Provisions of the Act, including sections 841, 846, 1079, and 1222, purport to impose requirements that could inhibit the President's ability to carry out his constitutional obligations to take care that the laws be faithfully executed, to protect national security, to supervise the executive branch, and to execute his authority as Commander in Chief. The executive branch shall construe such provisions in a manner consistent with the constitutional authority of the President.
The best we can say is that he challenged at least four provisions since he lists them. However, that sentence begins: "Provisions of the Act" and then includes the four provisions. It could very well mean that he has much more in mind, but is holding that close to his vest.
So, the sections themselves:
Section 841 creates a "Commission on Wartime Contracting" whose eight members are appointed by the House, the Senate, and the President, and requires that the Committee investigate private companies, such as Blackwater, who have contracts in Afghanistan and Iraq. This section gives the Commission the authority to obtain information from executive branch entities such as the Department of Defense, ordering that the "head of such department or agency shall furnish such information expeditiously to the Commission." You can imagine how the term "expeditiously" went over with such scrutinizers as David Addington.
It is my guess that President Bush's objections here involve the "supervision" of the executive branch, given that a Commission is formed with "hybrid" functions. This has long been a gripe of presidents--Commissions that allow appointments from other people than the president, who has the appointment power. In a 1989 OLC Opinion, William Barr, serving as the head of the Office of Legal Counsel, outlined "ten types of legislative encroachments into the prerogatives of the president." Number 1 was "Interference with the appointment power," where "Congress...seeks inroads into the president's prerogative of the appointment. Congress will set up commissions and give the commissioners executive power. The president must diligently use the signing statement to note that his appointees serve in an advisory or ceremonial fashion. Number 2--the creation of "Hybrid Commission" which involves "Congress creating commissions that contain members of the legislative and the executive branch, and often the numbers are tilted in favor of the Congress. (Barr, William P. "Common Legislative Encroachments on Executive Branch Constitutional Authority." 13 Op. O.L.C. 299, July 27, 1989.)" In the case of the Wartime Commission, Congress gets six appointees and the president gets two.
Section 846--The section, titled "Protections for Contractor Employees from Reprisal for Disclosure of Certain Information" gives protections to whistleblowers who come forward to:
- A Member of Congress
- A representative of a committee of Congress
- An Inspector General
- A GAO officer
- A DOD employee responsible for contract oversight or management
The administration has been consistent in battling provisions that encourage people to come forward and blow the whistle. In my paper, Rethinking Presidential Power: The Unitary Executive and the Bush Administration, I document the effort the administration made to destroy the whistleblower protection in the Sarbanes-Oxley law.
Section 1079--This section requires any executive branch intelligence organization to turn over "any existing intelligence assessment, report, estimate, or legal opinion" requested by or relating to the jurisdiction of the Armed Services Committees in the House and Senate. If the president does not wish to comply, this section mandates that "White House Counsel shall submit to Congress" the president's assertion of executive privilege, which would stipulate the reasons why the president wishes to protect information.
Section 1222--This final section challenged in President Bush's signing statement has drawn the most attention. This section, by far the shortest, is titled "Limitation on Availability of Funds for Certain Purposes Relating to Iraq." It has two statements: First, there is no funds that can go to establish any "military installation or base for the purpose of providing for the permanent stationing of United States Armed Forces in Iraq" and the second demands no funding "to exercise United States control of the oil resources of Iraq."
As Elana Schor at the "Guardian" notes, this particular challenge may become "as controversial as the (2005) signing statement sidestepping the torture ban." This particular section is part of an on-going debate between the Bush administration and the Democratic Congress on US presence in Iraq for the long term. In particular, the controversy is grounded in whether this agreement is a treaty or not. Last fall, the administration embarked on an agreement with the al-Maliki government in Iraq to protect the long-term interests (the "Declaration of Principles for a Long-Term Relationship of Cooperation and Friendship.") The Senate argues that this agreement should take the form of a treaty, which the Senate would get a say over the terms and in the end, whether it would be ratified. Yet the use of an executive agreement, which has been apart of Republic since birth and what Bush is attempting to do, has allowed the president to get around the treaty process by making agreements with foreign governments that work the same as a treaty, yet without the need to have the Senate ratify. It seems clear that President Bush's challenge of the provisions under the "Commander in Chief" authority cited in the signing statement.
There are some great things that have emerged as a result of the use of the signing statement. The greatest maybe the rapid response by the Congress. Several members spoke out against Bush's challenges on the floor of the chamber, and not just a flip statement in response to a reporters question (see here and here for examples).
I found it interesting that in President Bush's challenge, he claimed that the Congress violated his prerogative to "supervise the executive branch." This is a back down from previous challenges which claimed the prerogative to "supervise the unitary executive branch." That was a meaningful declaration of presidential power, and it seems to have disappeared.
Despite some of the over the top criticisms and other "analysis" of this signing statement, it is clear that the hubris from previous years is gone. The use of the signing statement, coupled with the challenges, are not there.
