Thoughts on a Possible Signing Statement

Benjamin Wittes
Tuesday, January 4, 2011, 5:13 PM
I have a few thoughts on Dafna Linzer's story from yesterday, which reported that the President means to push back against congressional efforts to impede trial and transfer of Guantanamo detainees by issuing a signing statement. Some considerable pushback against this sort of congressional meddling is long overdue.

Published by The Lawfare Institute
in Cooperation With

I have a few thoughts on Dafna Linzer's story from yesterday, which reported that the President means to push back against congressional efforts to impede trial and transfer of Guantanamo detainees by issuing a signing statement. Some considerable pushback against this sort of congressional meddling is long overdue. In one of the singularly incompetent flailings of a generally competent presidency, Obama has managed to take an issue on which he and his opponent did not even disagree and preside over the emergence of a bipartisan consensus against his position. This development is only very secondarily because his position has problems on the merits, though it surely does. One of the more important reasons he has lost ground has been his consistent failure to articulate a policy, explain that policy coherently and repeatedly, and implement the policy decisively. As political opposition to his Guantanamo plans mobilized, rather, he became paralyzed. And that paralysis is nowhere better typified than in his passivity in the face of increasingly aggressive congressional efforts to micromanage the disposition of individual Guantanamo cases. If the President doesn't draw a line somewhere or otherwise rearrange the policy landscape he will end up with zero control over a set of policy questions over which the President simply must retain control--because he will retain accountability, control or not. Yet the manner of Obama's pushback matters, and I'm not at all sure that a signing statement will do him much good here. A signing statement might be useful if, like the Bush administration lawyers, Obama's people believed that the Commander in Chief power trumps virtually everything else. Then the president could simply issue a signing statement interpreting the law in a fashion consistent with the Commander and Chief's power to do whatever he wants with detainees and be done with it. The trouble is that Obama administration lawyers don't see the executive's power that broadly. In fact, they clearly believe that at least some of what Congress is trying to do is constitutional--even if it is horrible policy. And they are trying to live within the law as they understand it. This is commendable for the same reasons it is commendable when conservatives stand up and oppose what Congress is now doing on executive power grounds. It is consistent. But it is also at least somewhat maladaptive. Executive-legislative relations are forged less through strict doctrinal development than through combat--who asserts what and gets away with it and which side blinks first. The Obama administration has been blinking a lot; indeed, it often blinks before the staring contest begins--taking as its starting place the non-assertion of executive prerogatives. Its first instinct is not to defend the presidency's prerogatives even at the risk of over-defending them but, rather, to submit to congressional restrictions even at substantial risk of under-defending the presidency's prerogatives. I agree with Jack and Bobby that this is likely to change as congressional aggressiveness increases; I also think as a normative matter that it should change. The executive's reflex should not, in my opinion, be one of submission to congressional encroachments but resistance to them. That's the lesson of Madison in Federalist 51 ("the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others"). But the lesson only works if the branches use the "constitutional means" at their disposal and let "ambition . . . counteract ambition." It doesn't work if one side submits. As long as the administration takes a decidedly congressionalist view of its powers, it faces a wrenching question: What should an administration do if it has (a) determined that congressional policy constraints on a national security matter are intolerable and (b) determined also that they are constitutional? To be clear, I have never studied closely the question of how the various authorities at issue here interact--and thus don't know where I think lie the precise limits lie of Congress's power to prevent the closure of Guantanamo, the transfer of prisoners, or their trial in federal court. All such restrictions are dreadful policy, and all grossly impede the executive's functioning; but whether they do so within or outside of the lawful limits of Congress's power I am honestly not sure. In my view, the executive should feel free to put a solid thumb on the scales in its constitutional analysis in favor of its own interests and policy desires. But if, having done that, the administration has truly concluded that Congress has the power to tie its hands, it presumably cannot then in good faith issue a signing statement saying the opposite. And it presumably cannot lawfully defy the restrictions either. Moreover, if the administration does not mean to defy Congress, a signing statement would be more of a whining statement than a strong pushback--and it's not worth doing. It will only compound the perception of weakness. At least in the latest version of Dafna's story, both the option of a signing statement and a whining statement appear to be in play:
Some Administration officials are recommending that President Obama sign the spending bill and then issue a “signing statement” challenging at least some of the Guantanamo provisions as intrusions on his constitutional authority. Others have recommended that he express opposition to the Guantanamo sections without addressing their constitutionality.
Indeed, if the administration cannot make a constitutional objection to the enactment sufficient to justify defiance or some significantly limiting interpretation, then it really has two choices: It can either live with the restrictions or it can veto the underlying legislation. But a veto is not a serious option either, Dafna reports, because of other provisions of the defense spending bill to which the restrictions are attached: "officials said the White House will not block legislation on military pay and benefits, especially after the military's support for repealing 'Don't Ask, Don't Tell,' legislation in December." So in other words, having adopted constitutional positions (rightly or wrongly or debatably) that precludes standing up to Congress, the administration is also unwilling to use its ultimate weapon in the fight. Madison would not have trouble analyzing why Obama is getting his butt kicked here. And to be frank, I can't muster much sympathy for the predicament in which the President finds himself. If closing Guantanamo and civilian trials for terrorist leaders are truly policy goals of transcendent importance, as he has said since the campaign, then Obama should be prepared to stand up for them--and lose. If Obama were to veto this bill with a message that said that he supports all of it save a few paragraphs which no self-respecting president would sign and that Congress can either override his veto or send the bill back without the offending provisions, he would do himself a world of good--even if Congress overrode his veto. At least he would have stood up for a policy his administration has repeatedly described as a "national security imperative" and been seen to have done so. On the other hand, if these policy goals are not so important as to go down swinging for, then Obama should stop talking about them as though they were. He should come to a reasonable understanding with the right. He might agree, for example, to use military commissions, not civilian courts, for Guantanamo detainees, but insist on retaining prosecutorial flexibility for new captures and the option of transferring current detainees abroad without ridiculous certification requirements. Sure, it would be a climb-down, but at least it would be an honest, deliberate climb-down--rather than the whimpering one in which the president is now engaged, in which he continues to sniff about the importance of a policy that everyone knows he won't fight for and won't accomplish. As it is, Obama accomplishes nothing--signing statement or no signing statement. He is alienating the left without giving himself any room to compromise with the right. He is not accomplishing his policy objectives, which he continues to describe in terms that make his failure seem like a far bigger problem than it really is. A signing statement will solve none of these problems. Only hard-headed decisions about policy can do that.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

Subscribe to Lawfare