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.