A Tisket A Tasket

Interesting developments on the issue of the signing statement. President Obama's most recent signing statement, which I discuss here, rankled many in Congress for challenging the Congress's attempt to force the Treasury Secretary to take certain positions in international institutions such as the World Bank and the IMF. Obama wrote:

...provisions of this bill within sections 1110 to 1112 of title XI, and sections 1403 and 1404 of title XIV, would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with international organizations and foreign governments, or by requiring consultation with the Congress prior to such negotiations or discussions. I will not treat these provisions as limiting my ability to engage in foreign diplomacy or negotiations.

This is pretty run of the mill stuff. Presidents are very protective of their foreign policy prerogatives, and it is an area where you should always expect to see a challenge in the signing statement. As I also noted, President Obama did not issue a Statement of Administration Policy (SAP) communicating these problems ahead of time, which is normal and which also contradicts his directive of March that promised to communicate in advance any problems in legislation as it is winding its way through Congress. I assumed that he did this informally. Apparently I was wrong.

CQ reported today (sub. req.) that Representative Kay Granger (R. TX), who is the ranking Republican on a sub-committee of the Appropriations Committee, added an amendment to HR 3081, the "Department of State, Foreign Operations, and Related Programs Appropriations Act, 2010," that negates Obama's signing statement challenges. Granger added the language to insure" that the will of Congress was followed." Backing up the amendment is Barney Frank, who threw his support Granger's way. Frank, who knows something of a signing statement during his experience with the Immigration Reform and Control Act of 1986 said that if Obama made good on his challenges, "there would be no more funding for the IMF and World Bank."

The administration responded with a veto threat of its own. In the SAP to HR 3081, the administration argued it would not tolerate any language that conflicted with the "President's authority as Commander-in-Chief." They noted that the Granger amendment, similar to language in the recently signed Supplemental Appropriations Act and the Omnibus bill signed back in March, this language constrains the President's foreign policy prerogatives by "...directing Executive officials to adopt certain positions or objectives in negotiations and other dipomatic interactions."

There is something interesting about this particular SAP. In President Obama's signing statement to the Omnibus bill in March, he simply noted that the bill raised "constitutional concerns," and then pointed to those concerns as follows:

• Foreign Affairs. Certain provisions of the bill, in titles I and IV of Division B, title IV of Division E, and title VII of Division H, would unduly interfere with my constitutional authority in the area of foreign affairs by effectively directing the Executive on how to proceed or not proceed in negotiations or discussions with international organizations and foreign governments. I will not treat these provisions as limiting my ability to negotiate and enter into agreements with foreign nations.
• United Nations Peacekeeping Missions. Section 7050 in Division H prohibits the use of certain funds for the use of the Armed Forces in United Nations peacekeeping missions under the command or operational control of a foreign national unless my military advisers have recommended to me that such involvement is in the national interests of the United States. This provision raises constitutional concerns by constraining my choice of particular persons to perform specific command functions in military missions, by conditioning the exercise of my authority as Commander in Chief on the recommendations of subordinates within the military chain of command, and by constraining my diplomatic negotiating authority. Accordingly, I will apply this provision consistent with my constitutional authority and responsibilities.
• Executive Authority to Control Communications with the Congress. Sections 714(1) and 714(2) in Division D prohibit the use of appropriations to pay the salary of any Federal officer or employee who interferes with or prohibits certain communications between Federal employees and Members of Congress. I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees' communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.
• Legislative Aggrandizements (committee-approval requirements). Numerous provisions of the legislation purport to condition the authority of officers to spend or reallocate funds on the approval of congressional committees. These are impermissible forms of legislative aggrandizement in the execution of the laws other than by enactment of statutes. Therefore, although my Administration will notify the relevant committees before taking the specified actions, and will accord the recommendations of such committees all appropriate and serious consideration, spending decisions shall not be treated as dependent on the approval of congressional committees. Likewise, one other provision gives congressional committees the power to establish guidelines for funding costs associated with implementing security improvements to buildings. Executive officials shall treat such guidelines as advisory. Yet another provision requires the Secretary of the Treasury to accede to all requests of a Board of Trustees that contains congressional representatives. The Secretary shall treat such requests as nonbinding.
• Recommendations Clause Concerns. Several provisions of the Act (including sections 211 and 224(b) of title II of Division I, and section 713 in Division A), effectively purport to require me and other executive officers to submit budget requests to the Congress in particular forms. Because the Constitution gives the President the discretion to recommend only "such Measures as he shall judge necessary and expedient" (Article II, section 3 of the Constitution), the specified officers and I shall treat these directions as precatory.

Now, aside from the specific sections he lists, it is up to the researcher to figure out what the challenges are. For example, under the bullet point for "Legislative Aggrandizements," which he qualifies as "committee-approval requirements," all that he says is that there are "numerous provisions" that require the administration to notify Congress before they act on the legislation--something also known as a legislative veto. How numerous? I have just completed an in-depth scan of the bill, and I find over 100 provisions that require committee notification before action--not after action, but before. Most of those provisions (67) are found in Division H of the bill, which deals with foreign policy/international relations. Now the interesting thing in the SAP is that the administration is more specific about the problems of HR 1105:

Similarly, consistent with longstanding Executive Branch concerns about similar provisions, reflected recently in the President's statement in signing the Supplemental Appropriations Act, 2009, and the Omnibus Appropriations Act, 2009, language within sections 7026, 7030, 7054, 7069, 7070, 7081, and the International Monetary Fund Amendment...

If they can identify the very specific problems in the SAP after the fact, then why can't they be this specific when it comes to their challenges in the signing statement, as they originally promised?

So back to the tet a tet at hand. You may think that this is Republican posturing that probably won't go anywhere as the Democrats will defeat the amendment when it comes to the floor for a vote, thus protecting the man in the White House. I mean this was Republican behavior from 2001-2006, when President Bush did one thing after the next to diminish the authority of the Congress. Not so with the Democrats. In a 429-2 vote this evening (with 7 not voting), the House approved the Granger amendment (and Dennis Kucinich was one of the no votes). According to Representative Frank, the vote was "not just on behalf of (the Congress), but (also) on behalf of democracy."

Now it is on to the Senate, and then conference. It will be interesting to see whether this amendment makes it to the President's desk. Do the Democrats save Obama and remove the provision in conference, or does Obama make good on his veto threat and veto the bill (doubtful)?

I will say there is a promising sign out of the Congress regarding how it should deal with the signing statement. As I have noted elsewhere, Congress's high profile attempts to battle the use of the signing statement have been all style, no substance. To date, it has been about ordering the courts to ignore them, which is totally unworkable. But now they are thinking. Representative Frank and Representative Mark Kirk (R. TX) have offered another way:

(They) said that one way they could get presidents to stop issuing signing statements casting aside laws would be to refuse to fund their priorities.

Now you are talking. In the 1980s, when the Congress had enough with the Reagan administration's use of the signing statement, they simply cut off funding to the Department of Justice until the administration capitulated. It seems the Congress is finally paying attention to history!

Stay tuned as this legislation comes to a head in a couple of months.

More Signing Statements

I think I might be getting the hang of Obama's signing statements, to differentiate the purely rhetorical from the constitutional. But before this, let me go on record again with the observation that the administration seems to be deliberately frustrating attempts to keep track of how the constitutional signing statements are used. How so? First, on the frontpage of the White House website, down towards the bottom half of the page, you find "Featured Legislation." Let it be known that this is an incomplete accounting of the signing statements and it is often old news, placing signing statements days after they have been signed. For instance, the "Family Smoking Prevention and Tobacco Control Act," was signed last Monday, yet its placement on the White House webpage came at the end of the week. This signing statement, for those keeping track, is a rhetorical statement done in a very public format and announced in the Rose Garden at the White House. There, Obama takes the time to thank VIPs assembled at the Rose Garden as well as the work done by Congress to get the bill to his desk. For example, Obama states:

This legislation is a victory for bipartisanship, and it was passed overwhelmingly in both Houses of Congress. It's a victory for health care reform, as it will reduce some of the billions we spend on tobacco-related health care costs in this country. It's a law that will reduce the number of American children who pick up a cigarette and become adult smokers. And most importantly, it is a law that will save American lives and make Americans healthier.

(You catch the reference to health care reform??)

Now if you scroll down to the bottom of the page, you will find "Statements and Releases," which should contain all types of signing statements, and not just those that the administration wishes to showcase. Here is where I think I have "cracked the code." In the constitutional signing statements, thus far at least, the administration simply writes the bill number. In the case of President Obama's most recent signing statement (the 12th signing statement and the 5th to contain a constitutional challenge), it simply says "Statement from the President upon signing HR 2346". For those who have read media reports (i.e. here and here), they have been told that the challenges came to a war supplemental appropriations bill, thus searching those terms will leave the interested party confused. Only after clicking do you find that HR 2346 is indeed the "Supplemental Appropriations Act, 2009".

So when looking for Obama's signing statements, be diligent!

This signing statement, which is similar to those of his immediate predecessors, excluding Bush II, leaves the first several paragraphs to explaining what the bill consists of and the reasons for signing it, and leaves the challenges for the end of the signing statement. Thus comparing this statement to those of the Bush administration is not completely accurate, nor is it accurate for another reason, which I will address momentarily. But first, the challenge. President Obama writes:

...provisions of this bill within sections 1110 to 1112 of title XI, and sections 1403 and 1404 of title XIV, would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with international organizations and foreign governments, or by requiring consultation with the Congress prior to such negotiations or discussions. I will not treat these provisions as limiting my ability to engage in foreign diplomacy or negotiations.

Now recall that President Obama promised to be different from his predecessor (though he didn't specifically name him) when he issued his directive a couple of months ago outlining how he intended to use the signing statement. Specifically, Obama promised to (1) inform Congress beforehand about the "constitutional concerns" of any bill winding its way through the legislative process in order to "work together to address these concerns...thus minimizing the number of occasions on which" a signing statement would be used; (2) conclude that a provision is unconstitutional when issuing a signing statement, and if so, to exercise "caution and restraint" and to ground his conclusions on "interpretations of the Constitution that are well-founded"; (3) make sure that any challenge was clear and concise so that Congress, the courts, and whoever else would understand exactly why President Obama, and his legal advisers at the Justice Department, are making the challenge; and (4) to construe defective provisions of a bill in a way that is legitimate and "avoids a constitutional problem..."

On the first point--informing Congress ahead of time about constitutional deficiencies. In the Statement of Administration Policy for HR 2346, there is no mention about any of the problems the administration found in the bill. Now this does not necessarily mean that communication did not happen. It could have happened informally between congressional leadership and the administration--my friend who works inside Congress tells me that there is a great deal of informal communication--but given that the first point of his directive is a promise to communicate, it appears incumbent to put these concerns in a public document like a SAP.

The President does a better job than his predecessor in singling out one objection rather than lumping objections together, though he still does not get specific enough on what he is objecting to, thus placing the onus on outside parties to figure out whether something is or is not a problem. Obama stated his objections to "provisions of this bill within sections 1110 to 1112 of title XI, and sections 1403 and 1404 of title XIV..." If you look at these sections, you will find that they are divided into a number of sub-sections where not all fall into the problems he cited in his signing statement--that the Congress is attempting to direct foreign policy, either by explicitly telling his inferiors (in this case, the Secretary of the Treasury and a lesser extent US delegates to international financial institutions) what sorts of positions to take on international monetary matters or more generally international issues such as climate change or social/education policy within Third World countries. Thus if you scan the bill carefully, you find 15 specific challenges contained in Obama's challenge. Why can't the administration come out and single out specific provisions that are being challenged? If you read the signing statement without looking at the bill, you may conclude that Obama had five challenges, which is precisely what the administration wants us to think. Like all previous presidents, by being general in his challenges, it leads to an undercounting of challenges, thus suppressing the total number. And because it is a pain to sift through a bill and make a decision that one provision seems to fit while another doesn't, it makes sense why the President remains general. The problem is that he made a commitment to be transparent in his challenges, and so far hasn't been. Simply being different from his predecessor is not good enough.

Which brings me to the final point--his difference with the Bush administration. Obama is no different in going to great lengths to protect his foreign policy prerogatives--if you look back to all Presidents from Reagan forward, one of the top areas of challenge is in the area of foreign policy/defense policy issues. What is different for Obama is that he left reporting requirements unchallenged. In a couple of different sections, the Congress orders the Secretary of Treasury to make reports, due months or a year later, on how well objectives are being met, for instance. This reporting language is common, and the President often instructs his inferior to make the reports. The difference with his immediate predecessor is that Obama didn't object. President Bush often inserted language that objected to such language as a violation of the "unitary executive." The objection being (1) the president controls information inside the executive branch and (2) only the president can instruct inferior executive officers on what they may or may not share. For instance, when President Bush signed the "Intelligence Authorization Act for FY 2005" back in December 2004, he argued: "The executive branch shall construe provisions in the Act...that mandate submission of information to the Congress, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to withhold information that could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties..." Obama let them slip without objection.

So Obama continues to use the signing statement in a more traditional manner, yet continues to fall short on the promises he made to make them more transparent.

Material from June 06 Hearing on the Signing Statement

Back in June 2006, the Senate Judiciary Hearing held a one day hearing on the Bush administration's use of the presidential signing statement. The hearing was spurred in large part from Charlie Savage's April 30 Boston Globe article on the signing statement--the article that put the signing statement--at least for this generation--on the map.

The Senate Judiciary Committee has just released its report on that hearing, and for those who have followed this closely, there is nothing new in the official transcript of that days events. What is interesting is the responses from Michelle Boardman, an OLC attorney who testified that day, to written questions after the hearing ended. There some interesting things I have found in reading her responses. For instance, the members asked her about Bush's constant use of the term "unitary executive" in his signing statement, and whether that was an indication that he was using the signing statement to enhance executive power overall, which would be different from previous presidents. In her response, she notes that previous presidents also pointed to the unitary executive in their signing statement--in particular Reagan and Bush I. Reagan and Bush I did make mention of the unitary executive, but only a handful of occasions. By the second year of Bush's first term, every one of his constitutional signing statements carried the qualified "unitary executive" which was often left open-ended, suggesting that it was not just to "supervise the unitary executive branch," as Ms. Boardman implies in her written responses. This is also important because she suggests to the Senate Judiciary Committee without any challenge from them that the unitary executive only means that the president has the right to control the behavior of those who work from them--control their communications with each other and with anyone outside the executive branch. That is just one peg of the theory. It also believes that the "Vestings" clause gives to the president ALL executive power inside and outside the Constitution and via the "Oath" clause it commands the president to reject anything that contradicts HIS reading of the Constitution. Boardman's dimunitive interpretation mirrored that of Justice Alito when he was asked what the term meant to him during his confirmation hearings in January 2006 (shameless plug: I have a co-edited volume on the unitary executive due out later this year from Texas A&M University Press).

I am continuing to scan through the report, and if you are interested in the subject, I encourage you do the same!

Some Things Never Change

John Elwood, a refugee from the Bush OLC, has joined the Meta-Blog The Volokh Conspiracy as a blogger. Elwood was the second person the Bush White House sent to testify in defense of their use of the signing statement when he came to the House Judiciary Committee in January 2007 to testify before newly minted chair, John Conyers.

The Bush administration often used the argument that the criticism regarding their use of the signing statements was something drudged up by political opponents and not a fair criticism--the basis was a quantitative assessment of Bush signing statements--how could it be a problem if Bush had issued fewer signing statements than any president before, including his immediate predecessor, Bill Clinton? In fact, this criticism was also leveled at those who testified before either the House or Senate Judiciary Committee. While technically it is right, in substance it is wrong.

I bring all this up because Elwood has blogged about Obama's recent signing statement of the Ronald Reagan Centennial Commission Act, and one of his points of criticism stems from this quantitative misread.

Elwood, like me, has found it interesting that Obama referred to a predecessor's signing statement in defense of his own, and it seems as if he feels slighted that Obama reached to the Reagan administration to find a challenge to they hybrid commissions created by Congress. Elwood notes that in 2001, Bush challenged a Commission that was established to prepare for the 50th anniversary celebrations of Brown v Board of Education that took place three years later. It is clear that Obama reached to the Reagan administration because this was a challenge to a Commission established to honor Reagan. He could have easily found a challenge in Bush I and Clinton's presidency, but that would have not been rhetorically symmetrical nor have the impact that the one he chose.

Elwood also takes notice to Obama's statement that he notified Congress of his constitutional objection. He writes:

Confirming that such notice was given in the signing statement itself seems prudent as a matter of congressional relations, but it is more a matter of style than substance. Although there have certainly been exceptions, administrations of both parties (including the Bush Administration) have routinely advised Congress of their constitutional objections through informal contacts and formal bill comment letters. The Obama Administration has now taken an additional step to "paper the record" by noting that fact at the time of the signing statement.

A couple of things here. First, there seems to be a great deal of communication with the Congress when a challenge is made. As my colleague Bryan Marshall has found while serving as an APSA Congressional Fellow, as part of the long term negotiations between the president and the Congress to get a bill passed, when there is a sticking point, the administration and the Congress often comes to an agreement to allow the sticking point to proceed so long as Congress signs off on a formal challenge by the president. Thus the signing statement is a safety valve that allows both sides to save face when backing away from a veto challenge. Second, if we wanted to get really technical, we should applaud Obama for abiding by a law the Bush administration refused to acknowledge. In the 2002 DoJ appropriations bill, Senator Patrick Leahy added language requiring the administration formally inform the Congress whenever it used the signing statement to challenge the constitutionality of a provision of law (see Section 530D to the 21st Century Department of Justice Appropriations Authorization Act). Third, in Obama's formal memorandum on using the signing statement, issued March 9 just ahead of his first constitutional signing statement, he promised, in principle #1, that he would "...take appropriate and timely steps...to inform the Congress of its constitutional concerns about pending legislation."

The point where Elwood cannot shake old habits is here. Elwood writes:

For those of you keeping score at home, based on the listing of signing statements on coherentbabble.com (which includes both constitutional signing statements and uncontroversial rhetorical or laudatory signing statements), President Obama has issued more constitutional signing statements than President Bush had at this point in his presidency (by my count, four versus one).

A point of clarification here. All legislation is not created equally. If you look at the first signed pieces of legislation during 2001, much of it is ceremonial, such as dedicating buildings and roads or appointing individuals to ceremonial commissions. In fact, it is unusual for constitutional challenges to come during the first half of the year. Most do not start until August, when the Congress begins to fire appropriations bills at the president. Clearly Obama has been given more substantive legislation early on because of the state of domestic and foreign policy. These are not usual times. If Obama wished to get technical, he could counter that he followed the lead of his predecessor and waited until March to make his first challenge. Obama's first challenge came on March 11, 2009 and Bush II first challenge came on March 20, 2001. But that is technical and really meaningless in the long run. Just like making quantitative comparisons between presidents is meaningless in the long run.

What does matter, and what we all should watch or want to know going forward are the following things: First, will Obama and limit the number of challenges, or will he follow Bush's lead and challenge everything, no matter how insignificant? Second, will Obama stick to his promise of both grounding the challenges into some constitutional priniciple AND will be concise regarding what is being challenged? So far he has shown himself to be sensitive to the Bush administration strategy of being vague about the specific challenges. And third, will Obama revert to precedent and leave the challenges to the OLC? What got the Bush administration into trouble is that the process was distorted by the Office of the Vice President, and in particular David Addington, who was allowed to review any bill for constitutional infractions without the input, or knowledge, of the OLC.

If Elwood was serious about his criticisms, he would leave the Bush administration behind and help his readers understand what really is at issue with the use of the signing statement.

Did You See What I Saw?

(Did I say that the White House website is a muddled mess?)

Did you see the signing ceremony yesterday on the news? This is the one with Nancy Reagan and a bill signed commemorating Reagan's 100th birthday next February? There was a lot of attention dedicated to the signing--Nancy Reagan was brought up on stage with President Obama, and President Obama made these remarks before signing the bill into law:

Well, thank you all for coming to the White House today as we commemorate the life and work of a President in the presence of those who loved him, and knew him, and respected him deeply as both a leader and as a man.

And in particular, I want to thank our special guest here today, Nancy Reagan, our former First Lady, who redefined that role in her time at the White House -- and who has, in the many years since, taken on a new role, as an advocate on behalf of treatments that hold the promise of improving and saving lives. And I should just add, she has been extraordinarily gracious to both me and Michelle during our transition here and I'm thankful for that.

There are few who are not moved by the love that Ms. Reagan felt for her husband -- and fewer still who are not inspired by how this love led her to take up the twin causes of stem cell research and Alzheimer's research. In saying a long goodbye, Nancy Reagan became a voice on behalf of millions of families experiencing the depleting, aching reality of Alzheimer's disease.

This bill, which creates a commission to carry out all the celebrations this year in honor of President Reagan's 100th birthday next year. The only thing President Obama said about the commission was it was created by an "overwhelming bipartisan majority in the House of Representatives, and passed unanimously in the Senate..."

Today's news captured just those things, as well as a few controversies to string along. For instance, this story in "Politico" rehashes a number of minor squabbles between Obama and Nancy Reagan, starting with Obama's crack at the outset of his administration about Nancy Reagan's seances, a crack he quickly apologized for. Next is Nancy Reagan's charge in an "Vanity Fair" interview that she was not invited to the White House back in March when Obama lifted the Bush ban on stem cell research.

And if this isn't bad enough, Obama is getting criticized for taking a swipe at Jimmy Carter. In Obama's signing ceremony, he said this about Reagan:

President Reagan helped as much as any President to restore a sense of optimism in our country, a spirit that transcended politics -- that transcended even the most heated arguments of the day. It was this optimism that allowed leaders like the President and Speaker Tip O'Neill, who held sharply different philosophies, to sit down together at the end of difficult debates as friends, and to work with one another on complex and contentious issues like Social Security. It was this optimism that the American people sorely needed during a difficult period -- a period of economic and global challenges that tested us in unprecedented ways.

In these perilous times, President Reagan had the ability to communicate directly and movingly to the American people; to understand both the hardships they felt in their lives and the hopes that they had for their country. That was powerful, that was important, and we are better off for the extraordinary leadership that he showed.

Ken Rudin, NPR's "Political Junkie," titles his article in response: OBAMA TRASHES JIMMY CARTER! If this sounds familiar, it is not too different from a typical "NY Post" headline that might read: OBAMA TO CARTER: YOU TRAMP!

It seems that some--though no one connected with Jimmy Carter--sees this as a slam by Obama because he is comparing optimism and idealism with the drudgery of the Carter years--when in fact, this characterization is right on. Carter's people--if you have read what they have said about their time in office--admit to completely misunderstanding the power of rhetoric in favor of "plain speaking." Plain speaking, while possible in the 19th century, was not possible in the era of electronic mass media of the late 20th century, and certainly not in the 21st. The Carter folks understood too late that image control is a big responsibility of the Office of the Presidency, and the Reagan folks learned from it.

It seems clear to me Obama has a special place for Reagan--if you recall, his admiration of Reagan was a point of controversy during the 2008 Primary. Back on January 2008, Obama said this in an interview with a Nevada newspaper:

I think Ronald Reagan changed the trajectory of America in a way that, you know, Richard Nixon did not, and in a way that Bill Clinton did not. He put us on a fundamentally different path, because the country was ready for it. I think they felt like, you know, with all the excesses of the '60s and the '70s, you know, government had grown and grown, but there wasn't much sense of accountability in terms of how it was operating, and I think people just tapped into — he tapped into what people were already feeling, which is we want clarity, we want optimism, we want a return to that sense of dynamism, and, and, you know, entrepreneurship that had been missing.

Now, in spite of all this rhetoric and controversy, did you catch Obama's challenge to a provision of the bill? Did you hear of this either in his remarks or in the news coverage that followed? Probably not.

While Obama was making his public remarks about the bill, he was also issuing a private statement that would carry a constitutional challenge to a provision of the bill. And he would make his challenge to the Reagan Centennial Commission by borrowing a Reagan signing statement challenge to a similar commission. Obama writes:

The bill provides that the Commission will be composed of the Secretary of the Interior, four individuals whom I will appoint after considering the recommendations of the Board of Trustees of the Ronald Reagan Foundation, and six members of Congress appointed by the congressional leadership. I wholeheartedly welcome the participation of members of Congress in the activities of the Commission. In accord with President Reagan's Signing Statement made upon signing similar commemorative legislation in 1983, I understand, and my Administration has so advised the Congress, that the members of Congress "will be able to participate only in ceremonial or advisory functions of [such a] Commission, and not in matters involving the administration of the act" in light of the separation of powers and the Appointments and Ineligibility Clauses of the Constitution (Public Papers of the President, Ronald Reagan, Vol. II, 1983, page 1390).

In Section 4(a), it lists the appointment process to the Commission, and in Section 4(a)(2), it allows the Board of Trustees of the Ronald Reagan Foundation to appoint four members (out of a total of 11 members), while in Section 4(a)(3-6) it allows for various members of the congressional leadership, on both sides, to appoint a total of 6 of 11, with the Secretary of Interior getting the final appointment. Specifically, Obama is objecting to the six members that Congress gets to appoint, though he could also add the four that the Foundation Trustees get in there as well. What he is objecting to is the constitutional stipulation that only the president may appoint individuals who will exercise executive power. Thus Obama stipulates that since these members cannot possibly exercise executive power, their participation will largely advisory and ceremonial. By constitutional signing statement standards, this is fairly rudimentary. What is interesting is that Obama asserted the authority to challenge based on precedent--and a precedent established by Reagan himself.

Obama refers to the Reagan signing statement to legislation establishing a Commission to commemorate the Constitution's bicentennial, passed September 29, 1983. In that signing statement, Reagan wrote:

I welcome the participation of the Chief Justice, the President pro tempore of the Senate, and the Speaker of the House of Representatives in the activities of the Commission. However, because of the constitutional impediments contained in the doctrine of the separation of powers, I understand that they will be able to participate only in ceremonial or advisory functions of the Commission, and not in matters involving the administration of the act. Also, in view of the incompatibility clause of the Constitution, any Member of Congress appointed by me pursuant to section 4(a)(1) of this act may serve only in a cermonial or advisory capacity.

It would be interesting to know who came up with the ideal of finding a similar Reagan statement to back this up, since presidents rarely cite signing statements of their predecessors to justify, in part, why they are taking the action they take. Thus there had to be some discussion of this before it made its way into the Obama statement.

By my counting, this is Obama's fourth constitutional signing statement out of a total of 10 statements to date with dozens of challenges thus far. But despite that, it represents one original challenge rarely seen in the annals of the signing statement. And given its unusual wording, I am surprised it received so little coverage (like zippo coverage).

Another Frustrating Obama Signing Statement

President Obama has issued two signing statements today, one nothing more than a rhetorical statement and a second statement packed with a constitutional challenge. First, a bit of context.

The presidential signing statement can come in one of two forms--a public signing statement verbally issued during a formal signing ceremony--the one where the president is flanked by important people who are given a pen once the president has finished. The second form is a private signing statement that is in written form only. Furthermore, the signing statement can be classified either as a rhetorical signing statement, largely designed to garner press and public attention, or as a constitutional signing statement, where the president either challenges the constitutionality of a provision or provisions of the bill or interprets a provision or provisions that is/are vague. Often times, a constitutional signing statement will be accompanied with a public statement, as I will demonstrate below. Regardless of who the president is, this combination does not change: in the public statement, there is no mention of the constitutional defects or the imprecise language. It is clear when this tandem is in effect, the president is attempting to direct the attention of the press, public, and the Congress away from the challenge.

Now President Obama. Remember that candidate Obama never claimed he would eschew the use of the constitutional signing statement. That was John McCain. Despite this, conservatives (whether it be Fox News or Republicans in Congress) try to make the case that President Obama is reneging on a campaign promise. Rather, Obama, like Hillary Clinton, used vague terminology to prepare for the day when they would make their own challenges. Both claimed that they would use the signing statement in the way it was used pre-George W. Bush. No one ever got either Obama or Clinton to get more precise than that, leaving it to all of us to discern what this means. Since Obama won the presidency, he issued a declarative memo outlining his policy on the signing statement. Of merit, Obama made the following promises:

1) He would inform the Congress about his concerns regarding the constitutionality of a provision or provisions of a bill as it is making its way through the legislative process. This should bring down the number of challenges in a signing statement.
2) When he does make a challenge, he will rely upon "well-founded" constitutional principles with which to ground it.
3) To insure "transparency and accountability," he will identify specifically which provisions are troublesome and specifically what part of the Constitution is being violated.
4) He will make a constitutional correction only for legitimate problems.

These are all jabs taken at the Bush administration--President Bush got to the point where it was not clear what part of the bill was defective, what specific constitutional provision was violated, and many of the challenges were little more than a policy difference with the Congress.

So with this, I move to the discussion of Obama's most recent signing statements. While Obama has moved to underscore "transparency and accountability" in nearly everything he does, it is my opinion that he still has a long way to go. Case in point is the signing statement. The administration has used the White House webpage to play a sort of sleight of hand with the device, keeping the focus on the rhetorical signing statement while obscuring the constitutional signing statement.

For example, the White House website today (May 20) highlights the two bills President Obama signed--First with a picture showing applauding members of Congress surrounding Obama in an action photo, second in a blog posting that underscores and amplifies the President's remarks and then third is a transcript of his remarks.



Now the problems. If you were interested in the signing statement but were not versed in the subterfuge with which an administration will go to hide what they don't want seen, you may be wondering how I could have arrived at the conclusion that one is a constitutional signing statement. That is because if you click on the link under the heading "Signed Legislation," you will be taken to the White House blog posting of the signing ceremony. OK, fine. Within the blog posting is a link to the President's actual remarks, which you diligently click. After clicking, you arrive at President Obama's official remarks, and you notice that President Obama combined two bills into one statement. One bill, the "Helping Families Save Their Homes Act" and the second, the "Fraud Enforcement and Recovery Act of 2009," or FERA 09 for short. And reading through both of these statements, you can find nothing that would resemble a challenge, let alone anything that could be regarded as critical. In fact, the transcript includes the parts where their were applauses (Applause) and laughter (Laughter). For instance, when Obama delivered a real zinger, you get this:

And because of that plan, all of you shoud know that interest rates are down, refinancings are up, and Americans who participate can save up to $2,000 a year--in effect, a $2,000 pay cut per family--tax cut-- excuse me. They don't need pay cuts. (Laughter.) That would be a good bill. (Laughter.)

So you conclude that I must be some kind of partisan hack seeking to bring down the Obama administration.

If you go back to the White House webpage frontpage, and scroll down to the bottom, in the place where the text is smaller and crowded with a lot of information. There under the heading "THE BRIEFING ROOM," on the far left side, down five links is a link titled OFFICIAL STATEMENTS. If you click that, you will find the link under 5/20/2009 titled STATEMENT BY THE PRESIDENT ON S.386. Now of course you would have to know what S. 386 is to know that it applies to an actual signing statement. It does not say "Statement by the President on the signing of S.386," so you may falsely believe that it is a Statement of Administration Policy, or SAP, about a bill making its way through the Congress. In this case, however, S. 386 is the constitutional signing statement for FERA 09. This is the one contains the constitutional challenge.

The second paragraph of this signing statement reads:

Section 5(d) of the Act requires every department, agency, bureau, board, commission, office, independent establishment, or instrumentality of the United States to furnish to the Financial Crisis Inquiry Commission, a legislative entity, any information related to any Commission inquiry. As my Administration communicated to the Congress during the legislative process, the executive branch will construe this subsection of the bill not to abrogate any constitutional privilege.

Now if you switch back to his formal remarks, with respect to the the Financial Crisis Inquiry Commission, it reads:

And finally, it creates a bipartisan Financial Markets Commission to investigate the financial practices that brought us to this point, so that we make sure a crisis like this never happens again.

"Where's the beef?" as Walter Mondale once asked of President Reagan during the 1984 campaign.

Now, what is the Financial Crisis Inquiry Commission? According to the Congressional Research Service, this Commission is established to "examine the causes of the current U.S. financial and economic crisis, taking into account fraud and abuse in the financial sector and other specified factors. Requires the Commission to submit a report on its findings to the President and Congress on December 15, 2010. Requires the Commission chairperson to appear before specified congressional committees within 120 days after the submission of the report."

According to the "New York Times," the Commission was created "in the wake of public outrage over corporate executive bonuses and other compensation for employees at firms receiving federal bailouts." In essence, it is a body created in the same fabric as the 9/11 Commission. The 10 members consist of six Democrats and four Republicans.

In Obama's challenge, he notes that he communicated his "concerns" to the Congress as the bill was being packaged, yet the vehicle by which those concerns were voiced remain a mystery to me. In most cases, when the administration finds a defect as a bill is winding its way through the Congress, it issues a SAP. For instance, in this SAP by the Bush administration to HR 2989 back in 2003, at the bottom the administration outlines it's constitutional concerns to a provision that contains an unconstitutional legislative veto. Yet in the SAP to S. 386, no mention of the Commission. In fact, there is no mention of any problem in the SAP, just Obama's enthusiastic support.

So the question is two-fold: By what vehicle did he register his concern AND to whom did the concern go? Because it seems that one member of Congress did not get the Obama message. In this story in "The Hill," Representative Darrell Issa, a Republican from California, and characterized as "the main Republican supporter of the Commission," seems to be taken aback at the challenge:

“Why is a president who talked so much about transparency now threatening to back away from it? If critical information is withheld from the inquiry on the financial crisis, its conclusions won’t have the credibility of the 9/11 Commission report,” Issa said in a statement to The Hill.

As to the challenge itself, President Obama seems to have broken his promise to be specific. He claims that the provision is construed so as not to "abrogate any constitutional privilege." What? Does he mean executive privilege? Does he mean, more broadly, the privilege that protects Executive Branch communication? Or the appointment of executive branch officers? Or separation of powers? I am totally confused because he is not specific regarding the nature of his objection. Sure, give him total props for telling us what the infraction is, but a big thumbs down for being fuzzy on what constitutional principles have been violated.

And finally, on the question of transparency, I have to raise, once again, an objection to the way in which the webpage is designed to frustrate, rather than assist, attempts at tracking the use of the signing statement. Say what you will about the Bush administration and its use of the signing statement. One thing you cannot criticize them for was the simple manner by which you could track the issuance of a signing statement. This has not been the case with President Obama. The website is clunky and cluttered. That aside, it is also designed to keep too many eyes from monitoring its actions. How else can you explain the glitzy pictures and headline pointing us to the signing of a bill versus the tiny, and compressed statements, coupled with arcane wordings, that actually direct us to the more private, written signing statement? Certainly Obama is not the first to play this game, but when you promise openness and transparency only to provide more of the same, you are going to get a heap of criticism. Deservedly so.

That is all I am saying.

Is The Constitution Obsolete?

That is the title of a two day conference held at Baruch College and the City University of New York. While the titles of the various panels may not seem to strike at the heart of constitutional revisionism, the panelists (OK, save Larry Sabato, who probably paid someone to jump on board) are all first rate.

If you are in the area, the conference is free and open to the public.