Obama leaves himself a loophole

President Obama has undone another controversial initiative by his predecessor, George Bush, but, as in the case of other such repeals, not as fully or totally as his supporters had hoped.

This one concerns signing statements, which until the Bush administration was an obscure practice whereby a president appends instructions on how to carry out a bill’s provisions — or dissents from those he believes unconstitutional — when he signs the measure into law.

Bush invoked this practice with greater frequency and greater scope than any preceding president. The New York Times cites Miami University political scientist Christopher Kelley as finding that, by the time Bush left office, he had challenged about 1,200 provisions of bills — twice the number of all previous presidents combined.

While previous signing statements were often highly technical, Bush used them to further his assertion that the president’s wartime powers allowed him to ignore laws that Congress had passed and that he, moreover, had signed. He in particular disregarded congressional intentions on torture, surveillance and periodic reporting on the conduct of the USA Patriot Act.

Bush’s use of signing statements raised serious issues of separation of powers and reflected an expansive view of the "unitary executive" that seemed to have existed only in Bush’s circle of advisers.

During the presidential campaign, Sen. John McCain said he would never issue a signing statement and would instead veto the entire bill and sent it back to Congress to remove the objectionable provisions. Obama was more restrained in his stand.

In a memorandum to government agencies, Obama instructed executive branch officials to clear it with U.S. Attorney General Eric Holder before abiding by any of the Bush signing statements.

Obama said that renouncing signing statements was impractical when Congress passes massive omnibus bills that a president would have to veto in their entirety because of a concern about a single provision. He promised to use signing statements only "to address constitutional concerns" and that he would do so with "conscience and restraint."

While this makes practical sense, it is hardly the clean break with the past that his supporters had expected.