Barack Obama, Signing Statements and the Professional Freakout Brigade

Did you hear? Obama issued a signing statement! On the budget compromise bill! Everybody freak out!!!

That was the reaction by the professional freakout brigade on both the Right and the reactionary ideological Left on the President's signing statement on HR 1473, more commonly known as the 2011 budget compromise. So what did he write in this statement that has all these pundits' panties in a bunch? You see, the Republicans included in the budget deal (text of full legislation) the de-funding of certain specific positions within the president's staff - namely, the following positions (the so-called "czars"):
(1) Director, White House Office of Health Reform.
(2) Assistant to the President for Energy and Climate Change. H. R. 1473—162
(3) Senior Advisor to the Secretary of the Treasury assigned to the Presidential Task Force on the Auto Industry and Senior Counselor for Manufacturing Policy.
(4) White House Director of Urban Affairs.
In reply to this specific part, the President's signing statement reads as follows:

Section 2262 of the Act would prohibit the use of funds for several positions that involve providing advice directly to the President. The President has well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority. The President also has the prerogative to obtain advice that will assist him in carrying out his constitutional responsibilities, and do so not only from executive branch officials and employees outside the White House, but also from advisers within it.

Legislative efforts that significantly impede the President's ability to exercise his supervisory and coordinating authorities or to obtain the views of the appropriate senior advisers violate the separation of powers by undermining the President's ability to exercise his constitutional responsibilities and take care that the laws be faithfully executed. Therefore, the executive branch will construe section 2262 not to abrogate these Presidential prerogatives.
So it began. From David Dayen of Firedoglake and Glenn Greenwald to Hot Air and The Daily Caller (now, why am I not surprised that these folks, claiming to be from different visions of America, suddenly agree on clawing at Obama again?), the professional hacks have their keyboards itching to bash Obama. See? Obama violated his campaign promise not to use signing statements to do an end run around Congress! He is just like Bush, who also used signing statements to ignore the law! Obama is a liar! Obama sucks!!!!

Except that hardly anyone is paying attention to a few key issues and facts here. First and foremost among them is the merit of the signing statement itself. George W. Bush used his signing statements to ignore and violate Congressional authority in areas where Congress has explicit and significant powers. Take torture in US military custody, for example. The Constitution gives to Congress - not the president - the explicit authority to raise armed forces and to direct their behavior. Article 8:
Congress shall have power ...

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
Congress not only has the power to regulate military behavior and detainees, it is given the exclusive power to do so in the Constitution. Somebody please find me in the Constitution the powers of Congress to micromanage the White House staff. While Congress can decide how much funding the President's staff gets (the White House) as a whole, it is pretty damn unlikely that a Congressional de-funding of specific job titles within the President's staff could pass constitutional muster. In the continuing budget resolution, Congress appropriates $58,552,000 for the White House and the Executive Office of the President.

There are those who will say that the above makes no difference, because the President is not the arbiter of our laws; the Supreme Court is. That argument would mean that a President has no way to assert his Constitutional prerogatives without a federal court issuing an injunction against an act of Congress. But the same critics, if the follow that logical train, would argue that the President has a duty to defend federal laws in court, no matter what they say. In other words, this logic says that the president must defend even provisions of law that clearly encroaches on his powers.

The debate on executive power during the Bush administration skewed the issue so much that the political spectrum got divided into two loud factions: one that believed the President has dictatorial powers when it comes to national security, and another that believed that the President has no powers at all. Neither of these groups is, of course, correct. The truth is that the President has limited, but nonetheless awesome powers. Merely mentioning that fact is not advocating for a unitary executive, just as mentioning that he has limited powers is not the same as assuming he is a figurehead.

As to this specific situation, there is also another important missing bit from the professional poutrage manufacturers' coverage of this thing: the President only says that he will interpret the law to not interfere with his powers as the executive, but currently, all of those de-funded positions are non-existent, and the White House has not gone out and hired new people in those positions. Even as Politico declares "Obama to ignore czar ban," they admit:
The anti-czar language in the spending bill marked a victory for Republicans and conservative pundits, who accused the administration of giving unelected bureaucrats too much power within the White House. But the language didn't appear to have any immediate impact on Obama's staff.

Energy and climate adviser Carol Browner resigned earlier this year; health czar Nancy-Ann DeParle was promoted to deputy White House chief of staff; Obama's urban affairs adviser, Adolfo Carrión, left the White House to become a regional director for the Department of Housing and Urban Development; and the White House said auto and manufacturing adviser Ron Bloom wouldn't be affected by the language.

"Over the last several months, the White House has undergone a reorganization that involved the consolidation of several offices and positions," a White House official told POLITICO last week. "Included in that larger reorganization, earlier this year the Domestic Policy Council assumed responsibility for health care, as well as energy and climate change policy coordination and development in the White House. The agreements reflect those changes."
Ah. So basically, the whole entire section was GOP grandstanding for their base. "Hey, look, we cut funding for czars that weren't drawing any money at the time we cut their funding!" There is a whole political bruhaha accusing the President of being a unitary executive for claiming powers he quite obviously has and for ignoring the will of Congress for things that, umm, did not happen. The President has clearly not used his signing statement - as of this point - to ignore even this Congressional micromanagement.

Let's also consider this. It's quite possible for the President to both comply with the letter of the law in the budget resolution, and to "construe section 2262 not to abrogate these Presidential prerogatives." Construing something to be consistent with presidential prerogatives does not necessarily always mean ignoring it. The letter of the law specifies the specific staff positions it won't fund. That is in and of itself an unconstitutional Congressional overreach into presidential prerogatives, but for the sake of argument, let's say the president follows the letter of the law and appoints a "Chairman" (as opposed to "Director") of the "White House Council on Health Reform Implementation." It is quite literally within the letter of the law, since it's not the "Director" of the "White House Office of Health Reform." Even if Congress had the power to micromanage the White House staff and prohibit funding for specific White House offices or employees, the power would be meaningless since the President could just create another position or office with the same job description.

So let's recap. First, on the merits of the Constitutional debate - as to whether Congress has the power to micromanage the President's staff  and advisors - the President, in this case, is right. Second, the positions defunded were and remain vacant, so the President actually has not violated Congressional acts. Third, the section is written stupidly enough to make plain the futility of Congress' attempt to micromanage the president's staff, even if it had the technical authority to do so.

So, everyone, don't freak out. In fact, everyone, chill.