President Obama Issues Another Signing Statement

(John Elwood)

In my efforts to bore readers into submission, I’ve blogged a fair amount here about presidential use of “constitutional signing statements.” As then-Assistant Attorney General Walter Dellinger explained early during the Clinton Administration, such signing statements are frequently used to “express[] the President’s intention to construe or administer a statute in a particular manner (often to save the statute from unconstitutionality).”

As I’ve discussed previously, earlier this year, President Obama discontinued the use of “constitutional signing statements” in response to the July 2009 kerfuffle with Congress (recounted here). It was reported that he would not stop construing laws to avoid conflicts with Executive Branch positions about the President’s powers; he’d just stop publicly announcing that fact in signing statements.

Well, some things in the Intelligence Authorization Act for FY 2010 apparently raised sufficient concerns that the President departed from his prior practice and he issued another constitutional signing statement today.

Today’s signing statement was of a common type: expressing the understanding that language in a statute providing for disclosure of information to Congress would be construed in manner consistent with the President’s duty to safeguard confidential information. See the testimony of this disreputable hack at pages 10–11 for more on this type of signing statement. 

Here is an excerpt of President Obama’s statement:

In a March 15, 2010, letter to Congress, the Department of Justice summarized my Administration’s understanding of a number of provisions. In particular, section 405 establishes an Inspector General of the Intelligence Community in the ODNI. In accordance with longstanding executive branch policy, my Administration understands section 405’s requirement that the Inspector General make an immediate report to congressional committees regarding investigations focused upon certain current or former IC officials as not requiring the disclosure of privileged or otherwise confidential law enforcement information. Moreover, the whistleblower protection provisions in section 405 are properly viewed as consistent with President Clinton’s stated understanding of a provision with substantially similar language in the Intelligence Authorization Act for Fiscal Year 1999. See Statement on Signing the Intelligence Authorization Act for Fiscal Year 1999: Public Papers of the Presidents of the United States, William J. Clinton, 1998 (p. 1825).

One of the common defenses of President Bush when he was being pilloried for his use of signing statements was that his statements were substantively indistinguishable from those of his predecessors. President Obama is taking no chances on that score. As with his signing statement of another bill during June 2009 (where he invoked a similar signing statement by President Reagan), today’s signing statement invokes a similar statement by President Clinton.

As suggested by the testimony above, President Obama could have found a more recent precedent among those issued by his immediate predecessor.  But that may not be a comparison that the Administration is trying to encourage.

The Volokh Conspiracy

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