The Law: Prerogative Power and Executive Branch Czars: President Obama's Signing Statement

Abstract

In his April 15, 2011, signing statement President Barack Obama implied that, as president, he may suspend laws, or portions of laws, and that he is not controlled by statutory language that interferes with his ability to receive advice from White House aides or other executive branch officials. This article analyzes the claim that presidents have the prerogative to wall themselves and their aides off from statutory direction and controls, and concludes that there is no constitutional or legal basis for such an understanding of the executive power.

Signing Statements, Gridlock, and Presidential Strategy

“…Signing statements often reflect concerns about seemingly unconstitutional statutory provisions (Berry ; Ostrander and Sievert 2012; Sollenberger and Rozell ) and presidential attempts “to assert that [the provisions] are unconstitutional encroachments on the president's role as chief executive” (Berry , 267). However, presidents can and do use signing statements, as Kelley and Marshall (, 255) put it, “to bend policies toward [their] preferred interpretation.” In these cases signing statements do not solely reflect the president's concerns about the institutional capacity of his office, but also his concerns for policy outcomes.…”

“…Certainly assertions of executive power within signing statements did not start with George W. Bush, nor did these assertions end when he left the presidency. As Sollenberger and Rozell () discuss, President Obama claimed such authority in a signing statement intended to hamstring Republican efforts to rein in Obama's use of White House “czars.” Further, though Figure 1 suggests that the current administration has dialed back the use of signing statements, Rice () argues that presidents can still accomplish these substantive goals through the use of other tools, like Statements of Administration Policy.…”

“…A surge in research on presidential signing statements followed in the wake of the controversy (Berry ; Conley ; Kelley and Marshall , , ; Korzi ; Ostrander and Sievert ; Sollenberger and Rozell ). The belief that Bush's usage of signing statements was “unprecedented” (Savage ) was significantly overstated, but nevertheless, focus among many presidential scholars, especially scholars of unilateral presidential power, began to shift to the causes and consequences of signing statements.…”

The Law: President Obama's Signing Statements and the Expansion of Executive Power

“…President Obama would “construe section 2262 not to abrogate these Presidential prerogatives” (Obama 2011a). Of course, Obama has no “prerogative” to create and fund White House positions (Sollenberger and Rozell ). The number and salary level of these positions are determined by statute (Sollenberger and Rozell , 114‐120; 92 Stat.…”

“…In his analysis of that statement, presidential scholar Robert J. Spitzer argued that it merely “expresses displeasure, not disobedience to the law” (, 11). Two of us took the opposite view and declared that the president's statement “effectively nullified” the anti‐czars provision (Sollenberger and Rozell , 819). If scholars can disagree about the intended meaning of presidential signing statements, it is doubtful that a layperson can clearly discern the president's intentions.…”