Obama to issue signing statement to object to Gitmo restrictions?

posted at 12:55 pm on January 4, 2011 by Ed Morrissey

As a candidate, Barack Obama repeatedly and vociferously objected to George Bush’s use of signing statements, almost as often as he objected to the existence of the Guantanamo Bay detention facility for captured terrorists. Here is candidate Obama insisting that signing statements insult the balance of power in the federal government and his explicit pledge not to engage in the practice, telling a crowd that “We’re not going to use signing statements to do an end run around Congress”:

That was then, and this is now. Now Obama is the President, and now he likes the idea of end runs around Congress — at least symbolically:

President Obama may formally object to a provision that would prohibit the use of any funds to transfer detainees from the detention facility in Guantanamo Bay to the United States for any purpose.

The provision — attached to the Defense Authorization bill — would be a critical blow to the president’s stated goal of trying some Guantanamo detainees in civilian courts. Attorney General Eric Holder sent a letter to Congress late last year calling the provision “an extreme and risky encroachment on the authority of the executive branch to determine when and where to prosecute terrorist suspects.”

A final decision on whether to issue a so-called signing statement, which was first reported by ProPublica, and its scope, has yet to be made by the president and his senior staff.

Even with the signing statement, though, the White House says that Obama won’t tempt Congress by violating the provision.  He wants to use the signing statement as a way to announce his opposition to the bar on using funds to transfer Gitmo detainees to the US.  It could also serve as a basis for a constitutional challenge in court, but that has little chance of success, as the Constitution clearly and explicitly gives Congress the power to fund as well as defund executive-branch agencies such as the Department of Justice and to pass requirements on the use of those funds.

Equally futile will be the White House’s stated objective of removing the restriction by asking Congress to repeal it.  The Congress that passed the provision had large Democratic majorities; Obama now has to deal with one controlled in part by Republicans, and in part by a much smaller Democratic majority.  That means no deal, as Obama knows well enough on his own.

This is strictly a grandstanding measure, one with a heaping helping of hypocrisy on top.  The “Constitutional law professor” knew full well that the signing statements issued by Bush had the exact same legal force as the one Obama contemplates using now.  Their only value is to clarify intent in a court challenge over the execution of a law signed by the President, as well as to make a political statement about a particular Congressional action.  They were never — never – the threat to the republic that hysterics like Obama painted them to be.  Obama demanded that a standard be used that he’s unwilling to meet himself, the “veto or sign and shut up” standard.


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hypocrite, they name is obama

cmsinaz on January 4, 2011 at 12:59 PM

Obama demanded that a standard be used that he’s unwilling to meet himself, the “veto or sign and shut up” standard.

that standard is hanging out with the paygo law….

cmsinaz on January 4, 2011 at 1:00 PM

that standard is hanging out with the paygo law….

cmsinaz on January 4, 2011 at 1:00 PM

Not to mention the health care hearings being on CSPAN and all bills being on the internet so we could read them…

ladyingray on January 4, 2011 at 1:03 PM

He must have fireproof pants.

50sGuy on January 4, 2011 at 1:04 PM

Bush’s Third Term,
I like to rub things like this into the faces of the libs I know.

darwin-t on January 4, 2011 at 1:04 PM

He’ll set a new record for signing statements in the next 18 months…

PatriotRider on January 4, 2011 at 1:06 PM

ladyingray on January 4, 2011 at 1:03 PM

yepper

cmsinaz on January 4, 2011 at 1:06 PM

Permit me to repeat by Headline comment.

But several other future members of the Obama legal team argued at the time that signing statements were lawful and appropriate so long as the president invoked only mainstream legal theories. Mr. Obama adopted the latter approach, pledging greater restraint.

And who will determine what are “mainstream legal theories“? ObaMao? His crack team of ideological jurists?

Congress had better stand up to this tyrant in the WH. He means to seize powers from the legislative body and defy Constitutionally defined powers/authority as written in this founding document.

onlineanalyst on January

onlineanalyst on January 4, 2011 at 1:08 PM

From the headlines comments:

So some of Dear Leader’s advisers think ignoring the law, passed with real bi-partisan support, that ties his hands on the Gitmo terrorists is a good idea. These morons may finally provide the vehicle that those opposed to signing statements have awaited: An act of defiance of Congressional authority so egregious that the whole process may be found to be unconstitutional.

I love the smell of napalm, uh, litigation, in the morning. Smells like victory.

novaculus on January 4, 2011 at 11:51 AM

Ed, why not just import comments whenever you promote a Headline?

novaculus on January 4, 2011 at 1:09 PM

O/T: Per Breitbart, John Roberts of CNN is leaving for Fox News.

silvernana on January 4, 2011 at 1:09 PM

As for the Signing Statement, each of these statements allows all to see whatever interpretation the Executive branch will apply to the law. The Signing Statements can impart no authority, but rather only represent a position of interpretation. Previously, these positions were understood within the Executive branch as internal policies that were unseen by the public and these positions were made public only when a statue was put up for judicial review or as regulations, stemming from these laws, were disclosed in the Federal Register.
The Signing Statements represent a level of transparency by the Executive branch. If all bills had a Signing Statement, we would all be better served.

The downside of a Signing Statement is that it removes the ability to flip-flop or in most cases even be flexible. It has the real effect of starting the judicial review process without even filing a suit, as it locks in many aspects of the Executive branch position.

While many will view a Signing Statement on the Defense Authorization bill as an “evil” act. It will be even more “evil” if there is no statement. The opponents of the Gitmo shutdown should be waiting with baited breath to see what clarifications the Executive branch considers important enough to put into a Signing Statement, as this is the minimal test they will have to clear to have the court consider any reversals.

J_Crater on January 4, 2011 at 1:09 PM

This is strictly a grandstanding measure, one with a heaping helping of hypocrisy on top.

If Barry excels at anything, it’s HYPOCRISY.

GarandFan on January 4, 2011 at 1:13 PM

That was then. This is now. Chapter XXXXXXXXXXIX.

tru2tx on January 4, 2011 at 1:17 PM

The “Constitutional law professor”

Bwahahaha.

Speaking of Harvard, last week I passed along the amusing story of Adam Wheeler, who faked his way into, and nearly faked his way thru, that esteemed institution. Puffington Host now has a fascinating take on this.

So, basically, America’s best university, home to the future leaders of our good country, got punk’d, for lack of a better phrase. By a 20-year-old. Adam Wheeler challenged the admissions gods and won.

According to Harvard’s website, each application to the school is read by two or more members of their admissions committee, after which the files “are considered very carefully in a series of committee meetings where a majority vote is required for admission.” And yet. Wheeler flew in as a transfer student in 2007. And it wasn’t as if he was hiding the holes in his story from Harvard’s gatekeepers. He had authorized the admissions committee to corroborate his error-heavy application by requesting his (nonexistent) secondary school records. Evidently, they declined.

Sure, qualified students are accepted into Harvard each year, ones who presumably did not fabricate their accomplishments. But after the Wheeler fiasco, how can we be so sure?

Del Dolemonte on January 4, 2011 at 1:23 PM

O/T: Per Breitbart, John Roberts of CNN is leaving for Fox News.

silvernana on January 4, 2011 at 1:09 PM

HA had a Headlines thread on this story last night. Has been moved off the front page by now I think.

Del Dolemonte on January 4, 2011 at 1:24 PM

The poor old Constitutional Law Prof forgot about Art. I, Sec. 8 powers granted to Congress:

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

But then that takes this thing known as ‘reading comprehension’, which is something that is lacking from the Constitutional Law Prof.

ajacksonian on January 4, 2011 at 1:28 PM

“If you like your plan, you can keep your plan”

SouthernGent on January 4, 2011 at 1:28 PM

Let me be clear….

When Bush did it, it was wrong.

When Obama does it, bow down and praise the messiah for being so smart, and so wise.

*Now I need a shower*

capejasmine on January 4, 2011 at 1:33 PM

I often wonder how the conversation Obama has with his staff goes when he is thinking about making a decision contrary to a previous pledge, maybe something like this? Obama: “I’m thinking about [insert violation of a campaign pledge].” Staff member: “But sir, you said [insert his campaign pledge].” Obama: “So?”

Conservative in NOVA on January 4, 2011 at 1:34 PM

Even with the signing statement, though, the White House says that Obama won’t tempt Congress by violating the provision.
. . .
This is strictly a grandstanding measure,

Obama is raising a constitutional issue by claiming the authority to ignore legislation passed by congress.

The constitutional responsibilities of the president are to execute the laws that congress passes. A president who claims to ‘object’ to a law that has been passed is setting up the position where he will next refuse to enforce law that he does not agree with.

Skandia Recluse on January 4, 2011 at 1:40 PM

and if you like your health care plan you can keep it, and if you like your dr., you can keep your dr., and if we pass the health care bill it will reduce the deficit! The guy has no core, just a vacuum.

rjoco1 on January 4, 2011 at 1:49 PM

Skandia Recluse on January 4, 2011 at 1:40 PM

Well…he is a dictator in the making. I have no doubts all this skirting of congress, and laws, and ruling by executive orders, and regulation proves just that. This man is hell bent on being a dictator.

capejasmine on January 4, 2011 at 1:51 PM

Ed, why not just import comments whenever you promote a Headline?

novaculus on January 4, 2011 at 1:09 PM

Comments that were left at another site? Why would HA want to do that?

Midas on January 4, 2011 at 1:56 PM

like he’s actually going to close it down…. ha!

thebrokenrattle on January 4, 2011 at 1:56 PM

The Obama Doctrine: lie to suckers to win power, and then weasel about everything to keep it.

profitsbeard on January 4, 2011 at 2:06 PM

President Obama may formally object to a provision that would prohibit the use of any funds to transfer detainees from the detention facility in Guantanamo Bay to the United States for any purpose.

Congress had better stand up to this tyrant in the WH. He means to seize powers from the legislative body and defy Constitutionally defined powers/authority as written in this founding document.

Does anyone remember the outrage in the MSM when President Nixon tried to “impound” funds voted by Congress to use them for a different purpose than Congress intended? How many of the lefty media would compare Obama to Nixon now?

Most people, and most Congress-critters, have a worse NIMBY complex for Gitmo terrorists than they would for a nuke plant on the San Andreas fault. Not even super-liberal (up)Chuck Schumer wanted KSM tried in New York City.

A little reminder to Barack Hitler Obama: The House of Representatives, from which all revenue-raising bills must originate, has a Republican majority. If Obama starts playing games with money voted by the new Congress, things could get really ugly. Cut off the money, starve the beast!

Steve Z on January 4, 2011 at 2:33 PM

Comments that were left at another site? Why would HA want to do that?

Midas on January 4, 2011 at 1:56 PM

No, I mean the comments left here at the headline link. Sorry if I wasn’t clear.

novaculus on January 4, 2011 at 5:29 PM