Tuesday, March 10, 2015

How Soon We Forget

I am scratching my head over the Senate's attempted end run of the President in order to  derail whatever negotiations the president is going to make with Iran over its nuclear program.  The Senate Republicans--well, 47 Republicans--seem to be motivated not to bring  a resurgence in institutional prerogatives, but instead to demonstrate their support for Israel--the Israel that is represented by Benjamin Netanyahu--in the hopes of driving a wedge in the domestic Jewish vote. So in reality 47 Senate Republicans have issued a deeply insulting/condescending letter in the hopes of 1) helping out their nominee in the 2016 presidential election (among the hopefuls are several co-sponsors of this letter) and 2) doing their level best to try and embarrass the president (at least if you are Senator John McCain, that is). 

Just a couple of interesting things about the letter: First, the GOP controls the Senate, yet the Senate GOP was unable to get a majority of their members to support it--including losing seven of their own members. Second, the Senate Majority Leader--supposedly the leader of his Party--is not on the first two lines of signatures--his name doesn't appear until third on the list. Third, 95% of the senators have signatures that are illegible.  Fearing that his terrible handwriting might cost him some props in the 2016 GOP Primary, Marco Rubio signs his name in a bunch of squiggly lines, but then writes as neatly as possible (FLA) next to his name.  Apparently he did not get the memo that Florida dropped the "A" from the initials years ago.  Fourth, not on the list of co-sponsors is the Chair of the Senate Foreign Relations Committee.  Fifth, the letter goes on and on about how any deal needs the support of Congress, yet missing from the list of sponsors are any Republicans from the House. And finally, following the fifth point, if Congress is asserting its prerogatives--truly asserting prerogatives--then you would hope that they would try and forge a bicameral, bipartisan letter of admonishment. But then again, congressional prerogatives have absolutely nothing to do with the intent of the letter.

Let's take a closer look at the letter to explore just how poorly it is argued as well as to look at how short the Congress and the Press's memory is regarding the action that the administration has undertaken.  First, the Constitution provides an "advice and consent" role for the Senate in the treaty making process, but this is not a treaty, and anyway George Washington ended the courtesy of "advice" after the Senate refused to participate in a treaty with Indian Nations in the 18th century.  Nonetheless, the GOP argues that in our system, the president "negotiates international agreements" and "Congress plays the significant role of ratifying them." Nothing could be further from the truth. Congress does not play a role in international agreements, and only treaties may be ratified, and then only with 2/3 support of the Senate (which is not for ratification, but, as Jack Goldsmith argues, is for consent to be ratified, which the president could still refuse to do), which the letter does go on to clarify.  Next, the letter discusses a "so-called congressional-executive agreement" that "requires a majority vote in both the House and the Senate", which would require 51% of the House and 60% of the Senate (to overcome a filibuster). There is nothing in existence called a "congressional-executive agreement" short of what we call the "lawmaking process," but I do not think this is what the author intended by the curious phrasing used.  And to make things even more confusing, the letter also seems to make a qualitative distinction between the "congressional-executive agreement" and the simple "executive agreement". The executive agreement, the letter states, can easily be revoked by the next president "with the stroke of a pen" and "future Congresses could modify the terms of the agreement at any time". Let's put aside the moment the tremendous assumptions built into the statement--assuming the next president is a Republican, and assuming the next president desires to revoke the agreement, and assuming that a future Congress can muster the majorities need to pass legislation overturning the agreement, and assuming once passed, that they can muster the super-majorities necessary to overturn a presidential veto!  A lot of assumptions. In fact, something the GOP seems incredibly ignorant of, regardless of Democrat or Republican, there tends to be a great deal of continuing support for the unilateral decisions made by previous administrations, so I am not sure the GOP will get the sort of relief they are hoping for in the event of a Rubio administration. Power has a way of overriding party support.

But let's get back to the point of the executive agreement.  It seems that the media, and the Congress, cannot remember back long enough to a day when executive agreements were commonplace, and where complaints about the constitutional abuse of power via acts of unilateralism were all about executive agreements, and not about #executive orders or #signing statements.  In fact, the executive agreement became a far more useful device for presidents over the treaty a long time ago.  For instance, in 1944, Edwin Borchard titled his Yale Law Review article "Shall the Executive Agreement Replace the Treaty?" (The Yale Law Journal. Vol. 53, No. 4). In fact, the Executive Agreement's constitutionality has the backing of the Supreme Court. In the decision Dames & Moore v Regan (453 US 6544), William Rehnquist upheld an executive agreement Jimmy Carter made with the Iranian Government to end the legal proceedings against the Iranians as a result of the overthrow of the Shah (and an agreement that had the continuing support of the Reagan administration). It is a matter of fact that the executive agreement is the preferred device of presidents of both parties, leaving the treaty a near relic of a long ago time.

Thus the GOP Letter seems to demonstrate that those in need of the basic American civics lesson is not the Iranians, but is instead the Senate Republicans.

For those interested in the executive agreement, I recommend the following:

Sunday, April 20, 2014

Ya Can't Come In (Ya Can Come In)

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.

Obama wrote:

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.

Friday, January 31, 2014

Unilateralism 101

A July 1998 “New York Times” article described the frustration inside the Clinton administration with the persistent gridlock in Congress. To get around the gridlock, the Clinton administration planned to use executive orders to accomplish their political goals.  Presidential advisor Paul Begala summed it this way: “Stroke of the pen. Law of the land. Kind of cool.”

In Tuesday night’s State of the Union address, President Obama told Americans: “…you don't have to wait for Congress to act.” He then explained areas where he could act without the support of the Congress: from raising the minimum wage for some employees of government contractors, to fixing problems in the economy and in our crumbling infrastructure by slashing the bureaucracy.  Even before the address, media were already highlighting President Obama’s promise to govern alone.

As the Begala quote above demonstrates, there is a great deal of promise for a president to forget for a moment of our system of “separate institutions sharing power”, and instead act alone. Presidents since Washington have, from time to time, acted without the consent or blessing of the Congress.  But it has been the presidency of the last 40 years that has made it a staple of governing.  The question is why?  There are two answers to that question.

First, the political polarization in our system makes it difficult, even where the President’s party controls the Congress, to things done.  President George W. Bush enjoyed (mostly) unified party government, along with very high public approval numbers through most of his first term, yet he used the bill signing statement to void more provisions of laws than all previous presidents combined.

Second, the president engages in unilateral behavior more in his second term because he knows, along with the opposition, that his days are limited. The political system begins the process of looking towards the next presidency, and the opposition in Congress digs in its heels to prevent giving the president, and his party, anything that may help in the next presidential election. 

As is often the case when the president decides to govern alone, the critics claim that presidential unilateralism violates the Constitution.  Senator John McCain (R. AZ), after Tuesday’s State of the Union Address, appeared before television cameras and proclaimed President Obama “violated the intent of the Constitution” while Senator Ted Cruz (R.TX) used words such as “executive fiat” and “persistent pattern of lawlessness” to describe Obama’s promise to engage in unilateralism. While partisans on the opposite side of the president claim any unilateral action violates the Constitution, the fact remains that the Constitution gives the president a great deal of room to act alone.  The language of Article II is written with less specificity than Article I, and thus encourages the president to push and expand the boundaries of his constitutional powers.

The president has a diverse set of devices to help him work alone.  Among the more significant:
·      Executive agreements—Presidents make agreements with foreign countries that have the force of law.  The benefit to using an executive agreement is they get around the Senate ratification process.  Even though the Senate has ratified most treaties, the process is cumbersome, lengthy, and has the potential to embarrass the president if the treaty fails.  Thus modern presidents have utilized the executive agreement in preference to the treaty, and President Obama has been more likely than his predecessors to use an executive agreement instead of a treaty.
·      Presidential proclamations—Most people think of the proclamation as largely ceremonial, such as the “Religious Freedom Day” Proclamation.  But some proclamations can be substantive, such as President Bill Clinton’s proclamations claiming public land. Those proclamations, issued in his final days in office, set aside millions of acres of land as “protected” from developers, loggers, and energy industries.
·      Presidential memoranda—these are circulated throughout the Executive Branch to direct or explain a presidential policy or position. But because they are directing bureaucratic decisions, they have the effect of policy.  Presidents have used memoranda to lift or secure rules involving abortions or information related to abortion. In fact, President Obama recently used the memoranda to deal with the issue of guns and gun-related violence after legislation failed in the Congress.    
·      Signing statements—The use of the presidential signing statement dates to the Monroe administration.  But the systematic use of the signing statement to act as a type of item veto or to put the president’s spin on the law dates to the Reagan administration.  Recent presidents have used the signing statement to prevent Members of Congress from serving on executive branch committees, to protect military service personnel who tested HIV positive, to limit protections for whistleblowers, and to refuse to share information with congressional committees.
·      Executive orders—Executive orders date to the Washington administration.  These orders are used to direct or instruct bureaucrats to either take a course of action or cease taking an action.  Presidents have used executive orders to get around a recalcitrant Congress. For instance, President Truman’s desegregation of the United States military in 1948 or George W. Bush’s order creating the Office of Faith Based Initiatives after the Congress refused to consider it for a cabinet level position. Bill Clinton used an executive order to wage war in Kosovo.

While these unilateral devices give the president a great deal of leeway to act, they do have some limitations.  First, they are not as sound as legislation and may have a greater likelihood of being overturned by the Supreme Court. For instance, when President Bush used an executive order to create military tribunals, the Supreme Court found it violated the Constitution.  Second, the unilateral actions work best when they do not attract the notice of the Congress, the media, and the public.  When they do get noticed, the political push back can render them ineffective. For instance, President Obama has issued a signing statement in every national defense authorization bill he has signed challenging provisions forbidding him to close the Gitmo detention facility.  Even though he has refused to recognize the provision as constitutional, the facility has remained open. And third, all of these unilateral devices have no guarantees they will last past the term of the presidency.  Unlike legislation, which would require congressional action, the incoming president can, with the stroke of the pen, undo the unilateral actions.  For instance, Presidents Reagan and Bush used memoranda announcing restrictions on the use of federal money to international family planning agencies where abortions were concerned. President Clinton issued a memorandum after taking office removing the restrictions. President George W. Bush issued a memorandum soon after taking office reinstituting the restrictions, and then President Obama issued a memorandum removing the restrictions. 

It is clear that as the days draw to a close on the Obama administration, there are two things that will happen: First, Obama’s frustration with Congress coupled with his dwindling days in office will force him to rely more and more on unilateralism.  Second, whoever wins the presidency in 2016, Democrat or Republican, one thing is for certain—that person will discover a powerful set of unilateral devices at his or her disposal, and will be under great pressure to use them.

Monday, September 09, 2013

Making Sense of Tanenhaus

Sam Tanenhaus, writer at-large at the "New York Times", has penned a column in today's times that was designed to make a splash even though it is a complete misread of the power of the modern presidency as well as the historical development of presidential power.  In a nutshell, I have not stopped scratching my head at the thesis and facts grounded in the article itself.
The overall frame of his argument is the conflict in Syria and the potential for US involvement.  Tanenhaus believes that President Obama going to Congress to receive authorization to use force to stop the Syrian regime from using chemical weapons against its citizenry represents a diminishing of the type of power modern presidents wield.  In fact, his actions are not just out of step with recent presidents, but Tanenhaus also suggests that Obama's actions "possibly jeopardize the ability of future presidents to pursue ambitious foreign policy objectives."  Wow.
Tanenhaus then proceeds to his main argument: Obama "...holds office at a time when the presidency itself has ceded much of its power and authority to Congress."  His evidence? Clinton's complaint that the "presidency still mattered" following the 1994 Republican Revolution; George W. Bush's claim that the 2004 victory gave him capital that he intended to spend, where he promised Social Security and immigration reform, and both failed spectacularly in Congress.
Further proof of a decline in presidential power can be found in popular culture. The evidence? HBO's comedy "Veep" and Netflix's mini-series "House of Cards". In the former, presidential power decline comes in a president who is never seen, and in the latter political power is vested not in the president, but instead the House majority whip. I am not making this up.
Then there is divided government ("...a staple of American politics for many years") which has brought into the Congress ideologically pure representatives who buck the type of charm offensive that was a staple of the Reagan presidency (schmoozing on the yacht "Sequioa" or smoking cigars with Tip O'Neill following the budget vote in 1981).  Further, even though the national security powers of the president have gown "mightily", Tanenhaus claims that Obama's "...decision to go to Congress arguably shows a greater deference on war and peace than any president since Franklin D. Roosevelt."
It is hard to sum up all the things wrong with this article, but let me focus on a few.
First, it is not reflective of the realities of the last 50 years.  Take the last quote about presidential deference. President Obama is not asking for a declaration of war, which is what the Constitution says must happen, nor is he accepting the final decision of Congress. In fact, Tanenhaus selectively quotes from the President when he quotes Obama as saying: "I'm the president of the world's oldest constitutional democracy...[we must respect] members of Congress who want their voices to be heard."  In reality, Obama said this, but then went on to say: "Yet, while I believe I have the authority to carry out this military action without specific congressional authorization, I know that the country will be stronger if we take this course, and our actions will be even more effective." In fact, every president since FDR has suggested the need for congressional authorization, but every president has also qualified this with the stronger assertion that absence the authorization, the president can still use force.  George H.W. Bush got Congress to authorize the invasion of Kuwait in what many hailed as a finer moment in our constitutional democracy (because it was a contentious debate and vote), but only after Bush had sent 500,000 troops to Saudia Arabia. If you believe for one moment that if Congress had rejected the authorization, that Bush would have packed up and come home, then I have a bridge I would like to sell you.
Second, Tanenhaus misreads our own history in the development of the presidency.  He throws in an odd discussion of the views of Woodrow Wilson to buttress the notion that the decline of presidential power is rooted in the design of the Constitution.  Tanenhaus refers to Wilson's doctoral dissertation, published at the end of the 19th century, and titled "Congressional Government". He notes that Wilson's dissertation was an explanation of why the presidency was so weak (and aside from a few Presidents, such as Jefferson, Jackson, and Lincoln, it was a weak institution). Wilson argued for a radical constitutional redesign to make our system more like the European parliamentary system given that the presidency was a non-essential institution.  19th century presidents answered their own mail, gave guided tours of the White House, paid for their own staff, and were constantly at war with the congressional partisans in the Cabinet and in the Office of the Vice President.  But by the time Wilson became president, his view of presidential power radically shifted, largely because of what Teddy Roosevelt accomplished.  Wilson harnessed the "rhetorical" powers of the presidency by bringing back the public lecturing of the Congress in the State of the Union Address.  Tanenhaus claims that Wilson's two terms represent the "first modern instance of the 'imperial presidency', though not many students of the presidency would agree. Even more confusing: All of the quotes that Tanenhaus uses from Wilson on the presidency came before Wilson was actually president!
I really am not sure what has shaped Tanenhaus's view of modern presidential power, but let me explain what I know from both my reading and my own research.  The muscular presidency has been on a steroid induced power trip for nearly 40 years now.  In large part, the effects of Vietnam AND Watergate damaged the Ford and Carter presidencies ability to make the process work like it should.  If Tanenhaus wrote this article in 1978, I would have made it required reading for my students.  But Reagan, who picked up on how Ford and Carter made things work by unilateral means, set to the task of institutionalizing Presidential Unilateralism.  The basis of Presidential Unilateralism suggests that when the system boxes you in, you look for independent ways to expand the box, or what my colleague Ryan Barilleaux eloquently refers to as "Venture Constitutionalism". Add on to Vietnam and Watergate the paralysis of polarization coupled with a hostile media, and you get presidents who start announcing weird ideals such as the "Unitary Executive" Theory of Presidential Power--a theory that suggests the Constitution signs off of presidential unilateralism. And with it you get the heightened use of signing statements, executive orders, proclamations, and so on.
In sum, I cannot understand how Tanenhaus squares his view of presidential power with that of reality, because reality tells us that the president can independently order the assassination of American citizens.  Or can refuse to recognize or enforce over a 100 provisions of law contained in bills he has signed into law. Or can do the multitude of things we have learned in the intelligence leaks of the last several months. 
If Tanenhaus is going to continue to write on the presidency, then I suggest he attend a class on the presidency taught at any college in the United States.  In fact, if he acts now, I would be happy to send him my syllabus from my undergraduate course on the American Presidency.  Free of charge.

Monday, February 18, 2013

Obama's First Term Signing Statements

I have done my counting for President Obama's first term signing statements, and if you believe that he promised to use them in only the most extreme circumstances, than you can breathe a sigh of relief.  Here is what the first term of each President has looked like from Reagan through Obama:

President  Challenge       Con    Rhet     Total
Reagan 51 34 106 140
BushI 246 118 105 223
Clinton 55 27 141 168
Bush II 713 86 23 109
Obama 78 10 21 37

Obama has issued very few signing statements in his first term in office.  From 2009-2012, Obama issued just 37 total signing statements, compared with 100+ from each of his predecessors. Interesting, the President who comes closest to Obama in total number of signing statements is his immediate predecessor, George W. Bush, who has been the most reviled where signing statements are concerned.

In Obama's final year of his presidency, he issued seven signing statements, and none that challenged any provision of law.  But before we break out the cigars, it is important to note that Obama issued the third most challenges, coming in behind George 43 and his father, George 41. So he may have not issued many signing statements, but he gets his money worth when he does.

It is hard to know whether these numbers are indeed completely accurate.  In one respect, the Daily Compilation of Presidential Documents have now been adding keywords to their entries, so signing statements now contain the label "bill signings".  In the other respect, according to a January 2010 NY Times report by Charlie Savage, the administration claimed it would not use  the signing statement to voice disagreements with law where disagreements have already been made, and may instead use the OLC to voice new disagreements--and OLC opinions are not always published.  So we are left wondering what these numbers really mean.

You would hope this would be an issue the Congress would take more seriously, and not just when it comes to partisan advantage.  Despite what some scholars think about congressional oversight of the signing statement, the fact of the matter is there is little to no evidence that Congress has a handle on how, why, and when the president uses the signing statement, burglar and fire alarms notwithstanding.

Thus I have taken advantage of the administration's "We the People" project to ask the administration to make the signing statement transparent, and allow a tracking mechanism similar to the executive order.  You can find the petition at: https://petitions.whitehouse.gov/petition/publish-each-and-every-refusal-enforce-laws-president-signs-his-bill-signing-statements/wdmSnGlg?utm_source=wh.gov&utm_medium=shorturl&utm_campaign=shorturl

Please take the time to sign my petition if you think this is an issue that warrants attention.

Monday, January 07, 2013

NDAA and Chuck Hagel

President Obama signed the National Defense Authorization Act for FY 2013, and typical with this particular bill, the signing was accompanied with a signing statement. For those who watch the signing statement, the NDAA is a much watch piece of legislation because it almost always sparks a signing statement.

There is a great deal to look over in Obama's signing statement--the one that received a great deal of attention was Obama's ongoing struggle with the Congress over the issue of enemy detainees--whether they can be transfered to a 3d party country or whether they can be tried in the U.S.--most importantly whether we can close down Gitmo.  This particular struggle has been in every one of the NDAA bills Obama has signed, and has warranted his response in each one.

I will save my commentary on the signing statement for another blog post, because it clearly violates Obama's memo on the signing statement issued back in 2009.

What I want to focus on is Section 533 of the bill, which ostensibly protects military clergy from doing anything that may violate their "sincerely held moral principles & religious beliefs." While it sounds like something to applaud--and in fact is redudant--there is an underlying reason for its appearance in this bill.  Section 533 is designed to insulate and protect from military punishment any clergy who refuses to counsel or marry military personnel who are homosexuals.

In Obama's signing statement, he writes that the "Secretary of Defense will ensure that the implementing regulations do not permit or condone discriminatory actions that compromise good order and discipline or otherwise violate military codes of conduct."  While Obama maintains he is committed to ending Dont Ask, Don't Tell, and to "protecting the rights of gay and lesbian service members," it should be asked whether his Secretary of Defense holds the same commitment in light of the Hagel's past views on homosexuality.

Sunday, January 01, 2012

Finally, the NDAA

President Obama has an interesting definition of transparency.  For claiming to be on the up and up, he has been awfully cagey when it comes to things he does not want the public or the press to know about. Just last week, on the Friday before Christmas, when everyone and their brother was heading out of town, Obama releases a signing statement to an omnibus spending bill that had at least 23 separate, constitutional challenges.  And this when his administration had been rattling the cage about his constitutional objections to the National Defense Authorization Act for FY2011.  Sort of like Three Card Monte.  Now on New Years Eve--in a move reminiscent of George W. Bush's signing statement to the "Department of Defense, Emergency Supplemental Appropriations..." bill that contained the ban against torture, which Bush released December 30, 2005, the Obama administration released the signing statement to the National Defense Authorization Act for FY 2012, hereafter NDAA.

A couple of interesting things up front.  First, unlike the previous signing statement, this signing statement has been filed under "Statements & Releases" and not "Presidential Memoranda."  A distinction with a difference.  Second, this was a difficult signing statement to take apart because in part he uses the language of a constitutional signing statement, but I don't think he is making constitutional challenges.  For instance, in one section, Obama doesn't exercise a constitutional challenge, but he makes clear that he may down the road.  For instance, in the paragraph dealing with implementation procedures, Obama writes "...I will exercise all of my constitutional authorities as Chief Executive and Commander in Chief if those procedures fall short, including but not lmited to seeking the revision or repeal of provisions should they prove to be unworkable." So it isn't a constitutional challenge more than a veiled threat. 

The third thing of interest--just minor--is that Obama uses his guidance to interpretation by relying upon the conference report that accompanied the legislation--Obama writes: "Going forward, consistent with congressional intent as detailed in the Conference Report, my Administration will interpret section 1024 as granting the Secretary of Defense broad discretion to determine what detainee statuts determinations in Afghanistan are subject to the requirements of this section."  I say this is interesting because Presidents make it a habit of objecting to be bound to any extraneous legislative matter that is not in the text of the law itself.  For instance, Congress will routinely define sections of a bill by the deliberations that took place on the floor of the House or the Senate, or in a report that came from one of the congressional committees. My sense in this case is that the White House objected to a provision of the bill, and to get it passed, the White House & the Congress came to an understanding in Conference that let the bill get sent to the White House and signed.  It isn't the first time the president has referenced a conference report in a signing statement, but it is interesting the contradiction.

Now on to what did get challenged!  I found at least 10 constitutional challenges in this signing statement--again, there may be more, but it was difficult to ascertain whether his "intent to construe" was really based on constitutional prerogatives or was instead guided by the room that Congress allows him to move?

First, as promised, the administration once again dinged two provision that tries to tie the administration's hands when it comes to handling detainees.  First, there is Gitmo.  The Congress has been adamant--as a political ploy--to make an issue out of trying Gitmo detainees in the US, despite the fact that the Bush administration did just that.  And in a swipe, Obama states in full rhetorical flourish:

For decades, Republican and Democratic administrations have successfully prosecuted hundreds of terrorists in Federal court.  Those prosecutions are a legitimate, effective, and powerful tool in our efforts to protect the Nation.  Removing that tool from the executive branch does not serve our national security.  Moreover, this intrusion would, under certain circumstances, violate constitutional separation of powers principles.

The other challenge was the restriction on allowing the executive branch to transfer detainees to a 3d party country.  Obama also dings this provision as a violation of separation of powers, and will "interpret them to avoid the constitutional conflict."

The rest of the challenges are related to Congressional meddling into foreign affairs, either the US relationship with Russia to the imposition of sanctions to Iran.  In each of the provisions, Obama argues they violate foreign affairs and diplomatic communications, as well as may impact national security secrets, and he will treat them each as non-binding.