Congressional control over the purse—the ability to authorize and restrict federal spending—acts as the principal check against executive overreach. Several Obama signing statements, from both his first and second terms, contest this traditional understanding.

For example, on January 2, 2013, upon signing H.R. 4310, the “National Defense Authorization Act for Fiscal Year 2013,” Obama objected to, among others, § 1027, which barred the use of appropriated funds to transfer Guantanamo detainees into the United States. Section 1027 renewed a prior fiscal year bar on such spending. The President signed the bill into law, but objected that it “would, under certain circumstances, violate constitutional separation of powers principles.” Although the statement did not specify any circumstance that would violate the separation of powers, he reserved a right to “implement [the spending restrictions] in a manner that avoids the constitutional conflict.” Notwithstanding the congressional spending restriction, an (as yet) unspecified saving construction would entitle the President to funding to transfer detainees into the United States.

Similarly, in April 2011, Obama objected to § 2262 of “the Department of Defense and Full-Year Continuing Appropriations Act of 2011,” which specified that no funding made available by the act “may be used to pay the salaries and expenses” for four designated “czar” advisory positions. Section 2262 did not prohibit the President from seeking advice on particular subjects. Obama signed the provision into law but asserted a constitutional “prerogative to obtain advice that will assist him in carrying out his constitutional responsibilities, and do so not only from executive branch officials and employees outside the White House, but also from [compensated] advisers within it.” He explained that “[l]egislative 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 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.” Thus, Obama asserted a constitutional entitlement to congressional funding for the particular advisory positions.

President Richard Nixon had asserted a power to impound appropriated funds, i.e. a power to decline to spend congressionally authorized monies. By contrast, the Obama White House claims the President has the more far-reaching power to spend without any congressional authorization as a matter of constitutional necessity or entitlement. This novel theory revises the traditional check-and-balance of congressional control over the power of the purse.

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