Friday, August 16, 2013

Obama ends the faux "signing statement" becoming a dictator

Okay, the title is somewhat hyperbolic. Obama is not actually a dictator (as much as he may imagine otherwise). But he did put an end--quite unintentionally--to the entirely manufactured signing statement controversy. Remember that? It actually garnered Charlie Savage a Pulitzer.

A brief recap: in 2006, Charlie Savage of the Boston Globe "discovered" something, that President Bush was issuing signing statements about various pieces of legislation he had signed into law. Past Presidents had done the same. Signing statements are not actual legal instruments, they are not actually a part of the legislation they reference, and they--in and of themselves--do not restrict future Presidents (or Congresses) in any way, whatsoever. More often than not, signing statements are nothing more than commentary on a piece of legislation.

But on occasion, signing statements also indicate a position on a given portion(s) of a bill. In fact, a President might (as a number of them have, going back to FDR) indicate an unwillingness to enforce a particular provision of a bill being signed into law on Constitutional grounds. Such a statement would go something like this: "I'm signing this bill into law because it is needed, however I believe section xyz contains unconstitutional requirements so I will not enforce that section and Justice will not defend it in court if it is challenged."

Got that? Such a statement is a warning, with regard to a potential future, nothing more. Many people--starting with those in our erstwhile Fourth Estate--were and are unable to process this. They believe such a statement is, itself, akin to an Executive Order, insofar as it is not just a warning but an actual addition to the legislation in question that carries real legal weight as a Presidential "decree." It's not. I don't know how many hours I've spent arguing this point with various people--quite a few--but some just refuse to understand (or are incapable of understanding). They continue to insist signing statements are exactly what they are not. Again, signing statements carry no legal weight whatsoever (the SCOTUS noted this, back in the days of FDR and has never treated a signing statement as anything other than an opinion). At best, they amount to fair warning, nothing more. Thus my conclusion in the linked-to piece:
Still, the Signing Statement controversies are largely manufactured. Aside from the statements having no legal authority, there is another matter: laws stay on the books until repealed or overridden by new laws. Not so for Signing Statements. They pass into history as quickly as the President that made them. Future Presidents and administrations are not constrained in any way by the Signing Statements of previous Presidents. The statements are footnotes, nothing more.
Since I was aware of the truth of the matter when it came to signing statements, it was high comedy--to me--when President Obama began to utilize them in the same way President Bush had after explicitly declaring he would not do so. But this was just a sideshow--Obama's hypocrisy on the matter--because I knew the statements carried no legal weight. I knew that a President could take an action outlined in a particular signing statement even if he had never issued such a statement to begin with. Signing statements are not necessary, at all. That's the whole point. If a President deems a particular portion of a law he has signed to be unconstitutional or unenforceable, he can refuse to follow it or instruct affected agencies not to follow it in the moment, when the time actually comes for its application.

That reality has become crystal clear in recent weeks, as Obama has decided to ignore enforcing requirements in the Obamacare legislation. Jennifer Rubin summarizes and quotes the President:
Among President Obama’s more outlandish comments at his Friday press conference was his utterance in response to a question as to whether, given his unilateral postponement of Obamacare’s employer mandate, other presidents could be allowed to pick and choose what parts of laws to enforce.

He declared:
"With respect to health care, I didn’t simply choose to delay this on my own. This was in consultation with businesses all across the country, many of whom are supportive of the Affordable Care Act, but — and many of whom, by the way, are already providing health insurance to their employees but were concerned about the operational details of changing their HR operations if they’ve got a lot of employees, which could be costly for them, and them suggesting that there may be easier ways to do this."

First off, this is duplicitous. The president may have consulted with others, but he unilaterally decided to change the law and threatened to veto any bill that would legally concretize his decision.
Rubin also notes Obama's signing statement hypocrisy in context with this arbitrary use of imagined executive power. For "imagined" is exactly what it is. George Will goes into greater detail in that regard in his WaPo op-ed, noting the following:
Obama’s explanation began with an irrelevancy. He consulted with businesses before disregarding his constitutional duty to “take care that the laws be faithfully executed.” That duty does not lapse when a president decides Washington’s “political environment” is not “normal.” 
When was it “normal”? The 1850s? The 1950s? Washington has been the nation’s capital for 213 years; Obama has been here less than nine. Even if he understood “normal” political environments here, the Constitution is not suspended when a president decides the “environment” is abnormal. 
Neither does the Constitution confer on presidents the power to rewrite laws if they decide the change is a “tweak” not involving the law’s “essence.” Anyway, the employer mandate is essential to the ACA.
Rubin and Will are both exactly on point in all of this: Obama's haphazard rewriting of the Affordable Care Act is a power beyond his purview. The legislation was passed in Congress and signed into law by the President; nothing in it allows the President to change elements--any elements--on a whim. Had he included a signing statement to this effect--that he might decide to change portions, based on future "consultations" with businesses--his ability to take such a step would not have been impacted in any way, whatsoever. People might have wondered what the hell he was talking about, but such a signing statement would have meant absolutely nothing, it would have been just a warning about potential actions in the future.

The difference, however, with such a warning as compared to those signing statements offered by Bush (and Obama) and objected to by know-nothings like Charlie Savage is that the previous ones were at least grounded in constitutionality issues. Not so with the theoretical signing statement warning against this latest usurpation of power from the Obama Administration.

So while Obama continues to exercise power he does not actually possess--and the majority of the mainstream media goes along with it with nary a thought in their pretty little heads--he has at least made it clear that the complaints about Bush grabbing power via signing statements were wholly manufactured.

It's kinda like finding a penny on the way to the electric chair. Yippee.

Cheers, all.

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