It seems pretty inarguable, actually:
Last week the White House and congressional Democrats and Republicans were involved in intense negotiations over not only the size of the budget for the remainder of the FY2011 budget, and spending cuts within that budget, but also several GOP “riders,” or policy provisions attached to the bill.
One rider – Section 2262 — de-funds certain White House adviser positions – or “czars.” The president in his signing statement declares that he will not abide by it.
“The President has well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority,” he wrote. “The President also has the prerogative to obtain advice that will assist him in carrying out his constitutional responsibilities, and do so not only from executive branch officials and employees outside the White House, but also from advisers within it. 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.”
Therefore, the president wrote, “the executive branch will construe section 2262 not to abrogate these Presidential prerogatives.”
In other words: we know what you wanted that provision to do, but we don’t think it’s constitutional, so we will interpret it differently than the way you meant it.
During his presidential campaign, then-Senator Obama was quite critical of the Bush administration’s uses of signing statements telling the Boston Globe in 2007 that the “problem” with the Bush 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.”
Then-Sen. Obama said he would “not use signing statements to nullify or undermine congressional instructions as enacted into law.”
Now before this devolves into the typical slap fight in the comments, with the “Obama can do no wrong” crowd matching wits with the “Obama is worse than Bush” crowd all while trashing Jake Tapper, let’s review the points as I see them.
1.) Pretty clearly, Obama said he would not use signing statements to “avoid enforcing certain provisions of the legislation that the President does not like,” and now he is issuing signing statements telling us he won’t enforce a certain provision of legislation that he does not like.
2.) To which someone will respond, “But yes, this is different, because this rider that he is ignoring is clearly unconstitutional.” If I were a betting man, which I am, I would take a wild guess and state that one of the justifications used by the Bush crew is that the provisions he was ignoring are unconstitutional and get in the way of his constitutional prerogative. Lo and behold (.pdf):
Contributing to the controversy has been the high profile of several of the provisions that have been objected to by President Bush. For instance, in the signing statement accompanying the USA Patriot Improvement and Reauthorization Act of 2005, President Bush declared that provisions requiring the executive branch to submit reports and audits to Congress would be construed “in a manner consistent with the President’s constitutional authority to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive’s constitutional duties.” Likewise, in the signing statement accompanying the law that contained the McCain Amendment (as part of the Detainee Treatment Act) prohibiting the use of torture, or cruel, inhuman, or degrading treatment of prisoners, the President declared that the executive branch would construe that provision “in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief … [in order to protect] the American people from further terrorist attacks.”
3.) However, we can argue that there is a qualitative difference in the signing statements. That is one for the lawyers, but I would argue that there is a fundamental difference between the signing statement of Obama’s we are discussing and the nature of the one quoted above. However, both look to protect and/or expand Presidential authority, and both assert a constitutional prerogative.
4.) But the rider was bullshit! And yes, I would tend to agree. Attempting to limit the number of “czars” (many of which are not even czars) is just one of these silly things that the Glenn Beck/fringe of the right seized upon somewhere around noon on January 20th 2009, at which point Presidential advisors transformed from a necessary addition to the executive branch to czars designed to subvert the very nature of Democracy in the name of Soros, Acorn, MoveOn, and Markos Moulitsas (I was going to say Satan, but that would be redundant, wouldn’t it?).
5.) Having said that, though, I have a fundamental problem with the whole concept of czars, and would like them eliminated for every administration (we can start with the Drug Czar). Barring that, Congress should at the very least be required to approve them and they should be required to be subpoenaed.
There is my two cents. Go ahead and wage your epic battles amongst each other.