Advancing a Free Society

President Obama’s Signing Statement on “Czars”

Tuesday, May 3, 2011

President Barack Obama recently issued a signing statement asserting his right to override a provision in the new budget bill that cut off appropriations for certain currently-vacant “czar” positions in the White House—the ones in charge of health care policy, climate change, the auto industry, and urban policy. It was an extraordinary statement, on two levels.

First is the fact that President Obama would issue a signing statement of this sort at all. His predecessor, George W. Bush, was raked over the coals for issuing signing statements, and during the campaign, Mr. Obama promised a change. In an October 2007 statement to the Boston Globe, Mr. Obama stated that although a President could issue a signing statement “to clarify his understanding of ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute the law,” he would “not use signing statements to nullify or undermine congressional instructions as enacted into law.” In fact, he called it “a clear abuse of power” for President Bush to “use such statements as a license to evade laws that the president does not like.”

In my judgment, Candidate Obama was wrong then, and President Obama is within his authority now. Notwithstanding all the commotion about President Bush’s signing statements, I can perceive nothing wrong with the practice. Signing statements inform Congress, and the public, that the President foresees constitutional issues that might arise in enforcing legislation. If that is what the President thinks, there is nothing wrong with his saying so, in a formal and public fashion. Almost every President back to Andrew Jackson has done this.

To be sure, there is a respectable argument that the President has a constitutional duty to veto every bill that that, in his judgment, violates our fundamental compact in any respect. Under this argument, the problem is not with the signing statement, but with the President’s failure to veto the offending legislation. That position makes logical and legal sense, but it has not been our practice for many decades.

At the time of the Founding, legislatures typically adhered to what is called a “single subject rule,” under which each piece of legislation dealt with only one subject. Under that system, the President could veto bills he regarded as unconstitutional without having to invalidate legislation on other matters, which might be vital to the national interest. As early as Washington’s first term, however, Congress started to combine unrelated measures, a practice called “log-rolling.” The insertion of objectionable provisions into must-pass statutes has made the claim that the President must veto all laws he thinks unconstitutional impractical.

For example, during World War II, Congress inserted in the Defense Appropriations Act a blatantly unconstitutional provision firing certain alleged Communists from federal jobs. President Roosevelt signed the bill, accompanied by a signing statement denouncing the provision as unconstitutional. The Supreme Court later held the provision unconstitutional by a vote of 8-0. Roosevelt could not have vetoed that bill without grave damage to the national interest. Arguably, the same is true of President Obama’s signing of the budget bill.

Thus, President Obama’s use of a signing statement is easily defensible, and stands in a long tradition. One might wish to hear an apology for his campaign attacks on his predecessor, or at least an acknowledgement and retraction of Candidate Obama’s prior utterances. But if imitation is the sincerest form of flattery, George W. Bush is a frequent subject of most sincere flattery by this Administration.

The second concern is more serious. Even assuming that signing statements are permissible as a matter of form, they are dangerous if they are based on excessive understandings of executive power. Last week’s signing statement is very hard to defend.

The statement broadly condemns the statute as a violation of the President’s “well-established authority,” and asserts a presidential “prerogative”—which means unilateral power, stemming from the Constitution and not from statute—to “obtain advice . . . not only from executive branch officials and employees outside the White House, but also from advisers within it.”

Yet it is Congress, and Congress alone, which is vested with the power of appropriations. Article I, Section 10 provides that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” The President has no “prerogative” to spend public funds without congressional approval. Moreover, Congress alone has the power to create, and eliminate, offices in the federal administrative structure. So, if Congress cuts off funding for certain positions in the White House, those positions are eliminated, and the President has to do without them. The President has the right to seek advice from anyone he wishes, but he has no prerogative to create offices or pay officials to generate that advice.

Hypothetically, one could imagine a situation in which Congress so constricted funding for the Office of the President that Chief Executive would be rendered unable to perform his constitutional duties. It would presumably be unconstitutional, for example, for Congress to cut off funding for any ink with which the President might veto a bill. But this budget measure is not even close to that scenario. President Obama’s White House is amply supplied with personnel, and there is no reasonable argument that these four positions (which are not even filled at the moment) are essential to his constitutional duties.

Moreover, Congress had a serious constitutional point when it eliminated these four positions. Presidents have the right to seek advice from White House officials, but they are required to govern through officers appointed by the advice and consent of the Senate, unless Congress itself authorizes some other form of appointment. As George Schultz recently explained in the Wall St. Journal, it has become all too common for Presidents to attempt to run the government through personal appointees, not accountable to anyone but themselves. President Obama is not the first to vest authority in unappointed “czars,” but he has carried this practice to an unprecedented extreme.

It was Congress’s judgment that these particular White House positions were usurping authority that should be exercised by properly appointed, and confirmed, officers in the relevant departments. President Obama’s claim that this congressional action violates the separation of powers “by undermining the president’s ability to exercise his constitutional responsibilities” has it exactly backwards. Congress—not the President--has authority to decide where, within the executive branch, power will be exercised. Far from being an essential “prerogative” of the President, “czars” are an anomalous departure from the constitutional scheme. Congress had every right to defund them.

(photo credit: Leader Nancy Pelosi)