Obama’s Signing Statement On Presidential Czars And The Constitution
President Obama's signing statement on the allocation of funds to Presidential "czars" sets a potentially dangerous Constitutional precedent.
If Congress has refused to fund the “czars,” where exactly does President Obama get the authority and funding to pay them?
Remember Iran-Contra? The problem for the Reagan Administration there was that Congress banned the president from allocating money to the Contras. The Administration, quite illegally in my view, tried to get around that ban by using funds from arm sales to Iran to subvert the Congressional ban.
At least the Reagan Administration had the decency to do this secretly, knowing that it was acting unconstitutionally. Moreover, the Reagan folks at least were able to claim that they technically weren’t violating the Congressional ban, because they weren’t using Congressionally allocated funds, but the proceeds from arms sales.
The Obama Administration, by contrast, seems to be brazenly violating the Constitution. As I tell my constitutional law students, Congress’s ultimate power is the power of the purse. If Congress objects, for example, to military action engaged in by the president, it can simply refuse to allocate funds.
But the Obama Administration’s position seems to be that so long as it issues a signing statement refusing to abide by restrictions on funding that it deems to interfere with executive prerogatives, it can simply create the funding out of thin air. If there is no statutory funding for the czars, where exactly is the money coming from?
This is a very dangerous position for the Executive branch to take, and I hope even Obama partisans will recoil at this. Imagine if a future Republican president gets the U.S. involved in a deeply unpopular war. A Democratic Congress passes a military spending bill that specifically denies the president authority to spend any additional money on that war after a 60 day period to get the troops out. The president signs the bill, but with a signing statement that says that the bill’s ban on war funding violates the separation of powers and therefore “the executive branch will construe the relevant section not to abrogate these Presidential prerogatives.” Democrats, and anyone concerned with the Constitution for that matter, would be up in arms, and rightly so.
If Obama had such serious constitutional objections to Section 2262, he had only one constitutionally proper move to make, and that was to veto the bill.
Of course, vetoing the bill would have derailed the entire FY2010 budget deal so the better course of action would have been for Obama to tell Congress that he wouldn’t agree to a budget deal that included Section 2262. Instead, he’s issued a signing statement that says that he believes the President has the authority to spend money on something the Congress has, by law, specifically barred him from spending money on.
As Bernstein points out, this is no different, in principle, from the argument the Reagan Administration when a Democratic Congress barred him from allocating money to the Nicaraguan Contras:
The principle that Obama seems to be asserting, that the president can allocate money from budgetary funds even when the law says he can’t, goes beyond the constitutional sins of the Reagan Administration. Under Reagan, when Congress refused to allow funding for the Contras from normal budgetary funds, Reagan didn’t say, “this violates the separation of powers, so I’m going to spend the money anyway.” Rather, he authorized a secret operation to use funds from arm sales to Iran to fund the Contras. That was itself, in my view, illegal and otherwise problematic, but it still paid fealty to the idea that the president cannot spend funds budgeted by Congress in a way that Congress has explicitly prohibited. Unless we get a contrary clarification from the Obama Administration, its signing statement threatens to become a precedent that erodes or even eviscerates that principle. The long-term endpoint would be that the president, once he ariculates separation of powers concerns, could simply take money that’s been allocated for one thing and spend it not just on something else, but on something else specifically prohibited by law. And I don’t want ANY president, Republican or Democrat, to have such authority.
This whole issue of Presidential czars is, in the grand scheme of things, a minor one. Presidents have had informal advisers since FDR’s Administration, and Presidents before him frequently consulted with people they trusted that were not formally part of the government. The Obama Administration, though, takes a position that could be easily abused in the future. As I noted earlier, the history of Presidential assertions of authority is that they are seldom abandoned. Instead, the trend has been to accumulate more and more extra-Constitutional power in the Executive Branch. The Obama Administration helps advance that trend by establishing a principle that is effectively the Constitutional equivalent of a loaded gun, and someday another President might use it for something far more nefarious.