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You would think that President Obama’s recent Executive Order calling for a raise in the minimum wage for government contractors was the second coming of Hitler.
Sen. Rand Paul (R-KY) tweeted, “Mr. President we are a nation of laws & we are supposed to follow our #Constitution. You do not get to ‘act alone.’”
Sen. Ted Cruz (R-TX) said, “Over and over again this president has disregarded the law, has disregarded the Constitution and has asserted presidential power that simply doesn’t exist and that ought to worry regardless of whether you agree with his policies or not.”
Those are just a couple examples of selective memory through the prism of ignorance and zero-context.
Executive Orders might seem like a convenient way of accusing this president, a constitutional scholar, of crowning himself King of the Constitution, who’s “worse-than-Bush,” but the use and substance of Executive Orders only tell a small part of the story of what it means to truly be considered for membership in The Unitary Executive Club.
I want to talk to you today about signing statements: A written pronouncement issued by the president upon the signing of a bill into law. Many presidents have issued them, most of them just a philosophical disagreement with the law as written, and rarely used to disobey, or redefine laws.
You can thank a 1986 memo written by Samuel Alito for contributing to the dramatic increase in the unconstitutional abuse of presidential signing statements.
But this is where substance is key, because when George W. Bush was president, he issued around 152 signing statements, 118 of which challenged and/or objected to bills he was signing into law, including treatment(torture)and oversight of detainees in the War On Terror and an audited accounting of waste and fraud in Iraq’s reconstruction, as well as the illegal, warrantless wiretapping of Americans.
From a 2007 Congressional Research Service report:
President Reagan issued 250 signing statements, 86 of which (34%) contained provisions objecting to one or more of the statutory provisions signed into law. President George H. W. Bush continued this practice, issuing 228 signing statements, 107 of which (47%) raised objections. President Clinton’s conception of presidential power proved to be largely consonant with that of the preceding two administrations. In turn, President Clinton made aggressive use of the signing statement, issuing 381 statements, 70 of which (18%) raised constitutional or legal objections. President George W. Bush has continued this practice, issuing 152 signing statements, 118 of which (78%) contain some type of challenge or objection.
During his presidency, George W. Bush asserted unitary executive powers and privilege as standard operating procedure to challenge or overrule over 1,200 sections of bills.
Contrast with the Obama administration, which has issued just 24 signing statements, the majority of which either object to congressional inaction to close Guantanamo Bay(accounting for several of his signing statements), or to say that he agrees with the law, the Recovery Act and the James Zodroga 9/11 Compensation Act of 2010, for instance.
In other words, when considering the number executive orders, also consider the number and substance of the signing statements.
Therein lies the distinct differences in style and substance in answer to questions of perceived constitutional overreach. President Obama may have ordered his administration to stop defending the clearly unconstitutional Defense Of Marriage Act to the fanatical dismay of Right wing nut jobs everywhere, or to back off states that have passed laws legalizing marijuana, but the Bush administration used the power of the office to literally rewrite the rule of law in matters of torture, war, and domestic surveillance.
It’s worth mentioning if only for little context and perspective.