By Michael D. Shear
Washington Post Staff Writer
Tuesday, March 10, 2009
President Obama promised yesterday that he would rarely impose his own interpretation of legislation by attaching statements when he signs bills, pulling back significantly from the controversial use of the tactic by his predecessor, George W. Bush.
In a memorandum, Obama also ordered executive branch officials to consult with the attorney general before assuming that hundreds of Bush's past official statements on legislation remain in force.
"There is no doubt that the practice of issuing such statements can be abused," Obama said in the memo. "I will issue signing statements to address constitutional concerns only when it is appropriate to do so as a means of discharging my constitutional responsibilities."
Presidents have used signing statements to make technical corrections in legislation or to guide government officials about how to enforce laws.
But the practice became controversial as Bush dramatically increased its use. Critics accused him of using the previously little-known tactic to subvert the intent of Congress, especially on issues of terrorism, torture and domestic surveillance. In one case, for example, Bush asserted in a signing statement that his administration was not bound by a law he signed prohibiting torture of U.S.-held detainees.
Longtime Bush critics, however, excoriated Obama for failing to put a complete end to the practice. "There should be a clean break with the past on this," said Christopher Anders, senior legislative counsel to the American Civil Liberties Union. "The president shouldn't be asserting -- as President Bush did -- wholesale objections to entire sections of statutes and claiming some kind of presidential authority to ignore them."
Anders said his group appreciates Obama's pledge to reduce the number of signing statements. But he said the danger remains that, instead of using the statements to provide guidance to government officials, the new president could use them to ignore the will of the legislature.
American Bar Association President H. Thomas Wells Jr. said Obama has taken "significant steps" but has not gone far enough. "The proof is going to be in the pudding when we see his first presidential signing statement and how many times he uses it," Wells said.
Former Bush administration officials said they could detect little difference between Obama's promise and Bush's standards for issuing signing statements.
"This has been a standard practice going back decades. It's just when President Bush did it, his critics pounced," said former Bush spokesman Ari Fleischer. "They're going to do the same thing, whenever they feel like it."
Obama pledged to use signing statements sparingly and to be bound by "interpretations of the Constitution that are well founded." And he promised to restrict such statements by working with members of Congress to fix possible constitutional problems before bills reach his desk.
But the new White House stopped short of invalidating all of the signing statements that Bush issued during his eight years in office. The memo, first reported by the New York Times, says agencies should seek the attorney general's advice before enforcing the prior statements.
Bush did the same, according to a former counsel. "This isn't news. It's how the executive branch has long operated, and it's totally appropriate," said William A. Burck, who was deputy counsel to Bush.
Both presidential candidates last year criticized Bush for the practice. Obama accused Bush of attempting to change the meaning of legislation and of trying to thwart enforcement of some statutes. But Obama did not pledge to get rid of the practice, saying at the time that its limited use could help protect a president's "constitutional prerogatives."
Sen. John McCain (R-Ariz.) said during the campaign that he would never issue a signing statement as president. "Never, never, never, never. If I disagree with a law that passed, I'll veto it," he told The Washington Post.
Obama press secretary Robert Gibbs told reporters that the president wants to return the practice to its original intent.
"This president will use signing statements in order to go back to what has been previously done, and that is to enumerate constitutional problems that either the Justice Department or the -- our legislative counsel here see as a potential problem through their reading but not ask that laws be disallowed simply by executive fiat," Gibbs said.
Gibbs accused the former administration of issuing "hundreds and hundreds" of signing statements whose purpose was to "disregard portions of legislation or the intent of Congress."