Obama ran and is governing as a centrist, which is good in various ways, except to the degree that things are so skewered that being in the center is not really acceptable in various respects. On the latter front, I have referenced his stance on truth commissions, state secrets, and so forth. But, clearly, he has done a lot of good even this early in his administration. And, a middle of the road path is sane on many levels. For instance, earmarks. McCain's extremism on the topic is inane. It's an annoyance, can be abused, but also is a part of the system that will continue, one that actually has good points. Such perspective is but one reason Obama won.
The same can be said about signing statements. Obama said he opposed their abuse, but -- again unlike McCain -- was not an absolutist about the whole thing. Obama said that in various ways, signing statements are legitimate, and he would use them ... just with more care and discretion than his predecessor: "with caution and restraint, based only on interpretations of the Constitution that are well founded.” As I noted recently, it is this abuse that was the core problem, not the use per se. Likewise, the proof will be in the pudding -- that is, how they are used. Coverage should highlight this issue, including addressing in some fashion if the use is legitimate, and if it is truly comparable with his predecessor.
Numerous provisions of the legislation purport to condition the authority of officers to spend or reallocate funds on the approval of congressional committees. These are impermissible forms of legislative aggrandizement in the execution of the laws other than by enactment of statutes. Therefore, although my Administration will notify the relevant committees before taking the specified actions, and will accord the recommendations of such committees all appropriate and serious consideration, spending decisions shall not be treated as dependent on the approval of congressional committees. Likewise, one other provision gives congressional committees the power to establish guidelines for funding costs associated with implementing security improvements to buildings. Executive officials shall treat such guidelines as advisory. Yet another provision requires the Secretary of the Treasury to accede to all requests of a Board of Trustees that contains congressional representatives. The Secretary shall treat such requests as nonbinding.
-- "Obama issues first signing statement" (Salon)
Charles Savage did yeoman work over his former Boston environs on executive power issues during the Bush years, including a fundamentally important questionnaire given to presidential candidates. Now at the NYT, his article on Obama's first signing statement therefore is particularly worth reading. TPM and Salon also reported on the issue, but Savage included more details. The former two focused on provisions concerning spending, particularly ones that in effect were legislative vetoes requiring committee approval for certain actions. This is in clear opposition to INS v. Chada. IOW, for those who want court review when there is a debate between the branches (or a veto), the review has been held.
He would consider such things as advisory, but will be sure to reasonably keep the Congress informed. This is an omnibus spending bill, and Obama specifically addressed such legislation as warranting some middle of the road approach. This is acceptable, surely realistic, on some level. This was a budget already in the works, not one developed during the Obama Administration entirely, and thus provided less opportunity for feedback and consideration. One hopes that some controversial measures of this sort can be addressed during this process beforehand, so that signing statements are not the first time we hear about the issue. Not that executive/legislative jocking will end, it being inherent in the process. But, there are degrees.
Savage adds additional details, such as:
One of the budget bill's provisions that Mr. Obama said he could circumvent concerns United Nations peacekeeping missions. It says money may not be spent on any such mission if it entails putting United States troops under a foreign commander, unless Mr. Obama’s military advisers so recommend.
"This provision," Mr. Obama wrote, "raises constitutional concerns by constraining my choice of particular persons to perform specific command functions in military missions, by conditioning the exercise of my authority as commander in chief on the recommendations of subordinates within the military chain of command, and by constraining my diplomatic negotiating authority."
More troubling. To the degree it places "conditions" etc., it does so by the power of the purse. The legislature has every right to condition spending in this fashion and this on the face of it appears to me an abuse of the signing statement power. Now, the substance of the provision also is suspect -- it has a taint of right wing anti-UN about it. Ike can command foreign troops in various ways, sure, but hey, no Frenchie is going to command our troops! It's absurd. The UN will require various actions that require leadership. The U.S. will not be able to control everything or be able to be freestanding actors. So sorry. That's not how it works.
On another issue:
He also raised concerns about a section that establishes whistle-blower protections for federal employees who give information to Congress.
"I do not interpret this provision," he wrote, "to detract from my authority to direct the heads of executive departments to supervise, control and correct employees' communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential."
This is more a matter of nuance. What does "properly" mean and so forth. Still, to the degree whistleblowers need protection from executive departments, their very function to say things that the PTB might not wish to be heard, there is a troubling flavor to the statement. The statement implies to some extent that if heads say something is "confidential" (state secret alert!), it could block whistleblowers from reporting to Congress on important matters that again is something Congress has the power to demand. Both statements can be defended as necessary to guard executive power over underlings, though the former hits closer to the core of executive power. This one however is more domestic in scope and bad policy to boot. And, when would it be "unlawful" for whistleblowers to go to Congress?! Are we to trust the executive -- who the whistle is being blown on! -- that "there's nothing to see here?" Absurd.
Savage ends with some context:
Many of Mr. Bush's signing statements made arguments similar to those made Wednesday by Mr. Obama. But Mr. Bush invoked particularly contentious claims of executive authority, as when he declared that a ban on torture violated his powers as commander in chief.
The Bush administration defended its use of signing statements as lawful and appropriate. The American Bar Association, on the other hand, condemned them as "contrary to the rule of law and our constitutional separation of powers," and called on presidents to stop using them.
Other legal specialists have argued that there is a role for the practice so long as presidents invoke only mainstream legal theories. They say Congress sometimes includes minor constitutional flaws in important bills that are impractical to veto.
The word "similar" will rankle with some, but the whistleblower provision is not so far afield from the last administration to be free of such taint. The commander-in-chief power defended, ironically addressing a conservative friendly provision, is less controversial. After all, what is the substantive effect of such a provision? What military commander would overrule the wishes of the Obama Administration? And, if s/he did, Obama clearly has the power to remove said miscreant, making the whole thing basically symbolic. The legislative veto matters also are not really controversial, and a careful statement is welcomed as a matter of full disclosure.
OTOH, how are they similar overall? Details? It also is not surprising that the Bush Administration defended what it did. It would be a tad bit surprising if it did not. As to the ABA, I question if their stance is so black/white, but if it is, that is a tad extreme. Simply put, laws provide enough discretion that signing statements are useful for that reason alone. As to cases of executive nullification, which is but one aspect of signing statements (which sometimes are just a sort of press release, btw), that is more troubling. Still, those "other legal specialists" have a point, and in various respects, Obama clearly is taking a reasonable centrist path on this issue ... one he was upfront about during the campaign.
This in no way means there will be difficulties and line crossing involved. Defense of executive power is part of the job, but we still have checks and balances. The whistleblower provision alone underlines the point. Continue to be on guard, since even our friends slip now and again.
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* Nancy Pelosi's daughter is also out there making documentaries, often on conservative subjects. We also have been hearing from McCain's daughter -- having dating woes since she doesn't like Dems or Republicans who are too gung ho -- including how she doesn't like Ann Coutler and on the importance of something of a moderate path that includes providing a critical take on one's own movement. This all is welcomed.
She was on Rachel Maddow last night and gets an "A" for enthusiasm, if not coming off as totally mature as of yet. It is unfortunate that RM didn't ask her why she is so excited about the Republicans as such. M. was on for an extended interview after all, and it would have been a better question than a half-hearted "are you really supportive of all their policies" question, letting her off the hook as about as clued in on economic issues as her dad. But, she has an excuse -- she is in her mid-20s and did not run for President.
Anyway, hopefully, other Republicans will go on the show. It can be more useful than having the likes of Frank Rich. BTW, Keith Olberman had an extended anti-O'Reilly segment on last night. Keith's speaking to the choir qualities annoy, but there is a place for addressing right wing talking points. He provided counterpoints with facts. This is appreciated.