Charlie Savage of the Times, who has earned his stripes on this issue, examines Obama’s instructions to the Justice Department that it consult with the Justice Department before relying on any signing statement issued by any of his predecessors. Apparently, Obama felt it was impolitic to pick on Bush alone, so he has required his minions to consult on 200 years of signing statements.
Obama also stated that he would use signing statements himself, though far more judiciously than Bush.
I just watched Keith Olbermann, who opined that Obama has it wrong. In his opinion the president should either sign without comment or veto. The issue is a bit more complicated that that, since, as Savage points out:
.. [L]egal scholars, while critical of Mr. Bush’s use of the device, said that 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.
As a practical matter, the president is charged with enforcing the law, and like any law enforcement officer, he has a lot of latitude in how he goes about enforcing them. If Obama does as he promises, his use of the signing statement may be non-controversial. What rankled most about the Bush signing statements was the audacity of them-in many cases the claims of unconstitutionality were obviously wrong, with legal reasoning direct from the John Yoo school of “let’s make it up”.
What Obama is now proposing to do with past signing statements is, among other things, a recognition that such statements are merely an expression of policy and have no legal effect whatsoever. What one president can state, another can un-state. Still, it would be best if there were some way to get meaningful and expeditious judicial review of these statements in appropriate cases. If any member of Congress who voted for the bill in question had standing to sue for declaratory relief, the problem would, perhaps, be largely solved.
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