President Obama has done something with his Signing statements that we have not seen in previous presidents--or at least we have not seen as consistently. President Obama has made a habit of referring to the signing statements of his predecessors in order to justify his arguments in his own signing statements--and in particular, the signing statements of his Republican predecessors
Case in point. On Friday, President Obama dumped a signing statement to S.2195, which amended Section 407 of the Foreign Relations Authorization Acts of 1990 and 1991 (they were combined after a contentious series of moves and counter-moves, leading to the veto of the Foreign Relations Authorization Act of 1990 by President Bush. The debate extended to the point that President Bush and Congress were forced to combine two years of appropriations into one piece of legislation).
In President Bush's signing of the Act (HR 3792), he challenged, at a minimum, 12 different parts of the bill. I say minimum, because in a couple of sections of the bill, President Bush does not tell us what he is specifically challenging. For instance, in his signing statement, President Bush states: "A number of other provisions might be construed to require the executive branch to contact foreign governments and espouse certain substantive positions regarding specific issues." How is that for specificity?
In this particular instance, the Congress has decided to amend Section 407 of the law. To provide context, we need to go back to the end of the Cold War, the situation in Iraq & Kuwait, and the general tension in the Middle East. Yasir Arafat wanted to take the PLO mainstream in order to be a player in the peace process. Part of this conversion involved delivering a speech to the UN, which the US Congress opposed (in part because of the strength of the Israeli Lobby in the US). As a result, Congress added a section to HR 3792 which stipulated:
The President shall use his authority, including the authorities contained in section 6 of the United Nations Headquarters Agreement Act (PL 80-357), to deny any individual's admission to the United States as a representative to the United Nations if the President determines that such individual has been found to have been engaged in espionage activities directed against the United States or its allies and may pose a threat to United States national security interests.
Even though the Act contained a waiver, President Bush nonetheless stated in his signing statement:
Section 407 of the Act is similarly subject to inappropriate interpretation. This section purports to require that no individual may be admitted to the United States as a representative to the United Nations if the individual" has been found to have been engaged in espionage activities directed against the United States or its allies and may pose a threat to United States national security interests." In effect, this provision could constrain the exercise of my exclusive constitutional authority to receive within the United States certain foreign ambassadors to the United Nations. While espionage directed against the United States and its allies is a problem of the utmost gravity, curtailing by statute my constitutional discretion to receive or reject ambassadors is neither a permissible nor a practical solution. I therefore shall construe section 407 to be advisory.
In fact, President Bush kicked off the signing statement by declaring:
The Constitution vests in the President the executive power of the United States. The executive power includes, among other things, the authority to receive and appoint ambassadors and to conduct negotiations on behalf of the United States with foreign governments. Thus, pursuant to the Constitution, the President is entrusted with control over the conduct of diplomacy. The content, timing, and duration of negotiations with foreign governments are also within the President's control. Unfortunately, many provisions of this Act could be read to violate these fundamental constitutional principles by using legislation to direct, in various ways, the conduct of negotiations with foreign nations.
So fast forward 23 years, and instead of it being the PLO, it is the Iranians. Nonetheless, the issue is the same: terrorism and the Middle East. The Iranians have chosen a new ambassador to the United Nations, who also is connected with the group of Iranians who stormed the US Embassy in Tehran in 1979 and held 52 Americans hostage for 444 days. The new Ambassador, Hamimd Aboutalebi, has declared that his involvement in the controversy was limited to providing translation and negotiation services. It does not really matter given that this issue, like the PLO in 1990, is tied more to American domestic politics rather than whether he was or was not directly involved in the hostage crisis. What is clear is that Aboutalebi is a far more removed figure from terrorism than Yasir Arafat. But like I said, terrorism and Middle East politics are secondary to the central issue--the 2014 mid term elections. And possibly even the 2016 presidential elections. I say that because leading the way on this issue has been Senator Ted Cruz (R. TX), current media darling AND constant headliner on 2016 discussions.
So the Congress pushed this issue ostensibly to protect national security, though it is uncertain how denying a diplomat entry into the US because of tenuous ties to a controversial issue 40 years ago is protecting the national security of the US, but OK. So President Obama was boxed into signing the legislation, and as a way to take some of the sting off of the signing, he 1) signed it late in the day, Good Friday afternoon, and 2) he fought the Congress's bipartisan measure with some bipartisan fire of his own by referring to George H.W. Bush's signing statement from 1990.
Today I have signed into law S. 2195, an Act concerning visa limitations for certain representatives to the United Nations. S. 2195 amends section 407 of the Foreign Relations Authorization Act, Fiscal Years 1990 and 1991, to provide that no individual may be admitted to the United States as a representative to the United Nations, if that individual has been found to have been engaged in espionage or terrorist activity directed against the United States or its allies, and if that individual may pose a threat to United States national security interests. As President Bush observed in signing the Foreign Relations Authorization Act, Fiscal Years 1990 and 1991, this provision "could constrain the exercise of my exclusive constitutional authority to receive within the United States certain foreign ambassadors to the United Nations." (Public Papers of the President, George Bush, Vol. I, 1990, page 240). Acts of espionage and terrorism against the United States and our allies are unquestionably problems of the utmost gravity, and I share the Congress's concern that individuals who have engaged in such activity may use the cover of diplomacy to gain access to our Nation. Nevertheless, as President Bush also observed, "curtailing by statute my constitutional discretion to receive or reject ambassadors is neither a permissible nor a practical solution." I shall therefore continue to treat section 407, as originally enacted and as amended by S. 2195, as advisory in circumstances in which it would interfere with the exercise of this discretion.
So there you have it. President Obama issued a signing statement to not only challenge the original law, but also to protect the current prerogatives of his office by treating the offending provisions as "advisory" and "discretionary".
Some ask: Given that the original law and the current law contain a section that allows the president to waive the offending passage should reason warrant it (and so long as he informs the Congress of the waiver), why the need to challenge the legislation? And the answer to this is that the president does not believe he needs to explain a waiver to the Congress. Instead, though he was given a waiver, the president believes that the Constitution gives him sole jurisdiction over matters of foreign policy, and every other prerogative executive in nature--not the Congress. Therefore any legislation that impacts negatively on the president's powers--past, present, and future--must be defended, even if, in the end, the President decides to consult the Congress on his waivers.