Obama Rolls Back Unconstitutional George W. Bush Signing Statement Policy

The president strikes a blow for the Constitution—mostly.


By Robert Schlesinger, Thomas Jefferson Street blog

In case you missed it, Barack Obama took a rare presidential step today—rolling back a predecessor's executive overreach.

Obama declared that the signing statements George W. Bush employed during his reign to selectively nullify laws he didn't like—1,200 of them!—could be ignored. Good for him.

The New York Times' Charlie Savage (whose Takeover remains the seminal work on the Bush administration's imperial presidency) reports:

Calling into question the legitimacy of all the signing statements that former President George W. Bush used to challenge new laws, President Obama on Monday ordered executive officials to consult with Attorney General Eric H. Holder Jr. before relying on any of them to bypass a statute.


Mr. Bush frequently used signing statements to declare that provisions in the bills he was signing were unconstitutional constraints on executive power, claiming that the laws did not need to be enforced or obeyed as written. The laws he challenged included a torture ban and requirements that Congress be given detailed reports about how the Justice Department was using the counter-terrorism powers in the USA Patriot Act.

Dating back to the 19th century, presidents have occasionally signed a bill while declaring that one or more provisions were unconstitutional. Presidents began doing so more frequently starting with the Reagan administration.

But Mr. Bush broke all records, using signing statements to challenge about 1,200 bill sections over his eight years in office—about twice the number challenged by all previous presidents combined, according to data compiled by Christopher Kelley, a political science professor at Miami University in Ohio.

Just process that for a second. Over eight years, Bush signed bills into law and then unilaterally proclaimed that some of the laws he had just enacted didn't count. That's crazy. And dangerous.

The news from Obama is not all good:

But Mr. Obama also signaled that he intends to use signing statements himself if Congress sends him legislation that has provisions he decides are unconstitutional. He pledged to use a modest approach when doing so, but said there was a role for the practice if used appropriately.

"In exercising my responsibility to determine whether a provision of an enrolled bill is unconstitutional, I will act with caution and restraint, based only on interpretations of the Constitution that are well-founded," Mr. Obama wrote in a memorandum to the heads of all departments and agencies in the executive branch.

So Obama is reserving the right to unilaterally declare laws unconstitutional—a power I always thought rested with the courts. So it's not a complete rollback of the Bush madness, but it's certainly better than nothing.

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