At the beginning of last week, the new administration and its mainstream media allies were touting yet another profound “change” from the Bush administration. Obama’s Signing Statement Two-Step

What a difference two days makes.

At the beginning of last week, the new administration and its mainstream media allies were touting yet another profound “change” from the Bush administration.

Specifically, President Barack Obama issued a memorandum on presidential signing statements that, in the words of his Press Secretary, Robert Gibbs, broke with “the previous administration[’s practice of] issu[ing] … signing statements that … entailed … that people disregard portions of legislation or the intent of Congress.”

The New York Times and its reporter Charlie Savage bought the White House spin hook, line and sinker.  And, the very next morning, a story appeared with the headline “Obama Looks to Limit Impact of Tactic Bush Used to Sidestep New Laws.”

The article’s lead signaled the newspaper’s, as well as its reporter’s, relief for the “change” apparently made by the new President.  “Calling into question the legitimacy of all the signing statements that former President George W. Bush used to challenge new laws, President Obama ordered executive officials on Monday to consult with Attorney General Eric H. Holder Jr. before relying on any of them to bypass a statute,” Savage wrote.

The story went on to acknowledge that President Obama would “use signing statements himself,” but had “promised to take a modest approach” and use the prerogative “appropriately.”  This, according to Savage, was in huge contrast with former President Bush, who the article asserted “frequently used” presidential signing statements “to declare that provisions in the bills he was signing were unconstitutional constraints on executive power, and that the laws did not need to be enforced or obeyed as written.”

Fast forward just 48 hours, and both the White House and the liberal media would be forced to do a two-step on presidential signing statements.

You see, a week ago Wednesday -- or two days after issuing his signing statement memorandum -- President Obama signed the $410 billion omnibus appropriations bill, and in that new law there were a few items with which the new President took issue.

So what did President Obama do?  Well, just 48 hours after heralding “change” from the Bush administration’s practice of issuing signing statements, President Obama issued the first of his own.

Moreover, as noted by University of Chicago Law Professor Eric Posner: “We see the same old Reagan/Bush/Clinton/Bush theories in Obama’s first statement (including our old pal, the commander in chief power).”  In other words, for the Obama administration something old -- and disingenuously denigrated -- was new again.

Former Justice Department Office of Legal Counsel official Edward Whelan made the similarities between Bush’s and Obama’s signing statements even more clear.  In a post on National Review’s “Bench memos” weblog, Whelan compared, word-for-word, President Obama’s first signing statement with some of those issued by former President Bush.  And, as anyone could see in black and white, there wasn’t much difference.

Rather, as Whelan pointed out, “Obama’s signing statement raised five constitutional concerns about provisions of the Omnibus Appropriations Act of 2009, and those very same concerns are prominent among those frequently raised by President Bush in his signing statements.”

This fact led Whelan to observe that “President Obama engaged in a lot of empty grandstanding … when he issues a memorandum setting forth his intended practice on signing statements.  The memorandum was intended to suggest a sharp break with President Bush’s practice -- and a compliant media has largely adopted that line -- but the reality is … one of substantial continuity.”

Professor Posner agreed, explaining in his own post on the “Volokh Conspiracy” weblog that the “point, which can be easily missed, is that the signing statement controversy, stirred up by then Boston Globe reporter Charlie Savage who was duly awarded a Pulitzer Prize for his efforts, always rested on misunderstanding or confusion.”  Professor Posner was even more blunt in another post, stating that “[t]he signing statement controversy was phony.”

All of this makes it especially interesting to go back and read those Boston Globe stories authored by Savage, which won him the 2007 Pulitzer Prize for national reporting “for his revelations that President Bush often used ‘signing statements’ to assert his controversial right to bypass provisions of new laws.”

Back in 2006, Savage made it sound as though President Bush was using signing statements to shred the Constitution.  A story published on April 20, 2006, provides a good example.  In that article -- one of eight that won him the Pulitzer -- Savage’s lead was that “President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution.”

In fact, Savage found legal experts, including New York University Law Professor David Golove, to support that storyline.  In that same April 30 article, Savage used Professor Golove to assert, through paraphrasing and quoting, that “Bush has cast a cloud over ‘the whole idea that there is a rule of law,’ because no one can be certain of which laws Bush thinks are valid and which he thinks he can ignore.”

Indeed, Professor Golove was fully on-board, stating explicitly for the piece that, “[w]here you have a president who is willing to declare vast quantities of the legislation that is passed during his term unconstitutional, it implies he also thinks a very significant amount of the other laws that were already on the books before he became president are also unconstitutional.”

But all of this Pulitzer Prize-winning “journalism” and “analysis” applied only to President Bush, and not to his (liberal Democratic) successor.

At The New York Times, Savage is still covering presidential signing statements, now issued by President Obama.  But, oh how has the “journalism” and “analysis” changed.

When President Obama issued his first presidential signing statement last week, Savage once again drew on the “expertise” of Professor Golove, paraphrasing him to explain that “the prerogatives invoked by Mr. Obama were relatively uncontroversial.”

President Obama’s signing statement “reflects an executive branch that wishes to demonstrate publicly a commitment to upholding all of the president’s claimed constitutional prerogatives,” Golove explicitly stated for print, “even when the intrusions are trivial or just a matter of infelicitous wording.”

That certainly doesn’t measure up to the spectacular storyline of a President “ignor[ing] vast swaths of laws” that Savage, with the help of Professor Golove, was telling just a few years ago about President Bush, leading to fame and fortune -- not to mention a new job at the Times and a Pulitzer Prize.

Of course, if the White House can do the signing statement two-step, why shouldn’t an award-winning “journalist” and his “expert” legal source be able to do the same?

March 19, 2009
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