Broken Government

Published — March 10, 2009 Updated — May 19, 2014 at 12:19 pm ET

Obama distances himself from Bush on signing statements


If President Obama is keeping a to-do list of issues from the Bush era he needs to resolve, he checked off another one yesterday. The prez circulated a memo to the heads of executive departments and agencies laying down the principles he will follow henceforth in issuing “signing statements.”

PaperTrail readers might recall that signing statements are generally used by presidents to attach specific constitutional interpretation or concerns to a bill while signing it into law. The Center’s Broken Government project highlighted President Bush’s frequent use of signing statements, which claimed “the authority to disobey more than 750 laws enacted since he took office,” according to a 2006 Boston Globe report. Bush made such frequent use of signing statements that a bipartisan task force of the American Bar Association was compelled to issue a warning that Bush and his successors should simply “cease the practice.”

Obama’s self-imposed strictures include informing Congress ahead of time about constitutional concerns in impending legislation and avoiding an assumption that legislation is unconstitutional.

Ohio State Law Professor Peter Shane wrote in an email that Obama’s memo “embodies a salutary understanding of presidential authority that properly takes account of Congress’s primacy in the legislative process and affirms the president’s obligation to the rule of law.”

But not everyone agrees. The Washington Post cited former Bush administration officials who said 43’s use of signing statements was not excessive and followed precedent set by previous administrations.

“This has been a standard practice going back decades. It’s just when President Bush did it, his critics pounced,” former Bush spokesman Ari Fleischer told the Post.

For critics, though, Obama’s memo is unlikely to “wipe away the Bush administration’s impact on the nation,” according to Mitchel A. Sollenberger, an assistant professor of political science at the University of Michigan-Dearborn. “Wiretapping, renditions, the denial of due process rights… all occurred during the last eight years. All Obama can do is try to break away and change the policies that he considers unconstitutional and unworkable.”

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