Washington insiders were stunned into relative silence last week when a bill managed to pass both chambers of Congress — unanimously. That the bill was written by Senator Ted Cruz, Tea Party champion, was even more of a shock.
When President Obama signaled he would sign the bill into law, congressional Republicans stood ready to take a well-deserved victory lap. After all, Cruz, perceived as a divisive character by members on both sides of the aisle, managed to unite a recalcitrant Congress behind his piece of legislation.
A victory lap may be premature, however. President Obama issued a signing statement when he approved the law leaving plenty of wiggle room when it comes to enforcement.
What the Law Says
When Iran’s “moderate” President Hassan Rouhani tapped Hamid Aboutalebi to be the UN ambassador, many, including White House officials, called the appointment troubling. Aboutalebi participated in the 1979 seizure of the American Embassy in Tehran, resulting in 444 days of captivity for American hostages.
According to the Washington Post, Secretary of State John Kerry said the appointment was a “slap in the face” to the American survivors and their families, and encouraged Rouhani to reconsider the appointment.
When the State Department failed to take quick action to deny a visa to Aboutalebi, Cruz set about drafting legislation that would force the administration’s hand to keep the admitted terrorist out.
Cruz’s law, S.2195, expands section 407 of the Foreign Relations Authorization Act and bans individuals who have participated in espionage or terrorism against the US from being admitted to the country as a representative of the United Nations.
What Obama’s Signing Statement Says
According to the Washington Examiner, Obama has decided to treat the legislation as “advice,” issuing a lengthy signing statement concluding with the following sentence: “I shall therefore to treat Section 407, as originally enacted and as amended by S.2195, as advisory in circumstances in which it would interfere with the exercise of discretion.”
Obama’s argument rests on his belief that the law would unconstitutionally constrain his exclusive authority to receive ambassadors and other representatives to the United Nations.
On its surface, the move may seem more controversial than it actually is. As Will Baude of the Washington Post’s law blog “The Volokh Conspiracy” explains, Obama is actually building on the argument presented in the signing statement President George H. W. Bush attached to the Foreign Relations Authorization Act of Fiscal Year 1990 and 1991.
Section 407, one of nearly 2000 provisions in the 1990 legislation, directed the president to deny visas to anyone guilty of espionage or considered a threat to national security. President Bush’s signing statement on that legislation pointed out that “curtailing by statute [the President’s] constitutional discretion to receive or reject ambassadors is neither a permissible nor a practical solution.”
What Happens Next
Some legal scholars, including Michael Ramsay of the University of San Diego Law School, writes that President Obama had a duty to veto the law, given Congress lacks authority under the Constitution to limit the president’s right to receive ambassadors.
Article II, Section 1 of the Constitution grants the president broad and exclusive powers in national security and foreign affairs, including receiving emissaries and ambassadors. President Obama, in approving the law, albeit with the signing statement, signaled to the Congress that he understands and agrees with their concerns regarding Aboutalebi’s appointment, while he rejects any encroachment or limiting on his executive authority in foreign policy.
For Republicans, this latest move by Obama only reinforces his reputation as an untrustworthy executive who uses the enforcement — or failure of enforcement — of duly enacted laws to achieve policy goals on issues he cannot win legislatively.