Daniel Schuman [Director of Communications and Counsel, The Constitution Project]: "On March 11, 2009, President Obama issued his first presidential signing statement – a formal expression of his views regarding legislation that he has just signed into law – identifying five areas in an omnibus appropriations act that he will decline to enforce because of "well-founded constitutional objections." How similar is President Obama's view of his constitutional role to that of his predecessor?

Presidents have used signing statements [PDF file] throughout American history to thank supporters, provide reasons for signing a bill, or to express satisfaction or displeasure with legislation passed by Congress. In recent years, presidents have used signing statements in an (unsuccessful) attempt to influence how courts interpret legislation by declaring their views on the intent, purpose, and scope of the legislation. However, only infrequently have presidents challenged or denied effect to legislation they consider unconstitutional. Prior to 2001, presidents issued statements containing 575 constitutional objections to legislation; President George W. Bush issued more than 1,000, [PDF file] often with only perfunctory or vague justifications, and frequently based upon a broad assertion of the "unitary executive" theory.

The Constitution Project's Liberty and Security Committee issued a "Statement on Presidential Signing Statements" [PDF file] that explained the separation of powers issue at stake. "By signing a particular bill into law, but then issuing a signing statement that declares that he will not give effect to it, or to a provision of it, the President is effectively vetoing the law without affording Congress the opportunity to override the veto, as the Constitution requires." Thus, the president is asserting the unilateral power to repeal and amend legislation, and is displacing the judiciary as the final expositor of the Constitution.

President Obama has not claimed "unitary executive" powers as did President Bush, and on March 9, President Obama promulgated his own policy on presidential signing statements. President Obama directed all executive branch departments and agencies to "seek the advice of the Attorney General before relying on signing statements issued prior to the date of this memorandum as the basis for disregarding, or otherwise refusing to comply with, any provision of a statute."

He also announced that he would continue to use signing statements, but in a seemingly more limited fashion, addressing "constitutional concerns only when it is appropriate to do so as a means of discharging my constitutional responsibilities." He went on to say that "[signing statements] serve a legitimate function in our system, at least when based on well-founded constitutional objections. In appropriately limited circumstances, they represent an exercise of the President's constitutional obligation to take care that the laws be faithfully executed, and they promote a healthy dialogue between the executive branch and the Congress."

In narrowing the occasions upon which he would seek to exercise this claimed power, President Obama declared his intention to follow four principles, as summarized below:

1. Inform the Congress of the administration's constitutional concerns about pending legislation.

2. Construe legislation passed by Congress as presumptively constitutional, and only use "well-founded" methods of constitutional interpretation as the basis for finding that legislation is not constitutional.

3. Provide enough specificity to make clear the nature and basis of any constitutional objection asserted.

4. Construe a statutory provision in a manner that avoids a constitutional problem only if that construction is a legitimate one.

While not condemning all signing statements, the Constitution Project called upon Congress in 2006 to "make unmistakably clear the link between a President's inappropriate use of signing statements [PDF file] and the costs of doing so." The American Bar Association, also in 2006, took an even narrower view [PDF file], recommending that "the President…confine any signing statements to his views regarding the meaning, purpose and significance of bills presented by Congress, and if he believes that all or part of a bill is unconstitutional, to veto the bill in accordance with Article I, § 7 of the Constitution of the United States, which directs him to approve or disapprove each bill in its entirety."

The Constitution Project welcomes President Obama's willingness to be more transparent and to limit the occasions when he will use signing statements. However, while not explicitly saying so, he left open the possibility that he may, in some circumstances, continue the practice of using signing statements to indicate that he will not enforce duly-enacted laws because of his constitutional objections, rather than vetoing a bill and providing Congress with the opportunity to amend the legislation or override the veto.

To allow the president to choose which laws to apply undermines our Constitution and the freedoms that depend upon it. In the words [PDF file] of former Representative Mickey Edwards (R-OK), "Presidential signing statements may not sound like such a big deal, but they are declarations of the right of a President to be above the law, and that is a path that, once taken, will prove ultimately fatal to our democracy."