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.

David Bernstein points out the serious Constitutional issues raised by President Obama’s signing statement regarding Congressional efforts to restrict funding for so-called Presidential czars:

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.

FILED UNDER: Barack Obama, Congress, Law and the Courts, Politicians, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Jeff says:

    The issue with the czars has never been about the president having advisors available to him. They have and are managing departments of the government without Congressional oversight in any way. They are acting as managers, not advisors.

  2. Tano says:

    “By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.

    In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. ”

    Marbury v Madison

  3. Tano says:

    At least the Reagan Administration had the decency to do this secretly, knowing that it was acting unconstitutionally.

    Don’t you think that anyone who writes a sentence like this should be granted no respect whatsoever when it comes to their opinion on legal or moral matters?

  4. mattt says:

    Bernstein’s constitutional criticism makes sense…..if Obama said he was going to circumvent Congress and continue to fund these positions. Which he does not, Jake Trapper’s breathless elaboration notwithstanding.

    Really, the statement reads like a typical boilerplate, an effort to preempt future claims that Congress has established some precedent here.

  5. ponce says:

    Here is the petty b.s. the wingnuts are defending:

    13 SEC. 2262. None of the funds made available by this
    14 division may be used to pay the salaries and expenses for
    15 the following positions:
    16 (1) Director, White House Office of Health Re
    17 form.
    18 (2) Assistant to the President for Energy and
    19 Climate Change.
    20 (3) Senior Advisor to the Secretary of the
    21 Treasury assigned to the Presidential Task Force on
    22 the Auto Industry and Senior Counselor for Manu
    23 facturing Policy.
    24 (4) White House Director of Urban Affairs.

  6. tps says:

    Tano: Marbury may allow the advisers but the congress need not fund them.

  7. Hey Norm says:

    If I were the president I simply would have re-named the positions. Or, having not read the legislation myself, done whatever it took to keep the positions while annoying the tea baggers to the greatest extent possible.

  8. george says:

    Just the usual team sports. If their side does it its wrong, if our side does it its okay. Politics as normal, the only surprise is that anybody is surprised.

  9. Jay says:

    I’ve always opposed the czars regardless of the President appointing them. If these people have jobs so fundamentally necessary to running the country, then they should state the case for themselves to the Senate and gain or lose appoitment based on the case for them there. It’s not as if Obama faces a hostile Senate, so I see little chances of his not getting the people he wants confirmed.

  10. Jay Tea says:

    I was always uncomfortable with signing statements, but didn’t think that they in and of themselves are a major issue. To me, they were “laying groundwork” for a potential future legal challenge. So, in and of themselves, they aren’t a big deal. More of a declaration of intent than an action in and of themselves.

    But it’s highly telling that Obama — once again — has embraced another Bush policy or practice that he denounced as a candidate.

    J.

  11. anjin-san says:

    Funny how “Czars” were not a threat to the Republic when Bush had a bunch of them:

    Republicans have supported these positions in the past. When asked on Fox News if he had opposed any of President Bush’s “czars,” Rep. Darrell Issa admitted “No we didn’t.” In fact, the Bush administration had many of the same officials and advisors now described as “czars,” including Afghanistan czar, AIDS czar, Drug czar, Faith-based czar, Intelligence czar, Mideast Peace Czar, Regulatory Czar, Science Czar, Sudan Czar, TARP/Bailout Czar, Terrorism Czar, and Weapons Czar.

  12. Wiley Stoner says:

    If that is true, Anjin name them or be forever known as what you really are.

  13. anjin-san says:

    Here you go Zels, is a three second Google search beyond your skills?

    http://en.wikipedia.org/wiki/List_of_U.S._executive_branch_czars

  14. anjin-san says:

    http://www.youtube.com/watch?v=wyiYV2gOwjU

    Video of Issa admitting that the GOP did not object to “Czars” when Bush had them. I guess you don’t see this at your teapuppet meetings…

  15. Davebo says:

    Here you go Zels, is a three second Google search beyond your skills?

    No, but as Zels will tell you, Google is biased. As is reality. Yet James still encourages his comments here it seems and has for several years now.

    Why that is only James could address.

  16. ponce says:

    “Video of Issa admitting that the GOP did not object to “Czars” when Bush had them. I guess you don’t see this at your teapuppet meetings…”

    This was clearly a Republican attack on science and black people.

    What a surprise.

  17. sam says:

    ” 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.”

    The President asserts that under the constitution, he has the power to do X, Congressional attempts to thwart the exercise of that power notwithstanding; the Congress says, well, says what? No, you don’t have that power, etc, etc, etc.

    In other words, we have hear a garden-variety tussle between the executive and the legislative branches. Big whoop.

    @Jay

    “But it’s highly telling that Obama — once again — has embraced another Bush policy or practice that he denounced as a candidate.”

    Yeah. John Cole’s take is, for my money, pretty much spot on: I Think We Can Safely Score This a Flip Flop.

    But look, guys, Barry’s in pretty good company re presidential flip-flopery. Consider what I think is the mostest bestest example of a president doing something in office that he was deadset against a president doing when he was out of office (as a general principle, not necessarily the specific case): The Louisiana Purchase. These kinds of conflicts are inherent in our system (a feature or a bug?). Like I said, Big whoop.

  18. Jay Tea says:

    To coin a phrase, signing statements are “just words.” I don’t think that they can trigger a Constitutional crisis until they are actually used. I see them as a way for a president to set himself up to challenge a specific part of a law, but to directly challenge them at that point. Sort of a “I reserve the right to take this up later” kind of move.

    J.

  19. PD Shaw says:

    The problem with the Czars is not that there are a bunch of informal advisors in the executive, getting oddly monarchal titles. It’s that they are increasingly making executive decisions while avoiding Congressional checks and balances, by denying that they are “officers,” subject to Senate confirmation and Congressional oversight.

    It’s seems to me the problem is getting worse, each President building on the sins of the previous.

  20. steve says:

    It has become almost impossible to get appointments approved. As a practical matter, we need to reduce the number of those who need to be confirmed and increase the number of appointees. If the GOP had voted to not fund csars under GOP presidents, I could see this as something other than politics.

    Steve

  21. superdestroyer says:

    The left is doing the same thng that Rep. Issa is doing. They voted for President Obama because he promised to be different and they wanted to vote the Republicans out of office. Now that the Obama Administration keeps doing the same as the Bush Administraiton, all of the so-called progressives are doing their best to act like Rush Limbaugh did during the Bush Administration,

    I knew that Democrats would behave, while in office, just like the Republicans and all of the talk of being better than the Repubicans was pointless.