

Instead of a veto, Mr. Obama issued a statement saying he would modify the law in its execution so he carries it out the way he thinks meets constitutional muster.

Mr. Obama promised during the 2008 campaign not to engage in issuing signing statements. He said that kind of behavior was a dark spot on the presidency of George W. Bush. But in the years since, Mr. Obama has become a regular practitioner, issuing more than 20 signing statements purporting to alter the way Congress wrote laws.

Over the past few weeks, the president has issued three signing statements shaping congressionally approved legislation, including one on water projects and one on fishing rights in the Pacific. In the defense policy bill, Mr. Obama lodged a long list of objections and described how he would carry them out in ways he deemed appropriate under previous laws or the Constitution.

The White House and its Office of Management and Budget, which is responsible for analyzing legislation, did not respond to repeated requests for comment on the signing statements, but administration critics said they constituted evidence of hypocrisy.

“These signing statements show the difference between Obama as candidate and leader of his party and Obama as president,” said John Yoo, who was the Justice Department’s lead lawyer on separation of powers issues in the Bush administration. “In the former capacity, he attacked the Bush administration for its alleged misuse of executive power. Once in office, he relied on many of the exact same practices to advance his agenda and arguably went well beyond any previous president in his use of power on domestic issues.”

Presidents dating back to the birth of the country have used signing statements to explain how they see enacted legislation, but the practice did not attract real scrutiny and controversy until the tenure of Mr. Bush, who issued 161 statements, 130 of them purporting to revise laws in ways that he saw fit.

Outrage ensued. Congress called hearings to condemn the practice. A Pulitzer Prize board awarded its prestigious journalism award to The Boston Globe for exposing the behavior, and the American Bar Association convened a special task force to study the matter.

The ABA panel issued a final report in 2006 excoriating the president and saying signing statements violated the founders’ intent.

“If our constitutional system of separation of powers is to operate as the framers intended, the president must accept the limitations imposed on his office by the Constitution itself,” the ABA panel said in chiding Mr. Bush. The task force said presidents have a binary choice: Either sign bills and carry them out, or veto them and work with Congress on legislation more to their liking.

A decade later, the worries over signing statements have faded. Though the ABA did issue a letter in 2011 chastising Mr. Obama, it was lost in the end-of-year holiday shuffle. Neither Michael Greco, who was president of the ABA in 2006 and ordered the review, nor Neal R. Sonnett, the Miami lawyer who led the task force, responded to multiple requests for comment.

Obama pledge

Mr. Obama seemed to take the issue seriously during the 2008 campaign. Prodded by The Globe, he said it was acceptable to use statements “to clarify his understanding of ambiguous provisions,” but he promised not to use such statements to refashion laws.

“It is a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end run around provisions designed to foster accountability,” he told the paper. “I will not use signing statements to nullify or undermine congressional instructions as enacted into law.”

Mr. Obama quickly changed his tune when he took office. His second signing statement, issued March 11, identified five parts of a spending bill that he said he would reinterpret to his liking.

It became a pattern. As of last week, Mr. Obama had issued 37 signing statements, and 22 of them — nearly 60 percent — contained language claiming to reinterpret or construe the law a certain way.

Those numbers are still far lower than the 160 statements Mr. Bush issued, 80 percent of which purported to interpret the law, but Mr. Obama’s behavior was enough to earn a reprimand from the fact-checking organization PolitiFact, which has been keeping track of the president’s campaign promises.

When it first reviewed the topic, PolitiFact rated Mr. Obama’s behavior as a “compromise,” saying he seemed to be fudging with his use of signing statements. But in 2014, the organization officially declared that Mr. Obama had broken his promise when he transferred a handful of detainees from Guantanamo Bay and traded them to the Taliban in exchange for the release of Army Sgt. Bowe Bergdahl in clear defiance of federal law.

The latest defense policy bill passed by Congress keeps those same Guantanamo restrictions in place. Mr. Obama, in his signing statement, again warned that he would disregard them when he deems it necessary.

“As I have said repeatedly, the provisions in this bill concerning detainee transfers would, in certain circumstances, violate constitutional separation-of-powers principles,” he said. “Additionally, Section 1034 could in some circumstances interfere with the ability to transfer a detainee who has been granted a writ of habeas corpus. In the event that the restrictions on the transfer of detainees in Sections 1032 and 1034 operate in a manner that violates these constitutional principles, my administration will implement them in a manner that avoids the constitutional conflict.”

Fisheries fight

Another bill Mr. Obama signed this month, the Pacific fisheries legislation, gives fishery groups the right to appoint members to an international fishery commission. Mr. Obama said that provision infringes on his power to appoint all officers who play roles in foreign relations. He said he would reinterpret the law to restore his powers.

“The executive branch will develop an approach to treat this provision of the statute in a manner that mitigates the constitutional concerns while adhering closely to the intent of the Congress,” he said.

The objection caught Capitol Hill by surprise because the administration worked with Congress to write the bill and didn’t raise the constitutional questions.

“These signing statements on these little, relatively unimportant bills show how fleeting was Obama’s power,” said Mr. Yoo, now a law professor at the University of California at Berkeley. “They are like a little kid’s firecracker going off right before the big New Year’s Eve show: The kid might be impressed, but it will soon be drowned out and forgotten after the real show — the coming of the Trump administration.”

Mr. Yoo said Mr. Obama’s repeated clashes with Congress, where the president often did end runs rather than reach compromises, will now haunt him.

“Anything that Obama has done using his sole executive power can be undone by President Trump on his first day in office, including the policies set forth in these signing statements,” Mr. Yoo said.

Bruce Fein, one of the lawyers on the ABA’s task force, noted that Mr. Obama has issued fewer signing statements than Mr. Bush, but he said the president has tried a different tactic: having the Justice Department craft a notice of how the administration intends to carry out parts of the law with which Mr. Obama disagrees.

“De facto, they work the same way,” he said.

Mr. Fein said the reason Mr. Obama’s breaches have received less attention than Mr. Bush’s is simple partisan bias in press coverage.

“He’s a Democrat, the media likes him, it’s much more difficult to criticize him,” the lawyer said. “He got a free ride.”

Mr. Fein said that was the case on a number of other major constitutional issues, including the president’s deployment of troops to Libya. He said it also applied to Mr. Obama’s flouting of the Constitution’s requirements for ratification of an arms control treaty when it came to the nuclear deal with Iran. The president labeled it an executive agreement that he said did not require Senate ratification.

“He just wiped out the treaty clause,” Mr. Fein said. “How could that not be a treaty?”

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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