Legal Commentary

Signing Statements?the Administration?s (Reported) New Take

By John Elwood

I am sure that I am not alone in noticing that the White House webpage hasn?t had a new constitutional signing statement posted since last summer.

This article by the NY Times? Charlie Savage Friday sheds new light on why that is. According to the article, the Administration has a new policy on signing statements that it has adopted in the wake of last summer?s kerfuffle with Congress. In short, it will still take the position that certain provisions of newly enacted laws would unconstitutionally infringe on Executive Branch prerogatives (or would otherwise be unconstitutional). It just won?t say so in signing statements.

I can?t imagine that those in Congress who objected to this practice will consider this an improvement. Although the Bush Administration was openly mocked in some quarters for saying its practice promoted transparency, it may be regarded as better than the alternative. A few excerpts from the article:

Legal scholars said the administration?s new approach, which avoids repeating claims of executive power that the White House has previously voiced, could avoid setting off fights with lawmakers. But the approach will make it harder to keep track of which statutes the White House believes it can disregard, or to compare the number of laws challenged by President Obama with former President George W. Bush?s record.

* * * * *

But Mr. Obama has not issued a signing statement since last summer, when one claim set off a bipartisan uproar in Congress. And the administration has decided that Mr. Obama will sometimes sign bills containing provisions it deems problematic without issuing a signing statement that challenges those sections.

Still, the administration will consider itself free to disregard new laws it considers unconstitutional, especially in cases where it has previously voiced objections elsewhere, officials said.

It sounds like the Administration will still let Congress know its objections (at least on occasion) in official (but nonpublic, or at least not widely distributed) statements known as Statements of Administration Policy. It may also set them forth in OLC opinions, which given the current Administration?s position on publication of such opinions, should be published fairly promptly. But given the volume of laws Congress makes, and the volume of problematic provisions in such laws (there are, for example, provisions that are problematic under INS v Chadha,  462 U.S. 919 (1983), in a surprising number of laws), I don?t think it?s feasible to have a full-blown OLC opinion for every law that contains provisions that are problematic under traditional Executive Branch positions. Thus, I think that the new policy may be less transparent than the old one.

I don?t think that the policy will make a huge practical difference, however. In my experience, most constitutional signing statements are made simply to ?lay down a marker? and let Congress know the government?s position: In practice, it?s been my experience that such provisions are overwhelmingly implemented as written. When they are not, there is already a provision in place, 28 USC 530D, that requires reporting to Congress decisions not to enforce provisions in a statute.

Full post as published by The Volokh Conspiracy on January 10, 2010 (boomark / email).