One of my first columns for Roll Call was about the furor over President George W. Bush’s use of signing statements (“The Problem Isn’t Signing Statements; It’s Enforcing the Laws ,” Aug. 14, 2006). I was reacting to an American Bar Association task force report that concluded that such statements, issued when a president signs a bill into law, are “contrary to the rule of law and our constitutional system of separation of powers.”
The report went on to recommend that the president veto any law he considers unconstitutional and that Congress enact legislation requiring the president to provide Congress with copies of all signing statements along with the reasons and legal basis for any provisions of law he claims authority to disregard, ignore or refuses to enforce. Moreover, Congress was urged to give itself standing in the courts to obtain a declaratory judgment on the legality of signing statements. The ABA’s House of Delegates subsequently endorsed the report.
By the end of President Bush’s two terms he had issued 161 signing statements affecting over 1,100 provisions of law. By the 2008 elections signing statements became such a symbol of White House power abuse that Republican presidential nominee John McCain promised he would not use them if elected and Democratic nominee Barack Obama vowed not use them “to nullify or undermine congressional instructions as enacted into law.”
The issue recently resurfaced when a national security aide to President Obama pointed to his signing statement on the National Defense Authorization Act for Fiscal Year 2014 to justify not notifying Congress 30 days in advance of releasing five Taliban prisoners from Guantánamo Bay, Cuba. The prescient president had warned in the statement that the provision “in certain circumstances could violate constitutional separation of powers principles” by denying the executive branch “the flexibility … to act swiftly in conducting negotiations with a foreign country regarding the circumstances of detainee transfers.”
Since he became president, Obama has issued 27 signing statements affecting 97 specified provisions of law. Fifteen of the 27 statements (56 percent) raised constitutional concerns, compared to 127 (79 percent) of Bush’s 161 signing statements.
To its credit, the ABA sent a letter to President Obama on the occasion of his 20th singing statement in December 2011, reiterating the organization’s opposition to the practice. Moreover, the organization wrote to all senators last November supporting the proposed NDAA detainee language, including the 30-day notice requirement. In signing the bill on Dec. 28, 2013, the president did not say he would flout the notice requirement, or another constitutionally objectionable section, but that he would “implement them in a manner that avoids constitutional conflict.”
My earlier column defended the right of presidents to comment on controversial provisions in bills they sign as part of their duty to “take care that the laws be faithfully executed.” Presumably that includes the right to state how they will implement difficult provisions. I suggested Congress should be grateful for signing statements as early warning systems of where to look for possible future lapses in executing laws. Both Congress and the courts are there to push back if a president oversteps or under-complies.
Members of Congress were understandably upset at not being notified in advance of the release of the five Taliban prisoners from Guantánamo in exchange for American Army Sgt. Bowe Bergdahl, especially given the president’s specific assurance in January 2013 that he would consult them if talks resumed on a prisoner swap then being considered.
It can be argued that the defense act’s Guantánamo detainee treatment and release provisions fall squarely within Congress’ Article I authority “to make rules concerning captures on land and water.” But the act does not contemplate nor reference specific prisoner exchanges which have always been considered the ultimate prerogative of the president as commander in chief. It’s the difference between making general laws of war and taking specific actions during war when timing is often critical.
Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.