Obama Looks to Limit Impact of Tactic Bush Used to Sidestep New Laws

WASHINGTON — Calling into question the legitimacy of all the signing statements that former President George W. Bush used to challenge new laws, President Obama ordered executive officials on Monday to consult with Attorney General Eric H. Holder Jr. before relying on any of them to bypass a statute.
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Text: Obama’s Memo on Signing Statements (pdf)
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But Mr. Obama also signaled that he intended to use signing statements himself if Congress sent him legislation with provisions he decided were unconstitutional. He promised to take a modest approach when using the statements, legal documents issued by a president the day he signs bills into law that instruct executive officials how to put the statutes into effect. But Mr. Obama said there was a role for the practice if used appropriately.

“In exercising my responsibility to determine whether a provision of an enrolled bill is unconstitutional, I will act with caution and restraint, based only on interpretations of the Constitution that are well-founded,” Mr. Obama wrote in a memorandum to the heads of all departments and agencies in the executive branch.

Mr. Obama’s directions were the latest step in his administration’s effort to deal with a series of legal and policy disputes it inherited from the Bush administration. They came the same day Mr. Obama lifted restrictions Mr. Bush placed on federal financing for research that uses embryonic stem cells.

Mr. Bush’s use of signing statements led to fierce controversy. He frequently used them to declare that provisions in the bills he was signing were unconstitutional constraints on executive power, and that the laws did not need to be enforced or obeyed as written. The laws he challenged included a ban on torture and requirements that Congress be given detailed reports about how the Justice Department was using the counterterrorism powers in the USA Patriot Act.

Since the 19th century, presidents have occasionally signed a bill while declaring that one or more provisions were unconstitutional. The practice became more frequent with the Reagan administration, but it initially drew little attention.

That changed under Mr. Bush, who broke all records, using signing statements to challenge about 1,200 sections of bills over his eight years in office, about twice the number challenged by all previous presidents combined, according to data compiled by Christopher Kelley, a political science professor at Miami University in Ohio.

Many of Mr. Bush’s challenges were based on an expansive view of the president’s power, as commander in chief, to take actions he believes necessary, regardless of what Congress says in legislation.

The American Bar Association declared that such signing statements were “contrary to the rule of law and our constitutional separation of powers,” and called on Mr. Bush and future presidents to stop using them and to return to a system of either signing a bill and then enforcing all of it, or vetoing the bill and giving Congress a chance to override that veto.

The Bush administration defended its use of signing statements as lawful and appropriate. And other legal scholars, while critical of Mr. Bush’s use of the device, said the bar association’s view was too extreme, because Congress sometimes passed important legislation that had minor constitutional flaws. They said it would be impractical to expect a president to veto the entire bill in such instances.

Mr. Obama’s approach may be geared to that kind of legislation. He issued the instructions as Congress was finishing up a huge omnibus spending bill filled with provisions that could affect presidential power, like requirements to get the approval of a committee before taking certain actions.

In his memorandum, Mr. Obama wrote, “Particularly since omnibus bills have become prevalent, signing statements have often been used to ensure that concerns about the constitutionality of discrete statutory provisions do not require a veto of the entire legislation.”

The Obama administration portrayed its approach as a major departure from that of Mr. Bush. But Senator Arlen Specter of Pennsylvania, the ranking Republican on the Senate Judiciary Committee, disagreed, saying Mr. Obama was “wrong” to embrace the view that signing statements can be constitutionally legitimate.

“I think the Constitution is explicit as to how you handle these situations, and if the president thinks something is unconstitutional, then he ought to veto it,” said Mr. Specter, an outspoken critic of Mr. Bush’s signing statements.

He called the practice a “dodge” and “a disregard for the separation of powers and co-equal branches of government.”

“It’s just insulting,” Mr. Specter said, “and there is no reason why we can’t follow the Constitution even if it takes a few days more.”

But Robert S. Turner, a Reagan administration lawyer who has testified before Congress in support of signing statements, said he was pleased Mr. Obama was willing to use the device if he decided that signing a bill was in the national interest but that obeying part of it would be unconstitutional — including provisions that might amount to an “usurpation of presidential power.” Some bills, Mr. Turner argued, “are unvetoable,” because parts are urgently needed.

Mr. Obama’s directive was consistent with what he said in the 2008 presidential campaign, when he criticized Mr. Bush’s use of signing statements as an abuse. He said he would use them in a more restrained manner. By contrast, the Republican presidential nominee, Senator John McCain of Arizona, pledged never to issue a signing statement.

In his directive, Mr. Obama said any signing statement issued before his presidency should be viewed with doubt, placing an asterisk beside all of those issued by Mr. Bush and other former presidents.

“To ensure that all signing statements previously issued are followed only when consistent with these principles,” he wrote, “executive branch departments and agencies are directed to seek the advice of the attorney general before relying on signing statements issued prior to the date of this memorandum as the basis for disregarding, or otherwise refusing to comply with, any provision of a statute.”