Omnibus Appropriations Act, 2009-President Obama Issues First Constitutional Signing Statement, Declares Appropriations Bill Provisions Unenforceable

Harvard Law Review, February 2010 | Go to article overview

Omnibus Appropriations Act, 2009-President Obama Issues First Constitutional Signing Statement, Declares Appropriations Bill Provisions Unenforceable


OMNIBUS APPROPRIATIONS ACT, 2009-PRESIDENT OBAMA ISSUES FIRST CONSTITUTIONAL SIGNING STATEMENT, DECLARES APPROPRIATIONS BILL PROVISIONS UNENFORCEABLE.--Statement on Signing the Omnibus Appropriations Act, 2009, DAILY COMP. PRES. DOC. No. DCPD200900145 (Mar. 11, 2009).

As the mechanism through which the President signals to Congress his intended nonenforcement of federal law, "constitutional" signing statements (1) track a growing separation of powers conflict. In constitutional signing statements, the President claims the authority to determine which provisions in an enacted law violate the Constitution and whether the executive branch will disregard or reinterpret such provisions. In contrast to "rhetorical" signing statements--those that "reward constituents, mobilize public opinion," (2) and reflect, generally, the President's extralegal opinions and concerns (3)--constitutional statements are a source of great legal and political controversy. (4) In such statements presidents employ the canon of constitutional avoidance to save ambiguously worded legislative text or refuse to enforce altogether those provisions deemed irreconcilable with the Constitution.

On March 11, 2009, President Barack Obama signed the Omnibus Appropriations Act, 2009, (5) into law. President Obama attached to the Act a constitutional signing statement, (6) the first of his presidency. With it, President Obama became the latest President to signal constitutional objections to statutory provisions through rote and largely symbolic signing statements. This uniform practice is telling: institutional pressures not only mandate that presidents signal their disapproval, but also militate strongly in favor of the signing statement as the default executive mechanism. Indeed, the sheer strength of these pressures helps explain why President Obama would continue to rely on signing statements given the heightened political costs.

The Omnibus Appropriations Act allocates $410 billion in funding and contains over 8500 earmarks totaling $7.7 billion. (7) President Obama's March 11 signing statement was constructed in accord with a March 9 memo that set out the Administration's policy with respect to signing statements. The memo acknowledged that "signing statements serve a legitimate function in our system, at least when based on well-founded constitutional objections." (8) It also specified the required elements for statements: identification of the offending sections, the constitutional logic underlying the objections, and the Administration's intended response. (9)

The March 11 statement first invoked the President's foreign affairs powers. Scattered provisions of the Omnibus Appropriations Act mandate, inter alia, that the U.S. Trade Representative pursue recognition in the World Trade Organization of the right to distribute funds collected through "antidumping and countervailing duties" pursuant to the "negotiati[on] objectives contained in the Trade Act of 2002." (10) The President objected, claiming that this "unduly interfer[ed] with [his] constitutional authority in the area of foreign affairs by effectively directing the Executive." (11) He would "not treat these provisions as limiting [his] ability to negotiate." (12)

The President next objected to certain provisions that purported to undermine his powers as Commander in Chief. Section 7050 prohibits the use of funds when a United Nations peacekeeping mission "involve[s] United States Armed Forces under the command or operational control of a foreign national" and "the President's military advisors have not submitted ... a recommendation that such involvement is in the national interest[]." (13) President Obama stated that the law undermines his "authority as Commander in Chief" by conditioning the exercise of his power on the "recommendations of subordinates." (14)

The signing statement also took issue with portions of the Act concerning executive communications with Congress.

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