Today when the President signed H.R. 2055, the “Consolidated Appropriations Act, 2012″ into law, he issued another signing statement in his battle with congress over the closure of Gitmo. Ever since Obama issued an executive order to close Gitmo, Congress has been running end games around funding the closure and transfer of detainees. This year was no different.
In his signing statement, Obama noted, “I have previously announced that it is the policy of my Administration, and in the interests of promoting transparency in Government, to indicate when a bill presented for Presidential signature includes provisions that are subject to well-founded constitutional objections. The Department of Justice has advised that a small number of provisions of H.R. 2055 raise constitutional concerns.”
A signing statement is something of a public pronouncement a president might make about a bill they are signing into law. They have been used to clarify their positions or elaborate dissent. In this case, Obama is once again noting that he will seek the repeal of measures in the act that prohibit transfers of Guantanamo Bay detainees.
The President’s objections are in part:
In this bill, the Congress has once again included provisions that would bar the use of appropriated funds for transfers of Guantanamo detainees into the United States (section 8119 of Division A), as well as transfers to the custody or effective control of foreign countries unless specified conditions are met (section 8120 of Division A). These provisions are similar to others found in the National Defense Authorization Act for Fiscal Year 2012. My Administration has repeatedly communicated my objections to these provisions, including my view that they could, under certain circumstances, violate constitutional separation of powers principles. In approving this bill, I reiterate the objections my Administration has raised regarding these provisions, my intent to interpret and apply them in a manner that avoids constitutional conflicts, and the promise that my Administration will continue to work towards their repeal.
The President is objecting to the congress’ end-run around the President’s executive order to close Gitmo. Congress has once again used the appropriations bill as a way of hiding their refusal to fund the transfer of prisoners to the US or other foreign countries.
Conservatives are having a field day criticizing the President for Eric Holder’s statement earlier this week that the President would issue a signing statement when he signed NDAA into law (NDAA is still listed as pending on the White House site).
Conservatives are excoriating Obama for allegedly reversing his earlier critiques of Bush’s egregious use of signing statements. For example, they think Obama issuing a signing statement about NDAA makes him a hypocrite for condemning Bush for his use of signing statements.
However, Obama wasn’t criticizing merely the use of the signing statement but the overuse of them.
President Bush issued more signing statements than ALL previous presidents combined since the nation’s founding.
Conservatives are ignoring this reality, as well as pretending that suddenly they are against a unitary executive as adored by the authoritarian conservatives of the modern day Republican Party.
President Bush took the theory of the unitary executive to the extreme, pushing the boundaries until it overrides the checks and balances of the other branches of government. John W Dean, a lawyer who served as White House Counsel to United States President Richard Nixon, calls this “presidential autocracy” the natural result of authoritarian conservatism.
President Obama may be forced to adopt Clinton’s use (President Clinton discovered that he could use the expanded powers the Republicans used to deregulate to regulate the EPA, for example, much to the chagrin of the Republican Party) of the right-wing expanded powers of the executive office if he wants to make headway with Gitmo, as congress is simply not going to allow even the funding of the transfers of the detainees.
President Obama is not the autocratic president the right pretends he is and the some of the left wish he was. The debate over the extent we’d like to see Obama embrace the unitary executive theory rolls on.