Having denounced for years the presidential practice of altering laws with signing statements, I now want the practice restored, because the current president has created something even worse.
When Bush and Cheney left the White House, they left in place five general ways to make laws: instruct Congress what to do, rewrite what Congress does with a signing statement, by-pass Congress with an executive order (or executive decree, or unratified treaty), by-pass everybody with a secret memo from the Office of Legal Counsel (OLC), and simply create illegal practices without any justification.
Arguably, I have listed these approaches in order from closest to furthest from the Constitution. I have omitted, of course, the creation of laws by the courts, as well as the selective enforcement of laws by the Justice Department, the pardon, and the grant of retroactive immunity.
I could not include the creation of laws by the legislative branch, since that doesn't happen very much anymore (although it remains a possibility should the Congress and the White House belong to different political parties). At best, Congress writes a law at the careful instruction of the president, reversing the appropriate relationship between legislators and an executive. Once a law is created by Congress, it can be altered with a signing statement, a practice Bush engaged in with great frequency and Obama used in the same manner, but less frequently, for the first five months of his presidency, after having campaigned against it.
It would be reassuring to imagine that once a law, or a portion of a law, makes it onto the books without being signing statemented, it is then safely and securely a law. Alas, this is not the case. The president can ask the OLC to write a memo, publicly or in secret, declaring blatant violation of a law to be legal. Or a president can simply violate the law without a word of justification. It is to these two alternatives that President Obama began resorting just as his use of signing statements began to face objections from Congress and the public. From day one he also made laws with executive orders.
Obama has created a modified version of the simply-commit-crimes approach by arguing that he can silently rely on previous signing statements by himself or Bush without repeating anything in a new signing statement. This means that the series of events runs as follows: Congress passes a law; the president undoes it with a signing statement; Congress passes the same law again; the president silently considers the law meaningless; Congress erroneously assumes the new law is law.
But, what happens if Congress passes a law and no previous signing statement or other decree has dealt with it. What can a president do (other than veto the bill or sign and obey it)? Obama has chosen to ask the OLC to write memos. Remember, this is the same office that claimed the power to legalize aggressive wars and torture in secret memos that were (are) treated as law. President Obama has publicly forbidden the prosecution of these crimes, and has kept the Justice Department's own report on the matter secret for another year.
Obama has created other new techniques as well, such as undoing our laws banning torture by declaring his own ability to ban, and therefore un-ban, torture. Meanwhile he's forbidden the prosecution for torture of anyone in the federal government except those who may have strayed from the sadistic formulae of the secret memos, thereby strengthening their importance. He's also perfected the approach of announcing one's illegal powers in important speeches, including claiming the power to launch illegal wars in a Nobel Peace Prize acceptance speech, and tossing out habeas corpus in front of the U.S. Constitution at the National Archives.
But, at least in these cases, the president is offering an announcement to the public for those who care to listen. That purpose was served by signing statements from the moment Charlie Savage called attention to their use by Bush in the Boston Globe to the moment Obama ceased using them. Savage's latest article in the New York Times explains Obama's current practices:
"The Obama administration is lowering the volume in a long-running argument between Congress and the executive branch over when, if ever, a president has the power to bypass federal statutes he has signed into law. . . . 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. . . .
"[T]he administration will consider itself free to disregard new laws it considers unconstitutional, especially in cases where it has previously voiced objections elsewhere, officials said. . . .
"The administration's views about certain provisions in the omnibus spending bill had previously been publicly communicated,' said Ben LaBolt, a White House spokesman, 'so it wasn't necessary to duplicate them in a signing statement.' . . .
"Representative Barney Frank . . . said it was "outrageous" to contend that if Congress disagreed with the administration's opinion that a provision would be unconstitutional, the president could sign the bill and disobey it. . . .- Advertisement -
"When Mr. Bush signed one such bill, he issued a signing statement instructing officials to view the law as merely advisory, and they attended at least one such meeting on his watch. By contrast, when Mr. Obama signed another bill with an identical provision, he did not specifically single it out for challenge. But his administration later obtained an Office of Legal Counsel opinion pronouncing it unconstitutional, and officials continued to attend such meetings.
"Unlike signing statements, opinions from the Office of Legal Counsel are often secret. Mr. Goldsmith said the administration's approach of issuing fewer signing statements would mean 'somewhat less accountability.'"
Now, I don't want the signing-statement back because I want Obama to use it to create policy. (There are comments on progressive websites asking Obama to create better healthcare with a signing statement, as if Obama has any interest in doing that, and as if the next president couldn't just throw it out.) I want the signing statement back, because presidential criminality without the signing statement has become worse. As with escalated wars and exaggerated claims of "state secrets", Obama has found a way to out-do Bush and Cheney.
And how can Congress respond? The Constitution already requires that presidents abide by the Constitution. No specific reform seems to meet the need here, and any specific reform could be undone or violated.