The Fettered Executive

By Terry Eastland
Published March 13, 2009 3:22pm ET
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Yesterday John McCormack posted here the clip of then candidate Obama declaring that George Bush used signing statements to “accumulate more power in the presidency.” The implication of Obama’s remarks was that Bush aimed to accumulate more power than the Constitution vests in the executive, that Bush was sort of, well, unconstitutional! Seldom if ever did the once con-law professor Obama or his legion of lawyer admirers contemplate any executive power grabs or intrusions (to put it more gently) on executive authority by Congress (much less by a Democratic Congress) when it passes a bill. But lo, in signing the omnibus spending bill, Obama issued a statement (his very first signing statement) that is shot through with concern about precisely those things. Consider:

“[Certain provisions of the bill . . . would unduly interfere with my constitutional authority . . . by effectively directing the Executive on how to proceed or not proceed in negotiations or discussions with international organizations and foreign governments. I will not treat these provisions as limiting my ability to negotiate and enter into agreements with foreign nations.” (Italics added.)

And:

The bill’s prohibition on the use of certain funds to employ the Armed Forces [be prepared for a long sentence] “in United Nations peacekeeping missions under the command or operational control of a foreign national unless my military advisers have recommended to me that such involvement is in the national interests of the United States . . . raises constitutional concerns by constraining my choice of particular persons to perform specific command functions in military missions, by conditioning the exercise of my authority as Commander in Chief on the recommendations of subordinates within the military chain of command, and by constraining my diplomatic negotiating authority. Accordingly, I will apply this provision consistent with my constitutional authority and responsibilities.” (Italics added.)

And:

Concerning the bill’s prohibition of “the use of appropriations to pay the salary of any Federal officer or employee who interferes with or prohibits certain communications between Federal employees and Members,” of Congress, “I do not interpret [it] to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees’ communications with the Congress in cases where such communications would be unwlawful or would reveal information that is properly privileged or otherwise confidential.”

And, under the heading of “Legislative Aggrandizements,” no less:

“Numerous provisions . . . purport to condition the authority of officers to spend or reallocate funds on the approval of congressional committees. These are impermissible forms of legislative aggrandizement in the execution of the laws other than by enactment of statutes.”

And:

Regarding “several provisions . . . that effectively purport to require me and other executive officers to submit budget requests to the Congress in particular forms, they shall be treated as merely “precatory” since “the Constitution gives the President the discretion to recommend only ‘such measures as he shall judge necessary and expedient.'”

Here’s another area of governance in which Obama is starting to resemble Bush, whose record number of signing statements evinced a commendable jealousy for the very same Article II prerogatives as Obama’s first statement shows. This is a welcome development on Obama’s part, though the hypocrisy is, as we now have to say with some regularity, audacious. By the way, Obama might want to fire the lawyer who drafted that paragraph referring to “impermissible forms of legislative aggrandizement in the execution of the laws other than by enactment of statutes.” Did Obama really intend to say that there are permissible forms of this kind of legislative aggrandizement?

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