White House Explains Obama's Flip-Flop on Signing Statements

By Fred Lucas | April 18, 2011 | 5:10 PM EDT

President Barack Obama. (AP Photo/Carolyn Kaster)

(CNSNews.com) – The White House defended President Barack Obama’s use of a so-called "signing statement" for the fiscal year 2011 budget compromise even though candidate Obama said in 2008: “We’re not going to use signing statements as a way of doing an end-run around Congress.”

White House Press Secretary Jay Carney said that back in 2008 Obama, meant the president should not abuse signing statements--not that he was against ever using signing statements.

“He never said he was opposed to all signing statements,” Carney told reporters on Monday. “We’ve pointed to numerous statements in the campaign where he made clear that every president must maintain the right, of course, must maintain the right, to have signing statements, to raise constitutional concerns or objections about the laws passed by Congress that he signs into law.”

Obama’s signing statement was in response to provisions in the budget compromise, reached on April 9 between Obama and congressional leaders, that dealt with funding of four White House “czars,” a provision to block funding for transferring terror suspects held at the Guantanamo Bay prison inside the United States, and to transferring Gitmo detainees to other countries.

A signing statement is a written comment by a president at the time of signing legislation, which often comprises little more than praising the bill. However, more controversial signing statements, such as some of those used by President George W. Bush regarding national security legislation, include claims that the president believes some part of the legislation he is signing is unconstitutional and that, therefore, he intends to ignore it or to implement it only in ways he believes constitutional.

Carney said that in 2008 Obama “was concerned with what he saw as an abuse of the signing statements by the previous administration. The positions he took with the signing statement on the budget bill are entirely consistent with that position.”

On May 19, 2008, at a campaign event in Billings, Mont., Obama criticized Bush for his use of signing statements.

“You know, we've got a government designed by the Founders so that there would be checks and balances. You don't want a president who’s too powerful or a Congress that's too powerful or a court that's too powerful. Everybody's got their own role,” then-Sen. Obama told the crowd. “Congress's job is to pass legislation. The president can veto it or he can sign it.”

White House Press Secretary Jay Carney. (AP Photo/Pablo Martinez Monsivais)

“But what George Bush has been trying to do, as part of his effort to accumulate more power in the presidency, is, he's been saying, ‘Well, I can basically change what Congress passed by attaching a letter saying, 'I don't agree with this part or I don't agree with that part. I'm going to choose to interpret it this way or that way,’” Obama said.

“That's not part of his power, but this is part of the whole theory of George Bush that he can make laws as he's going along,” said Obama. “I disagree with that. I taught the Constitution for 10 years. I believe in the Constitution, and I will obey the Constitution of the United States. We're not going to use signing statements as a way of doing an end-run around Congress.”

Carney pointed to a Boston Globe article published on Dec. 20, 2007, to argue that Obama’s position on signing statements has always been consistent.

In an interview, Globe reporter Charles Savaged asked Obama, “Under what circumstances, if any, would you sign a bill into law but also issue a signing statement reserving a constitutional right to bypass the law?”

Obama answered, “Signing statements have been used by presidents of both parties, dating back to Andrew Jackson. While it is legitimate for a president to 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, it is a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability.”

Obama went on to state that he would not use the statements to avoid congressional instructions.

“I will not use signing statements to nullify or undermine congressional instructions as enacted into law,” Obama said. “The problem with this administration is that it has attached signing statements to legislation in an effort to change the meaning of the legislation, to avoid enforcing certain provisions of the legislation that the president does not like, and to raise implausible or dubious constitutional objections to the legislation.”

“The fact that President Bush has issued signing statements to challenge over 1,100 laws--more than any president in history--is a clear abuse of this prerogative,” Obama added. “No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives; unfortunately, the Bush Administration has gone much further than that.”

The signing statement by Obama targets three provisions of the fiscal year 2011 budget bill.

The provision that has gotten the most attention is Section 2262, which defunds four White House policy advisors, sometimes referred to as "czars."

Section 2262 says, “None of the funds made available by this division may be used to pay the salaries and expenses for the following positions: (1) Director, White House Office of Health Reform. (2) Assistant to the President for Energy and Climate Change. (3) Senior Advisor to the Secretary of the Treasury assigned to the Presidential Task Force on the Auto Industry and Senior Counselor for Manufacturing Policy. (4) White House Director of Urban Affairs.”

(AP file photo)

In response, the signing statement says, “Legislative efforts that significantly impede the President's ability to exercise his supervisory and coordinating authorities or to obtain the views of the appropriate senior advisers violate the separation of powers by undermining the President's ability to exercise his constitutional responsibilities and take care that the laws be faithfully executed.”

Section 1112 bars the use of federal funds to transfer Guantanamo detainees into the United States, and section 1113 blocks money to transfer detainees to the custody of foreign countries unless certain conditions are met.

“The prosecution of terrorists in Federal court is a powerful tool in our efforts to protect the Nation and must be among the options available to us,” the statement says. “Any attempt to deprive the executive branch of that tool undermines our Nation's counterterrorism efforts and has the potential to harm our national security.”

Regarding transfers to foreign countries, the order says, “The executive branch has sought and obtained from countries that are prospective recipients of Guantanamo detainees assurances that they will take or have taken measures reasonably designed to be effective in preventing, or ensuring against, returned detainees taking action to threaten the United States or engage in terrorist activities.”