President Donald J. Trump was so taken aback by the overwhelming support in Congress for a sanctions bill aimed at Russia for its interference in the 2016 elections that he issued not one, but two formal statements when he reluctantly signed the measure into law on Aug. 2.
In the first statement he charged that, “in its haste to pass this legislation, Congress included a number of clearly unconstitutional provisions,” including two sections that “purport to displace the President’s exclusive constitutional authority to recognize foreign governments.” He concluded by warning Congress “to refrain from using this flawed bill to hinder our important work with European allies to resolve the conflict in Ukraine….”
{mosads}In his second statement (now listed first on the White House website), Trump adopted a more conciliatory and forward-looking tone, pointing out that since the bill was first introduced, it had been improved considerably after discussions with the Treasury Department. Gone was the earlier allusion to “clearly unconstitutional provisions,” though the bill still remains “seriously flawed,” because “it encroaches on the executive branch’s authority to negotiate.” Nevertheless, the president asserted that he was signing the bill “for the sake of national unity,” and because it “represents the will of the American people to see Russia take steps to improve relations with the United States.”
The big surge in signing statements under President George W. Bush –161 statements citing over 1,100 objectionable provisions –gave the administration an aura of power aggrandizement. An American Bar Association task force even suggested they were a form of line-item veto –something the Supreme Court had declared unconstitutional.
Trump’s double-take is not the first time a president has issued two signing statements for the same law. President George W. Bush, did it twice — once on a consolidated appropriations bill in 2003, and once on a defense authorization act in 2004.
President Barack Obama, issued two signing statements to accompany the 2009 supplemental appropriations act. The first simply congratulated members for putting politics aside and supporting “the safety of our troops and the American people.” The second statement, singled out five provisions he said would interfere with his constitutional authority to conduct foreign relations.
As a senator, Obama responded to a Boston Globe survey of presidential candidates in late 2007, saying it would be a “clear abuse of power” to use signing statements “as a license to evade laws that the president does not like.” He added that he would not use them “to nullify or undermine congressional instructions as enacted into law.” Nevertheless, during his two terms as president, Obama issued 37 such statements that pointed out 114 objectionable.
When President Obama signed into law the Defense Authorization Act in 2011, one of the provisions he objected to in his signing statement prohibited the secretary of Defense from transferring any prisoner from Guantanamo Bay without giving Congress at least 30-days prior notification. In 2014, the president did not notify Congress until two-days after the June 1 transfer of five-Taliban detainees from Guantanamo to Qatar in exchange for Army Sergeant Bowe Bergdahl. A Washington Post story by Karen Tumulty the next day, carried the headline, “Obama circumvents laws with ‘signing statements,’ a tool he promised to use lightly.”
Why would a president issue more than one signing statement for the same law? Since no reasons are publicly given, one can only speculate. Proposals for such statements ordinarily emanate from the Justice Department’s Office of Legal Council, which looks at any constitutional infirmities; and the Office of Management and the Budget which rides herd on conflicts with an administration’s policy objectives. In President George W. Bush’s administration, Vice President Dick Cheney’s counsel, David Addington, was responsible for a large number of the signing statements.
When the proposed drafts clash in tone or substance, a president may still side with both, necessitating two separate statements. Or, a hastily accepted first statement may be “trumped” by a more conciliatory second one.
President Trump’s two signing statements on the Russia sanctions bill brings his total to four through Aug. 2, touching on 104 specified provisions. Constitutional experts still differ over the selective implementation implicit in such statements. But at least since President Obama, who used the statements more sparingly, if not more judiciously, expert opinion falls more into an ambivalent middle ground: signing statements may not be illegal, but it would be preferable for presidents to veto bills they determine contain unconstitutional provisions. Congress, on the other hand, is grateful for the early warning signals such statements emit: it knows what to look for when the statutory provisions hit the implementation road (or are ignored); and it is prepared to react accordingly.
Don Wolfensberger is a fellow at the Woodrow Wilson Center and Bipartisan Policy Center and former staff director of the House Rules Committee. The views expressed are solely his own.
The views expressed by this author are their own and are not the views of The Hill.