Calling into question the legitimacy of all the signing statements that former President George W. Bush used to challenge new laws, President Barack Obama on Monday ordered executive officials to consult Attorney General Eric H. Holder Jr. before relying on any of them to bypass a statute.
But Obama also signaled that he intended to use signing statements himself if Congress sent him legislation with provisions he decided were unconstitutional. He pledged to take a modest approach when using the statements, legal documents issued by a president the day he signs bills into law that instruct executive officials how to put the statutes into effect. But Obama said there was a role for the practice if used appropriately.
“In exercising my responsibility to determine whether a provision of an enrolled bill is unconstitutional, I will act with caution and restraint, based only on interpretations of the Constitution that are well-founded,” Obama wrote in a memorandum to the heads of all departments and agencies in the executive branch.
Obama’s directions were the latest step in his administration’s effort to deal with a series of legal and policy disputes inherited from the Bush administration. They came the same day Obama lifted restrictions Bush placed on federal financing for research that uses embryonic stem cells.
Bush’s use of signing statements led to fierce controversy. He frequently used them to declare that provisions in the bills he was signing were unconstitutional constraints on executive power, and that the laws did not need to be enforced or obeyed as written. The laws he challenged included a ban on torture and requirements that Congress be given detailed reports about how the Justice Department was using the counterterrorism powers in the USA Patriot Act.
Since the 19th century, presidents have occasionally signed a bill while declaring that one or more provisions were unconstitutional. The practice became more frequent with the Reagan administration, but it initially drew little attention.
That changed under Bush, who broke all records, using signing statements to challenge about 1,200 sections of bills over his eight years in office, about twice the number challenged by all previous presidents combined, according to data compiled by Christopher Kelley, a political science professor at Miami University in Ohio.
Many of Bush’s challenges were based on an expansive view of the president’s power, as commander-in-chief, to take actions he believes necessary, regardless of what Congress says in legislation.
The American Bar Association declared that such signing statements were “contrary to the rule of law and our constitutional separation of powers,” and called on Bush and all future presidents to stop using them and to return to a system of either signing a bill and then enforcing all of it, or vetoing the bill and giving Congress a chance to override that veto.