Today, Obama signed the uber-porky federal budget, which is plenty bad enough at a time when the federal government needs more than ever to watch every penny. But along with it, he included a signing statement declaring that he considered 5 of the provisions he was signing into law unconstitutional, and would not enforce them.
Good for him. Kind of.
Of course, the immediate thought is of the Hope&Change™ double standard – George Bush was excoriated for employing such methods, and we were constantly assured such things were a nefarious power grab that confirmed deepest fears about our descent into a Hitlerian wonderland for the mustache-twirlers. Obama is a rank hypocrite for using them himself after having been such a powerful voice in that chorus, as is any Bush hating Obama supporter who ignores or attempts to justify the current President’s actions while still deriding this predecessor for doing the same thing. I cut them no slack for such… flexible principles. But then, it’s funny how actual responsibility adjusts one’s view of things.
I just wish the Obama administration would admit that once in awhile.
When Bush signed McCain-Feingold, he expressed a great deal of concern that it was unconstitutional – and then signed it anyway, despite having said during the campaign that he would veto such legislation on free speech grounds. His excuse was that he would defer to the courts to make the ultimate legal conclusion.
This was wrong. While a final arbiter of just what the Constitution demands is appropriately the judiciary, that doesn’t relieve the other two branches from exercising their own discretion, and acting with independent fealty to the Constitution.
The effect of this is the distastefully childish one of, “Let’s just do whatever we want until Someone In Authority tells us we can’t.” Adults take responsibility for their own lives, their own decisions, and their own responsibility to adhere to the rules we’ve all agreed to live by as a society. The Congress and the Commander in Chief should do the same.
There are legitimate differences out there in Constitutional interpretations, which is why we need a final arbiter. But until a judicial decision has been rendered, the independent duty of each branch cannot be ignored or punted. When the President thinks something Congress has enacted is unconstitutional, he ought to veto it, and if overridden, refuse to enforce it until the federal courts have had their say. If the Congress thinks the President is overstepping his Constitutional authority to act, it should pass a law specifically prohibiting the behavior the President is engaged in.
The problem with a full veto, though, is that Congress doesn’t do much of anything individually. Too often the bill comes across the President’s desk with thousands of elements and programs all packaged up. A veto could well make the perfect be the enemy of the good, and time is a real issue when funding deadlines have to be met. So what to do with a small percentage of bothersome provisions?
People have advocated the line-item veto as the solution to this for years, but that would take a Constitutional amendment. So what are the solutions?
Well, first of all, the best solution would be if Congress didn’t feel the need to cram every damn thing into gigantic omnibus bills that the President was forced to take or leave as a whole. Such methods are legislative malpractice and dereliction of duty – there’s no way something that big can be legitimately debated or even thought about before voting on it. But that’s the way it is, and it’s not going anywhere.
So until we can get the Congress to draft smaller, more individualized bills, the signing statement is a good interim solution. (Well, maybe “good” overstates it. “Least bad for now” is more like it.) If Obama thinks in good faith that the Constitution prevents him from enforcing certain provisions, or that it prevents the Congress from hemming him in in an arena where Article I gives exclusive dominion to the executive, he should refuse to act on it until the courts rule otherwise.
I don’t like it – don’t get me wrong. That’s the “kind of.” I don’t like the President using this little mini-veto that can’t be overturned with a 2/3rds majority vote. If Obama knew how to exercise a little leadership in his own party, maybe he wouldn’t have had to issue a signing statement complaining about the bill in the first plce. (Ditto for Bush, who had the same problem in a GOP Congress.) But I think absent more comprehensive reform in how federal legislation is enacted, it’s the least bad of the options available to the President to uphold his oath to support and defend the Constitution.
The other thing about signing statements is that it gives Congress a heads up to either file a lawsuit or re-write that portion of the bill that the President finds offensive to the Constitution. If Bush was really the despot or tyrant the radical left accused him of being, he would have signed the bills and then quietly ignored them.
I probably disagree with most of Obama’s Constitutional interpretations. But he is the President, and he’s entitled – obligated, in fact – to make them. I’m glad to see him taking that responsibility, at least, seriously.
And of course, I’m looking forward to Obama’s apology to George Bush, and to him expressing his appreciation for W. for pioneering the use of this tool.