Tuesday, March 17, 2009

President Obama's first signing statement: you can't make me

From the NYT:

WASHINGTON — A leading Republican senator maintains that President Obama is violating a campaign promise with his claim that he can bypass whistle-blower protections for executive branch officials who give certain information to Congress.

The lawmaker, Senator Charles E. Grassley, Republican of Iowa, sent a letter to Mr. Obama on Friday that condemned a signing statement the president attached to the $410 billion catchall spending bill he signed into law last week.

A signing statement, occasionally issued by presidents upon their signing a bill, is a document that instructs executive branch officials on how to carry out the new law. In this statement, Mr. Obama flagged a provision that protects officials who give information to Congress about their jobs or agencies. He said the statute could not limit his power to control the flow of certain information to lawmakers.

“I do not interpret this provision,” he wrote, “to detract from my authority to direct the heads of executive departments to supervise, control and correct employees’ communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.

In his letter, Mr. Grassley called Mr. Obama’s statement “overly broad” and said it would “undoubtedly chill whistle-blowers who might otherwise come forward to report waste, fraud or abuse to Congress.” He asked Mr. Obama to enforce and obey the statute fully.

This is a shocking statement that acknowledges that you would be willing to give an order preventing employee whistle-blowers from making disclosures to Congress,” he wrote. “I do not see how this statement can be reconciled with your campaign promise to protect whistle-blowers. In fact, it is even more egregious than simply breaking a promise, because it actually restricts current and previously existing whistle-blower protections.”

Three observations:

1) Senator Grassley is posturing: after eight years of Constitution-dodging signing statements from Dubya, this one is hardly shocking by any standard.

2) President Obama has lowered the bar significantly through the use of the word confidential. Unlawful and properly privileged could be considered a legitimate reservation dealing with genuine national security issues. For the President, however, to declare that the Congress does not have the legislative authority to keep him from punishing (correcting) an Executive employee for providing it information that merely confidential is another small expansion of the power of the imperial presidency. It's sort of meaningless, since Congress undeniably possesses the power to grant immunity to anybody testifying before it, but--on the other hand--the legislators don't have the ability to save anybody's job who is whistle-blowing.

3) Overall, this is not a particularly good sign in terms of the continuity with bad Bushco practices. Signing statements are essentially pretty dangerous mechanisms for thwarting the legitimate Constitutional separation of powers. It is unfortunate that the President decided to stake out this ground so early in his administration--especially when the majority of the members of his own party in Congress felt the need for this curb on Executive power.

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