The Law: Prerogative Power and Executive Branch Czars: President Obama's Signing Statement

On April 15, 2011, President Barack Obama issued a controversial signing statement that effectively nullified a provision of a bill he had signed into law. Specifically, the president "abrogated" section 2262 of the budget compromise law, which prohibited using appropriations for the salaries and expenses of the czars of energy, health reform, auto recovery, and urban affairs (Obama 2011). The defunding provision was part of a larger effort by Congress to prevent the increased centralization and control of public policy by White House aides who are not confirmed by the Senate. The moniker "czar" is the shorthand term used by the media, politicians, and scholars to describe certain officials who are appointed by the president to provide advice, coordinate policies among multiple departments and agencies, and even to make important personnel and spending decisions. Lacking senatorial confirmation and even prohibited many times from testifying, czars are a controversial feature of the executive branch. Given the substantial number of czars in the Obama White House, Republican members of the House had been trying to pass similar anti-czar measures for nearly two years before successfully adding the anti-czar provision to the budget bill (Fabian 2009; O'Brien 2011; Zimmermann 2009). Senate Republicans had also sought information about 18 positions in the Obama administration that they considered czars and asked that the president "refrain from creating any new czar-type posts" (Lerer 2009). Obama justified his plan to set aside the anti-czar provision by stating that the "President has well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority." Continuing, Obama noted that he has "the prerogative to obtain advice" in fulfilling his "constitutional responsibilities" from any official or employee within the executive branch or the White House. "Legislative efforts that significantly impede the President's ability to exercise his supervisory and coordinating authorities or to obtain the views of the appropriate senior advisers," he claimed, "violate the separation of powers by undermining the President's ability to exercise his constitutional responsibilities and take care that the laws be faithfully executed." The result being that Obama would "construe section 2262 not to abrogate these Presidential prerogatives" (Obama 2011). Obama's signing statement set off a variety of criticisms, most notably from Representative Steve Scalise (R-LA), author of the anti-czars provision of the budget bill: "The President does not have the option of choosing which laws he will follow and which he will ignore." He continued: "The United States is not a kingdom run by a political dictator, and President Obama needs to quickly reverse course and abide by the law eliminating the czars that were part of the budget resolution agreed to be Speaker Boehner, Senator Reid, and President Obama himself" (Scalise 2011). Some Democratic lawmakers, however, countered by saying that section 2262 was "an intrusive micromanagement of the president's White House staff via appropriations" (Bravender 2011). The controversy over the president's signing statement raises a significant constitutional question: is there a constitutional or any legal basis for presidents to claim that they have the authority to shield themselves and their aides from statutory direction and controls? President Obama believes so, and he went so far as to invoke the concept of prerogative power as a defense of his action to void a provision of a bill he had signed into law. To answer the constitutional question raised by Obama's action, this article describes the concept of prerogative power and provides an assessment of whether presidents possess such authority. It poses the question of whether presidents have the ability to set aside laws after they have signed them. …