Zone of Twilight

Finally, the NDAA

2012-01-01T21:29:00.001-05:00

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.

The Candidates on Executive Power

2011-12-30T23:26:00.002-05:00

Back in 2008, The Boston Globe ran a series of questions by the candidates for the nomination for the presidency, seeking their views on executive power. Now this time around, it is The New York Times that is prodding and poking the candidates to determine their views on executive power (to be sure, everyone should take these responses with a grain of salt given that Obama's responses are often at odds with his actions as president). In 2008, the responses by the candidates may have been tempered a bit by the overreach of then President George W. Bush. But that was then, and this is now.

The Republican nominees (save Rick Santorum and Michelle Bachmann) have returned their responses to the questions, which has covered the gambit from executive branch secrecy to interrogation to signing statements. And all, with the exception of Paul, have offered fairly beefy views of executive power, in line with the views of the Bush administration. Seems that four years is sufficient time to forget Bush's views on executive power and damage they did to the Republican brand.

I am interested in the subject of signing statements because it is my interest. There are a couple of interesting responses that I wish I was able to follow up in a candid discussion with the candidate himself. First, without any surprise, Ron Paul does not believe in signing statements. It would be interesting to determine what Ron Paul does believe in. I assume he believes in a strict construction of the Constitution, but the Constitution was not written to be strictly construed.

The remainder of the candidates had varying views of the signing statements. The governors had some of the more interesting views, which made me wonder if their understanding of the signing statement was influenced by what they have been told about the signing statement, or rather how they used the signing statement when they were governors? I believe some of the understanding comes from their experiences as governors.

First up in Huntsman. Former Governor of Utah, his answers sound like they were informed from advisers and journal articles, and not so much from experience. How so? Huntsman writes that signing statements are "a well-established tool for making clear the president's interpretation of a bill's terms" and that they serve a variety of purposes--transparency and to help judges interpret the law, similar to what Congress does in the legislative history of bills. You can get this from the law journals. First, the signing statement has rarely ever promoted transparency, including Obama's use of the signing statement. And second, we do not have any evidence that the signing statement makes any difference to judicial interpretation--in all likelihood, Huntsman was fed this line from former AG Meese's justification back in 1986 when announcing the use of the signing statement. Meese wrote:

To make sure that the President's own understanding of what's in a bill is the same...or is given consideration at the time of statutory construction later on by a court, we have now arranged...the presidential signing statement on the signing of a bill will accompany the legislative history from Congress so that all can be available to the court for future construction of what the statute really means.

This sounds a lot like what Huntsman wrote.

Perry's response sounds like it is informed from practice, though I am sure he got help from his staff. He explains that "Signing statements are not new and have been a part of the bill signing process throughout history" though I am sure the NYT question did not ask about the history of the signing statement, and I am sure Perry couldn't tell you just how long that history goes back. He did claim the signing statement was appropriate, though where the "objectionable aspects of the bill are collateral, relatively minor and can be addressed by the appropriate assertion of power by the President." This sounds a lot like Obama's defense of the signing statement back in 2009, when his administration released a memo defending the use of the signing statement.

Last up is Romney, another former Governor, who I am sure found the need for maximum unilateral action as the governor of a blue state. Romney's defense of the signing statement is full throated: he defends its use by noting that former presidents have used them to fulfill "the constitutional obligation to take care that the laws--which include the Constitution--are faithfully executed." For my money, I would have given him a gold star if he would have defended the signing statement based also on the oath clause of Article 2, and not just the take care clause, but props nonetheless. Romney also declares that he would use the signing statement to "set forth my understanding of ambiguous legal provisions or to protect presidential prerogatives established by the Constitution." Again, probably much of the declaration was informed by his advisers, but I am sure that Romney is familiar with the value of a signing statement to executive management.

And last there is Gingrich. Charlie Savage, writing in today's New York Times states that Gingrich "would not issue such statements." I am not sure that is precisely what Gingrich means. When asked, "Under what circumstances, if any, would you sign a bill into law but also issue a signing statement reserving a constitutional right to bypass the law?", Gingrich answers "None. I would not sign a bill into law that contained a provision or provisions I believed to be unconstitutional." But he doesn't stop there. He takes time chastising Congress for sending the President "...very complex but poorly written pieces of legislation", a practice, by the way, that took place when he was Speaker. But he continues with that: he condemns Congress for sending complex and poorly written pieces that "...may make it necessary for the President to issue a statement upon signing the legislation that provides guidance for how the legislation will be executed." That sounds very different from "None." In that part of his statement, it seems that Gingrich is saying that as president, he will not issue a signing statement so long as the Congress sends him legislation that does not require that a signing statement be used. Am I wrong here? It almost sounds to me like Gingrich is saying he will not use the signing statement to strike out provisions he believes are unconstitutional--for that, I presume he will veto it. But it does sound to me like Gingrich will use the signing statement to set the understanding of how various provisions should be interpreted, again I presume, even if it contradicts the wishes of the Congress.

Obama's Latest

2011-12-24T22:38:00.001-05:00

The Obama administration has been hyping all week a potential signing statement to the National Defense Authorization Act of 2012. TPM reports on the 21st, in a question to a reporter from the Wall Street Journal, that Obama planned a signing statement to the National Defense Authorization Act's "controversial provisions"--in particular, a ban on trying Gitmo detainees here in the US and sending enemy detainees to 3d party countries. This is a recurrent theme between the Congress and the administration, similar to the back and forth over the White House "Czars". Last January, Congress sent the White House the "Ike Skelton National Defense Authorization Act for FY 2011", and the President issued a signing statement objecting to Sections 1032 & 1033--the Gitmo provision and the 3d Party country ban. In that signing statement, the President simply objected to the provisions but didn't officially challenge them. In the present case, the administration seems to be ratcheting up the volume by having the attorney general announce the challenge. But I digress.

While all the attention has been on the forthcoming challenge, the administration issued a signing statement to H.R. 2055, the "Consolidated Appropriations Act, 2012." The signing statement has at least 23 separate and distinct challenges, ranging from separation of powers concerns to foreign policy prerogatives to "Take Care" protections--it is a sweeping statement to a massive piece of legislation. I say that it has at least 23 challenges because the actual number is uncertain. Remember that Obama came into office never refusing to use the signing statement, but promising when he used it he would be transparent--we would know what precisely was being challenged, what constitutional provision it violated, and Congress would be informed whenever possible. In the latter days of the Bush administration, the objections became so vague that it was difficult to understand what challenges were at issue. Now it seems that this is the case with the current Obama administration. For example, Obama writes: "...several provisions in this bill, including section 627 of Division C and section 512 of Division D...". So he lists two of the provisions but not the other ones. Or later he writes "Numerous provisions of this bill purport to condition the authority of executive branch officials to spend or reallocate funds on the approval of congressional committees." He lists a couple of examples, but not enough to account for "numerous".

The signing statement also formally took on Congress's attempt at banning the trial of Gitmo detainees on US soil as well as sending detainees to 3d party countries. Obama writes that both of these provisions (Section 8119 of Division A for Gitmo and Section 8120 of Division A for the transfer) "violate separation of powers principles" and he intends on interpreting "them in a manner that avoids constitutional conflicts" while working with the Congress for their repeal. The same language also appears in the National Defense Authorization Act, FY 2011, and thus we should see a similar signing statement with identical language contained in the current statement. It also begs the question of why the focus on the latter statement, when he made the challenge in the former?

One final interesting thing to note about this signing statement that I cannot believe is a oversight or a mistake (generally nothing is cleared for publication in the White House without a serious vetting). As I have noted before, the administration has deliberately gone out of its way to make finding these signing statements difficult, something even the previous Bush administration did not do. First, they got rid of the Weekly Compilation of Presidential Documents, long the clearinghouse for presidential signing statements (and the documents I spent hours pouring over when I did my dissertation work). They said they were switching to the Daily Compilation of Presidential Documents, but then for the longest time they did not update the information past 2009. Even now it is only updated through October 20, 2011. Second, they have made a mess of the White House website. In the Bush administration, all one needed to do was to go to the "News" site to find the signing statements, but no more. The Obama administration has a place for "Signed Legislation" and a place for "Statements & Releases", and sometimes you can find signing statements at one and sometimes at the other. But what is clear is that there is no one place to go and find them. Now for the thing that struck me as interesting. In the recent iterations of signing statements, they were categorized under "Statements & Releases." The most current signing statement--and the one I refer to here--is categorized as Presidential Memoranda. I say this because signing statements are not Memoranda. Memoranda has its own classification similar to an executive order. I ran this by Lou Fisher today, and he agreed with me that a signing statement is a different beast. It may be that the administration is beginning the work on nudging the signing statement over the line into legal relevancy. Whatever the case, it merits closer attention to future signing statements.

The Signing Statement and the Courts

2011-11-06T20:51:00.001-05:00

Tomorrow, Monday November 7, 2011 is the day those of us who follow the signing statement have been waiting for, because this is the day the Supreme Court will hear oral arguments in the decision M.B.Z. v Clinton (Docket No. 10-699).

This case involves the American parents of a child born in Jerusalem who wanted their child's birth certificate to declare the place of birth "Jerusalem, Israel." When Congress passed the Foreign Relations Authorization Act for FY 2003, the directed the Secretary of State to add "Israel" to the birth certificates of American citizens born in the Holy City. Up to this time, it was the policy position of the U.S. to stay neutral as to the ownership of the City--Congress decided to change that policy in a law signed by President George W. Bush.

When President George W. Bush signed the law, he issued 21 separate and distinct challenges to numerous provisions, including two challenges (Sections 325 & 687) that grounded in the Due Process Clause of the 5th Amendment!

In this particular case, Bush objected to Section 214 of the Law, which is Congress ordering the Secretary of State to add "Israel" to the birth certificate and passports of children born in Jerusalem. Bush wrote:

Section 214, concerning Jerusalem, impermissibly interferes with the President's constitutional authority to conduct the Nation's foreign affairs and to supervise the unitary executive branch. Moreover, the purported direction in section 214 would, if construed as mandatory rather than advisory, impermissibly interfere with the President's constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states. U.S. policy regarding Jerusalem has not changed.

M.B.Z. was born in 2002 in Jerusalem to American parents, and his parents requested that the Israel designation be added to his passport, which the Secretary of State refused to do. The lower courts rejected their claim under the "Political Questions" Doctrine--that is the question at hand was better suited for the President and the Congress, not the courts. In a surprising reversal, the Supreme Cour agreed to hear the case tomorrow.

The two questions at issue: First, the Political Questions issue of whether the Courts are competent to hear this claim and Second, whether the President's foreign policy prerogatives prevent Congress from legislating U.S. Foreign Policy.

Given how settled the Political Questions Doctrine seems to be, it seems to me that Congress will direct its attention toward the struggle over foreign policy prerogatives, as well as take the opportunity to address the constitutionality of a presidential signing statement. If the Supreme Court decides to address the signing statement, it will be the first time the Supreme Court has take on the issue head on. Also interesting is that this Supreme Court is made up of a number of justices who themselves worked in the Justice Department, and some who were instrumental in developing the signing statement into a potent presidential weapon.

Either way, this is a sleeper decision which means it has not gotten much media attention, but it clearly should. For a lucid overview of the case, check out Neil Kinkopf's panel discussion to the American Constitution Society.

The House Strikes Back

2011-06-16T22:47:00.000-04:00

The Financial Services and General Government Subcommittee of the House of Representatives Appropriations Committee reported their appropriations bill funding most of government for FY 2012 yesterday. The bill itself renews a battle the Congress had in April of this year when it sent the continuing appropriations bill for the DOD to President Obama, which he signed and then challenged in a signing statement. The signing statement seems to be something the Republicans in Congress are beside themselves in presidential usage, which would be funny if it weren't so sad.

In the continuing appropriations bill, the Congress attempted to shut down Obama's "Czars" overseeing Health Care reform, Climate Change, the President's Task Force on the Auto Industry and Manufacturing Policy, and the White House Director of Urban Affairs. President Obama, in his signing statement, challenged this section as interfering with the president's prerogative to obtain advice from his subordinates, despite the fact that not one person is filling these positions. In the current piece of legislation--H.R. 1--the House Subcommittee has put the shut down back in the game. In Section 632 of the bill, the Subcommittee states: "None of the funds made available by this Act or any other Act may be used to pay the salaries and expenses" of those positions. Thus far the White House hasn't issued a challenge via a "Statement of Administration Policy (SAP)", but expect one at some point. The positions continue to remain vacant, so one would wonder what the big deal is--why so much energy is being spent trying to kill, or save, these positions. I am sure the arguments on both sides are couched in constitutional language, but in reality this fight is completely political. The congressional Republicans want to campaign on killing health reform, climate change, etc. and the President wants to deny them the opportunity, and campaign on saving health reform, climate change, etc.

And the Subcommittee has taken up the issue of the signing statement in H.R. 1. In Section 203, they write:

None of the funds made available by this Act may be used to pay the salaries and expenses of any officer or employee of the Executive Office of the President to prepare, sign, or approve statements abrogating legislation passed by the House of Representatives and the Senate and signed by the President.

It is another attempt in a line of attempts by the Congress to make it look like they are really doing something about the signing statement, but really aren't. The President has the right to obtain advice from inferiors within the Executive Branch. The Founders put these folks in the Constitution to do just that. While I am sure Obama will challenge this provision (should it make it out of reconciliation), I am sure the Courts would also disagree with the provision, should someone have standing to bring the case before it. The Congress has the power to challenge the signing statement already within its grasp--provisions like this are designed to aid Members on the campaign trail as "standing up to Obama."

The bill also contains another provision that is likely to be challenged by Obama only because it already has been challenged. Section 713 of the bill protects whistleblowers--a popular provision on the Hill, and one championed by Senator Obama. But funny thing happens on the way to the White House. A change in institution changes your perspective completely.

In Obama's first year in office, he signed an omnibus spending bill that contained whistleblower protections added by Senator Charles Grassley, a long time champion of the protection. In that signing, he challenged the provision for "detracting from his authority to direct the heads of executive departments to supervise, control, and correct employees' communications with Congress..." Obama is not the first person to challenge whistleblower protections. President George W. Bush did ju jitsu to a provision in the "Sarbanes-Oxley" bill where he was able to construe whistleblower protections in the financial sector to pertain to apply on when Congress is investigating an issue. While it may seem like a stupid thing for a president to obstruct, from the White House's point of view, they want to know about any communications with anyone from inside the Executive Branch to anyone outside the Executive Branch. Given the highly partisan nature of American politics, the White House wants to protect against partisans in the Congress or media luring partisans inside the Executive Branch out in an attempt to divulge information that would be politically embarrassing to the President. And given the nature of our politics, it is easy to see that scenario unfolding.

There is another interesting provision in the bill. Like all Federal appropriations bills, it contains a number of provisions against Federal money being used for purposes of propaganda. In Bush's second term, there arose a constitutional conflict between the Congress--specifically the GAO--and the White House--specifically the OLC--over the production and distribution of video news releases--prepackaged news stories released to local television stations that contain a partisan slant, all without the audience being aware that the story is a hit job. In H.R. 1, not only are there multiple prohibitions against using money for propaganda purposes, but also Section 734:

Unless otherwise authorized by existing law, none of the funds provided in this Act or any other Act may be used by an executive branch agency to produce any prepackaged news story intended for broadcast or distribution in the United States, unless the story includes a clear notification within the text or audio of the prepackaged news story that the prepackaged news story was prepared or funded by that executive branch agency.

So what are the other provisions against propaganda designed to prevent?

For all the excitement generated over the use of the signing statement, Congresses prohibition got very little play, which is probably unexpected. Maybe when the president uses the signing statement to nullify the ban on using the signing statement will it get the press attention the Republicans hoped, which is probably expected.

Supreme Court and the Signing Statement

2011-05-06T20:52:00.002-04:00

The Christian Science Monitor has reported an interesting separation of powers battle between the president and the Congress over who sets the foreign policy for the US, and it includes the possibility for the Supreme Court to speak directly on the legitimacy of the presidential signing statement, something the Court has rarely done.

The case at hand involves an American couple whose child was born in Jerusalem in 2002. American foreign policy has long kept us from taking sides in the dispute between Israel and Arab claims for Jerusalem, which has meant that an American born in the city has a birth certificate that simply records "Jerusalem" as the place of birth. This particular American couple, however, wanted the birth certificate to read "Jerusalem, Israel." When they went to the State Department to ask that the birth certificate reflect both the city and country of origin, the State Department balked. So the couple took their case to the Congress, which added a provision to the "Foreign Relations Authorization Act, FY 2003."

Specifically, Section 214--"United States Policy with Respect to Jerusalem as the Capital of Israel" subsection (d) reads: "Record of Place of Birth as Israel for Passport Purposes: For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jersalem, the Secretary shall, upon the request of the citizen or the citizen's legal guardian, record the place of birth as Israel."

But not so fast. The President has long asserted sole prerogative over foreign policy matters, with some blessing by the Supreme Court. Furthermore, there is a long lineage of challenges in presidential signing statements to attempts by the Congress to interfere with the president's power over foreign policy and national security. Furthermore, attempts by the Congress to recognize Jerusalem as part of Israel have consistently been challenged by presidents dating to President Clinton.

In this particular case, President Bush issued 21 separate challenges to the bill. And just to give you a sense of the difference between Bush and Obama with respect to the signing statement, here is a small taste:

The executive branch shall also construe provisions in the Act that mandate submission of information to the Congress or the public, such as sections 204, 215, 603, 613(b), 615 and 1602, in a manner consistent with the President's constitutional authority to withhold information the disclosure of which could impair the foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties. The Secretary of State will, of course, continue as a matter of comity to keep the Congress appropriately informed of the Nation's foreign affairs activities.

So there you have challenges both implicit and explicit, which as you can see makes it difficult to figure out all the things that are actually being challenged.

With respect to this issue, President Bush challenged Section 214 this way:

Section 214, concerning Jerusalem, impermissibly interferes with the President's constitutional authority to conduct the Nation's foreign affairs and to supervise the unitary executive branch. Moreover, the purported direction in section 214 would, if construed as mandatory rather than advisory, impermissibliy interfere with the President's constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states. U.S. policy regarding Jerusalem has not changed.

It will be interesting how the Supreme Court rules on this decision--the intent of Congress and the letter of the law or, like they did in the legislative veto case, a long history of presidential objection to congressional action that violated separation of powers.

Much Ado....

2011-04-17T15:36:00.000-04:00

I am amused at the response to President Obama's signing statement to HR 11473--the bill that funded the government (and the DoD) through the remainder of the year. There are two responses out in the ether--the first, which has been typical to Obama signing statements, is that this violates his campaign promise not to use the signing statement "as an end run" around Congress. The second is that Obama is protecting "Czars" in his statement. Neither are true.

First, Obama makes three objections to the bill--and given the size of this bill, and all the things needed to cobble it together, three objections is not bad.

The first two objections--to Sections 1112 and 1113--involve tying the administration's hands in prosecuting detainees held at Gitmo. The fact that many of these individuals have been held for years without the chance of trial violates every ideal in which this country stands for, and is shameful. Section 1112 bars the use of funds "for the remainder of 2011" to bring Gitmo detainees to trial in the U.S. Section 1113 bars the administration from handing the detainees to another country for trial or prosecution unless certain conditions are met--apparently the fear is that transferring the detainees to another country (with less rigorous judicial proceedings than ours) will mean they get off completely free and return to the battlefield to fight Americans another day.

Now here is what the administration says it will do regarding these two provisions:

Despite my continued strong objection to these provisions, I have signed this Act because of the importance of avoiding a lapse in appropriations for the Federal Government, including our military activities, for the remainder of fiscal year 2011. Nevertheless, my Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.

Contrast this with a typical Bush signing statement. For instance, in the "Intelligence Authorization Act for FY 2003, Bush wrote:

The executive branch shall implement sections 325, 334, and 826 of the Act, and section 8H(g)(1)(A) of the Inspector General Act of 1978 as enacted by section 825 of the Act, relating to submission of recommendations to the Congress, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch.

There--nothing about working with Congress or nothing about mitigating their effect. All you have is a dismissal of the provision because it violates the constitutional ideal of the unitary executive branch. Given how Obama's first sentence is that he will work with Congress to repeal the provisions contradicts any notion of an "end run" around Congress, as suggested by Obama's critics, typified here and here.

The third challenge--to Section 2262--is drawn criticism in that it is Obama's attempt to protect "Czars." Section 2262 denies funds to pay for: 1) the Director of the White House Office of Health Reform, 2) Assistant to the President for Energy and Climate Change, 3) Senior Advisor to the Secretary of the Treasury assigned to the Presidential Task Force on the Auto Industry and Senior Counselor for Manufacturing Policy, and 4) White House Director of Urban Affairs. As James Risen notes in today's New York Times, "[A]ll of the positions affected by the budget bill are vacant or have been eliminated, and it is not clear whether the White House wanted to fill any of them."

But in Obama's signing statement, this section did draw the fiercest challenge:

Section 2262 of the Act would prohibit the use of funds for several positions that involve providing advice directly to the President. The President has well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority. The President also has the prerogative to obtain advice that will assist him in carrying out his constitutional responsibilities, and do so not only from executive branch officials and employees outside the White House, but also from advisers within it.
Legislative efforts that significantly impede the President's ability to exercise his supervisory and coordinating authorities or to obtain the views of the appropriate senior advisers violate the separation of powers by undermining the President's ability to exercise his constitutional responsibilities and take care that the laws be faithfully executed. Therefore, the executive branch will construe section 2262 not to abrogate these Presidential prerogatives.

As my friend Lou Fisher noted in an email today, it is ludicrous for Obama to make such a claim as the Executive Office of the President and all who staff it are created and funded by Congress. There is no "prerogative" in the Constitution protecting such advisers. But while there might not be language officially declaring a constitutional prerogative, there is enough political precedent that might. This area of protecting the "supervisory and deliberative" processes is one of the most often cited challenges in presidential signing statements. Congress has made numerous offerings to try and cut off who the president seeks advice from, and have rarely been successful. There is the recognition that dates to FDR that the president should be allowed unfettered advice without congressional interference, and there is the consistent defense that would make a judicial challenge by the Congress tenuous at best.

It is clear that this provision is all about politics--Members can go back to their districts and proclaim their success at ending the attempts by Obama at burdening the taxpayer with "Obamacare", climate change, and the "bailout" of automakers, even though this provision will do absolutely nothing of the sort.

The News Dump as Signing Statement

2011-01-07T18:50:00.000-05:00

There has been a flurry of activity regarding President Obama's displeasure with the military authorization bill for 2011 that was presented to him less than a month ago. Titled the "Ike Skelton National Defense Authorization Act for FY 2011," the bill provided much needed funding to our troops who are currently fighting two wars. When Congress has something that valuable in its hands, it cannot resist the temptation to load it down with items that are meant to politically "box in" the president. For example, just over 15 years ago the Republicans in Congress took advantage of a similar bill to force HIV-positive military personnel out of the armed forces. This was added just as Clinton was gearing up for his re-election, and it was meant to force him to make a hard choice between keeping our military strong vs. caving into an important political constituency (the homosexual lobby).

In the current bill, three sections were added that limit Obama's handling of individuals held at Gitmo (1032-1034). Section 1032 prohibits the use of funds to try detainees, especially Khalid Sheikh Mohammed, in the United States. The section notes that the prohibition seems to apply only to those "held on or after January 20, 2009..." Wonder why that date and not all held since the start of the Global War on Terror? Section 1033 requires the administration to obtain the blessing of Congress before it transfers any prisoner at Gitmo to any foreign country or entity, and Section 1034 prohibits the use of funds to build prisons in the US to house those individuals detained at Gitmo.

It is clear that the provisions are aimed at denying Obama a promise made on the campaign trail in 2008--to close down the Gitmo facility. Are the Republicans in Congress really saying that the prisons in the United States are inadequate to detain violent individuals?

These provisions are certainly the kind of triggers that lead to a constitutional challenge in a signing statement. The Obama administration issued a "trial balloon" leak earlier this week to test the reaction to a constitutional signing statement. On January 4, the investigative reporting organization Pro Publica reported that the administration had "disclosed" that they were considering a signing statement to challenge the bill's objectionable provisions. That set off a flurry of media activity reporting on whether a signing statement would or would not come. All week long everyone waiting (well I certainly have been), and lo and behold on Friday afternoon (a Friday News Dump) the administration finally put all the waiting to rest with a signing statement to the bill.

In the "Statement by the President on H.R. 6523," President Obama dispensed with the formalities found in most signing statements (taking time to describe what the bill does) and went right to the objectionable provisions. Obama writes:

Section 1032 bars the use of funds authorized to be appropriated by this Act for fiscal year 2011 to transfer Guantanamo detainees into the United States, and section 1033 bars the use of certain funds to transfer detainees to the custody or effective control of foreign countries unless specified conditions are met. Section 1032 represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests. The prosecution of terrorists in Federal court is a powerful tool in our efforts to protect the Nation and must be among the options available to us. Any attempt to deprive the executive branch of that tool undermines our Nation's counterterrorism efforts and has the potential to harm our national security.

With respect to section 1033, the restrictions on the transfer of detainees to the custody or effective control of foreign countries interfere with the authority of the executive branch to make important and consequential foreign policy and national security determinations regarding whether and under what circumstances such transfers should occur in the context of an ongoing armed conflict. We must have the ability to act swiftly and to have broad flexibility in conducting our negotiations with foreign countries. The executive branch has sought and obtained from countries that are prospective recipients of Guantanamo detainees assurances that they will take or have taken measures reasonably designed to be effective in preventing, or ensuring against, returned detainees taking action to threaten the United States or engage in terrorist activities. Consistent with existing statutes, the executive branch has kept the Congress informed about these assurances and notified the Congress prior to transfers. Requiring the executive branch to certify to additional conditions would hinder the conduct of delicate negotiations with foreign countries and therefore the effort to conclude detainee transfers in accord with our national security.

Now the language clearly is not as aggressive as what we should expect in a constitutional challenge. Normally the president would write that he was "construing" the provisions in a way that negates their constitutional problems. But despite the tame language, we should not fool ourselves into believing that the president was not challenging the defective provisions.

How do we know? Well in the last paragraph, Obama writes that not only will he work with the Congress to repeal the defective provisions, but will also "seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future." The key is "mitigate". That should be taken as a challenge--mitigate can mean using other funds to carry out transfers or trials, it can mean a lawsuit to challenge the provisions which the administration won't defend, and it can mean (though probably unlikely in this case) a refusal to enforce. It certainly merits watching the administration closely to see how it makes its next move.

There is also one more thing to note about this constitutional signing statement. And that involves the administration's continuing attempts to obscure the challenge. Given the attention paid to what the president would do with this bill, one would think that the signing statement would appear under the "Featured Legislation" section of the White House webpage. As of this moment (1/7/11 @ 6:45 p.m.) the "featured legislation" is a bill the President signed on Tuesday. If you go ahead and click the "Featured Legislation" link, it lists the bill by its formal name, but clicking on it takes you to the text of the bill itself. Instead, if you scroll down to the bottom of the webpage, under "Statements & Releases," the very first link is the constitutional signing statement, though the link reads: "Statement by the President on H.R. 6523," and not by its formal name, the "Ike Skelton National Defense Authorization Act for Fiscal Year 2011." It continues to leave me scratching my head that the administration separates the constitutional signing statement from the "Featured Legislation" section of the webpage. Say what you will about the previous administration, at least they kept all their signing statements in one place.

Obama's Latest Signing Statement

2010-10-08T23:10:00.002-04:00

It is too bad that Chad Pergram does not look past his own newsroom for his discussion on Obama's purported pocket veto, for if he did, he would have quoted Professor Robert Spitzer, whose work on the pocket veto, and the "protective return" pocket veto would have given life to this wiki style description of this unusual form of the veto. Actually, instead of reading Pergram's analysis, why not go directly to Spitzer's recent analysis at the Huffington Post?

While I was looking to see whether the administration was attempting the protective return, which they did last year and this time, I came across the president's first constitutional signing statement in a long while. President Obama, in signing the "Intelligence Authorization Act for Fiscal Year 2010," issued an interesting challenge--and seemingly broke from his pledge last year to stop issuing public constitutional challenges.

Obama issued two challenges of interest. And both are consistent with the trend among recent presidents--including Bush II--to attempt to control information and the actions of inferiors.

The first challenge is a recent trend to limit who in Congress gets briefed on sensitive information. As Jake Tapper details, the Speaker of the House has been pushing for "robust oversight," which involves letting as many members of Congress know what the administration is doing in the area of intelligence--in particular things like covert operations, "Black Prisons," etc. Right now, the deal is for the President to inform the "Gang of Eight"--Eight congresspersons from the House and Senate leadership and intelligence committees--and Pelosi wanted to undo it. Apparently, when Obama threatened a veto of the intelligence authorization bill, Pelosi backed down and a deal was worked out to allow Congress "a general description" in exchange for "recognizing the President's authority to protect sensitive national security information." The kicker is in the last sentence--and thus the challenge: "...my Administration understands section 331s requirement to provide to the intelligence committees 'the legal basis' under which certain intelligence activities and covert actions are being or were conducted as not requiring disclosure of any privileged advice or information or disclosure of information in any particular form. (emphasis and underline added)" First, you suppose that was Congress's understanding? Second, nothing like being specific: "...disclosure of information in any particular form"!

What did get overlooked is the second challenge--and an interesting challenge at that. The second challenge involves whistleblower protections for those in the intelligence communities. Last year, Obama got into trouble for repeating a Bush tactic in trying to prevent any whistleblower protections at all. In a signing statement to an omnibus spending bill in March, 2009, Obama challenged a provision (that was a rider) that refused pay of anyone in the Executive Branch who attempted to prevent a government whistleblower from coming forward. In his signing statement, Obama said that the provision would not "detract from his authority to direct the heads of executive departments to supervise, control, and correct employees' communications with Congress." This infuriated Members like Senator Charles Grassley (R. IA), who has been committed to whistleblower protection. He, and Senator Patrick Leahy (D. VT) went after the Bush administration when it tried to kill the whistleblower protection they built into Sarbanes-Oxley. They declared victory, only after continually pursuing the administration for nearly a year (and it appears that even though the administration claimed to capitulate, in reality they didn't--they just pretended, hoping that Grassley and Leahy would move on--see my 2005 conference paper on the Bush action.)

In the Intelligence bill, Obama argues that his "understanding" of the whistleblower provision first does not include information deemed privileged or confidential (which is interesting given that whistleblowers are not usually known to disclose information that is public). And second, Obama obscures the challenge by simply citing a similar Clinton-era challenge:

Moreover, the whistleblower protection provisions in section 405 are properly viewed as consistent with President Clinton's stated understanding of a provision with substantially similar language in the Intelligence Authorization Act for FY 1999.

As I have stated earlier, if Obama was serious about being more transparent with his signing statements, then he would state the reason for the challenge or the interpretation in his signing statement, and not make a general reference to an interpretation in a previous administration. First, he is not clear about what part is similar, and second, he assumes that the typical person won't go looking for the Clinton signing statement to look it up and be sure that his interpretation is on the level. Or he is counting on the fact that most journalists--taxed for time or interest--won't go looking themselves. And given the fact that no other journalist seems to mention the whistleblower challenge leaves me to believe this is the case, though equally as plausible is the unusual protective return pocket veto at the same time the signing statement is issued, playing on the media's need for things that are unusual.

In Clinton's challenge, he wrote:

Finally, I am satisfied that this Act contains an acceptable whistleblower protection provision, free of the constitutional infirmities evident in the Senate-passed version of this legislation. The Act does not constrain my constitutional authority to review and, if appropriate, control disclosure of certain classified information to the Congress. I note that the Act's legislative history makes clear that the Congress, although disagreeing with the executive branch regarding the operative constitutional principles, does not intend to foreclose the exercise of my constitutional authority in this area.

This is a generous view of what really happened in Clinton's case. According to Thomas Newcomb ("In from the Cold: The Intelligence Community Whistleblower Protection Act of 1998." 53 Administrative Law Review. 1235. 2001), the Congress--and in particular the Senate, did not concede that the president had a constitutional right to impede whistleblowers, in part by relying upon testimony from my friend, Lou Fisher, then at the Congressional Research Service, who argued that the Congress, as much as the President, had the constitutional right to regulate national security information. In the end, the stipulation that the president had to get out of the way with communications between folks inside the intelligence services and Congress was excised in conference committee without recognition of the existence of a constitutional prerogative of the presidency.

So it begs the question just what Obama's view of the whistleblower protections are in light of his challenge from last March 2009 and the very vague nature by which he made his current challenge? What is clear is that Obama's use of the signing statement is every bit of a mystery as was his predecessor's use.

The Signing Statement, Terminator-Style

2010-10-02T11:44:00.001-04:00

Since George W. Bush made the signing statement popular, more and more state governors have begun to take advantage of heightened press attention to the device to attract additional press attention on their own. Case in point is Governor Schwarzenegger's signing of a California bill decriminalizing possession of an ounce of pot or less. In what is considered a rhetorical signing statement, Schwarzenegger signs the bill and then attaches not just his reasons for signing, but also his own political view about a larger issue.

To make sure that Republicans and conservatives did not think the Governor had lost his mind and decided to move from Sacramento to Haight-Ashbury, he explained that the only reason he agreed to the measure was to help the cash strapped State. Schwarzenegger wrote:

...I am signing this measure because possession of less than an ounce of marijuana is an infraction in everything but name. The only difference is that because it is a misdemeanor, a criminal defendant is entitled to a jury trial and a defense attorney. In this time of drastic budget cuts, prosecutors, defense attorneys, law enforcement, and the courts cannot affort to expend limited resources prosecuting a crime that carries the same punishment as a traffic ticket.

In terms of framing, the Governor has framed this issue in terms of the budget cuts and not in terms of individual rights, thus selling it to the GOP as an act toward saving taxpayer money.

But wait, there's more. The Governor also connects this signing with a larger issue, Proposition 19, which "would legalize the growth, possession and distribution of marijuana in California." He wrote: "I am opposed to decriminalizing the possession and recreational use of marijuana and oppose Proposition 19, which is on the November ballot. Unfortunately, Proposition 19 is a deeply flawed measure that, if passed, will adversely impact California's businesses without bringing in the tax revenues to the state promised by its proponents."

So Schwarzenegger uses the issue of decriminalization to lure press attention to his signing statement, that simultaneously insulates his signature of the bill (defense of the state treasury) while also stating his opposition to measure on the ballot in November. This seems to have worked, as his actions, and statement, captured the attention of the national press, both print and broadcast.

Kagan and Presidential Power

2010-06-28T14:00:00.002-04:00

The Kagan nomination hearings have begun and while much of the media attention has focused on the politics of the hearings (while acknowledging that her confirmation is a foregone conclusion)--her stance on banning military recruitment while at Harvard or her comments regarding what a farce these hearings are in the first place--and very little on her views about presidential power. In fact, for Democrats--who got so agitated over the issue of presidential power in the Bush administration, they really should be concerned about Kagan's views on the issue of separation of powers and presidential influence of the regulatory process because she will join Alito, Scalia, Robert, and Thomas as a fifth justice in favor of a powerful, unitary executive. How do we know this?

In fact, her views are clearly laid out in her 2001 Harvard Law Review article, "Presidential Administration." The problem is legal scholars, members of the press, members of Congress, and analysts for the Congressional Research Service do not see her views for what they are--Unitarian. The last one is particularly troubling since it is supposed to clarify issues for Congress in the not for public consumption reports it issues on behalf of congresspersons.

The Congressional Research Service issues reports to members of Congress--at taxpayers expense--but will not make them available to the public. Fortunately groups like the Federation of American Scientists archive these reports and make them available for free to anyone with Internet access. In this particular report, CRS analyst Todd Tatelman takes on the issue of presidential power and Kagan's views a la "Presidential Administration." In the end, he confuses and misinforms.

First, and I may be a bit biased in this account, he does not refer to any work by a political scientist when he discusses either presidential power theories or the unitary executive theory in particular. Second, his overview of the unitary executive theory isn't right, which largely comes from a failure to review the literature on the unitary executive. And finally, he accepted at face value Kagan's thesis that the Clinton administration's approach to rulemaking was anti-unitarian.

First, because he does not consult political scientists--and since he himself is trained as a legal scholar--he doesn't have any ideal on the major theories of presidential power. In fact, he reduces--much the way Kagan did--presidential power theories into three camps--the "traditionalists," the "unitarians," and then Kagan's "administration." The traditionalists are nothing more than Howard Taft's "Stewardship" theory of power, where the president is left to carrying out the specific powers granted to him by Article II and nothing more. This theory was influential among academics through much of the 20th century. But its influence came to an end in 1960, with the publication of Presidential Power. Neustadt's theory, which still dominates the thinking of presidency scholars in political science and history, argued that the constitutional powers are not as important as what the individual brings to the office. There, the presidency succeeds and fails on the shoulders of the man behind the desk. His credibility, his reputation, his ability to influence others to do what he wants to get done is how the presidency works. Those needing persuading include the Congress, the press, interest groups, the American public, foreign leaders--everyone and anyone. Thus this view of power, to no surprise, places the president at the center of the political system. Ask any individual in America today who the most important political leader is, and they will tell you it is the president. The media certainly believe it in the sheer volume of coverage devoted to the man and the institution. The flaw in the theory, of course, is its focus on the individual in the Oval Office and not to the institution, that gets built by the contributions of those who came before.

So in Tatelman's introductory discussion of theories of power, he overlooks the "Grand Canyon" simply because he didn't know it was there.

Second, he fails to provide an accurate description of the tenets of the unitary executive theory--something that also likely happened because of his failure to adequately review the literature. As Tatelman argues, unitarians "ascribe to a view of presidential authority that has three prongs: First, unitarians often argue that the President has a constitutionally based duty to provide policy direction to officers of the United States; second, unitarians claim that the President possesses the unfettered power to remove from office any officer who does not comply with the President's policy directive; and finally, unitarians generally assert that Congress cannot constitutionally assign executive powers to agencies or other entities that are independent or outside the scope of the President's control."

OK, to the layperson, this may seem obtuse, but if you read it carefully, you may be scratching your head that each of the three prongs were pretty much the same. How can a paradigm of presidential power not differentiate its tenets? If he would have looked at my dissertation, for instance, he would have found my distillation of the three tenets of the theory taken from a review of the literature from legal scholars who built it in the late 1980s and early 1990s. As I argued, the three tenets are as follows: First, the president has the prerogative to remove subordinate officials without interference from Congress. While Congress (specifically the Senate) may have a say in who gets confirmed, they do not get to interfere in who gets fired. In fact, the only potential check on this first tenet comes from the politics of the moment and the president's standing with the public. For example, from a constitutional standpoint, President Bush was in his right to fire the federal prosecutors after the 2004 election. The politics of the moment, however, made the firing a disaster to his ability to govern, and in the end reduced the President's standing with the public and with members of his own Party. Second, the president--along with the vice-president--is the only elected individuals in the Executive Branch. As such, they are politically accountable for the decisions made by the bureaucrats. Thus unitarians believe that it is the president's prerogative to control the execution of discretionary decision making. Since the Constitution "vests" to the president the "executive power," it is his--and not a bureaucrats--right to a final say. The vesting clause is also something I wish to address below, because Tatelman completely missed the point of its importance to unitarians. And finally, third, the "Oath clause" of the Constitution commands the president to protect and defend not just his Office but also the Constitution of the United States. This means he is bound by oath to refuse enforcement of anything he believes is unconstitutional. In Tatelman's discussion of the important clauses of Article II to unitarians, he mentions the "Vesting" clause and the "Take Care" clause, but not the "Oath" clause. Now of course the Constitution gives the president weapons like the veto to do just this, but because the Constitution vests all the executive power to the president, it means that he is afforded tools not specifically mentioned by the Constitution--tools such as the signing statement. The signing statement gives the president the option to "save" an important piece of legislation by refusing defense or enforcement of a provision that violates the Constitution. Take my favorite example--FDR is given an important military spending bill during WWII, but the bill contains a provision that places guilt upon employees of the State Department--a so-called "bill of attainder." Since it is an important spending bill, FDR is boxed into a difficult position--does he veto it and perhaps place the free World in jeopardy, or does he enforce it but hold off on the provision throwing the State Department employees in jail? He did the latter, and the Supreme Court stood by him.

The unitarians place a great deal of importance on three clauses of Article II, as mentioned above. The "Oath" clause, which I just discussed. Second is the "Take Care" clause, which requires the president to "take care that the laws are faithfully executed." This is important because it gives the president the constitutional authority to oversee the manner in which any executive officer executes the law--including those we call the "Independents"--members of the independent regulatory agencies and commissions such as the FCC or the SEC. And then finally there is the "Vesting" clause. Tatelman, as noted above, totally misreads why unitarians think this clause--which can be found in each of the first three Articles of the Constitution--is so important. He writes that the clause is "best read and most properly understood to be a general grant of power to the President. Focusing on the language "shall be vested," unitarians believe that this construction, identical to the construction used to grant judicial power to Article III courts, creates a single and exclusive executive actor, namely, the President. (emphasis mine)" But they are not identical, which is why unitarians find it so important. If you look to the "Vesting" clause of Article I, it says that the "legislative power herein granted shall be vested in a Congress..." In Article III, it says that the "judicial power shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." Now in Article II is simply says that the "executive power shall be vested in a President of the United States." See the difference? In Article I, it limits the legislative power to those provisions laid out specifically and deliberately in Article I. In Article III, it dilutes the judicial power by dividing it between the Supreme Court and the inferior courts created by the Congress. But the president has ALL the executive power, which for unitarians means those powers specified in Article II and those executive powers outside, including those called "prerogative powers." Had Tatelman done a careful reading of the literature on the unitary executive, this point would have hit him like a heavy object. But since he missed it so badly, at least for me, it threw the rest of the analysis into doubt, and for good reason.

Finally, there is his reading of Kagan's thesis and his willingness to believe that she articulates a theory distinct from the unitary executive theory. Tatelman believes Kagan that Clinton exercised a different kind of influence over the bureaucracy than his Republican predecessors, which makes him un-unitarian.

In my dissertation, I walk the reader through the institutionalization of presidential influence over rulemaking that started with the Reagan administration and continued through the Clinton administration, and how it tied to the unitary executive theory. I will summarize that here and explain where Tatelman's analysis falters. The Reagan administration used two important executive orders (12,291 and 12,468) to gain influence over the bureaucracy by centralizing rulemaking oversight inside the OMB (the eyes and ears of the White House inside the bureaucracy) and by forcing agencies to submit their yearly regulatory agendas for (tacit) approval or disapproval by the White House. The Bush I administration continued with this process by empowering the vice president with a central role in controlling regulations. It was the intent of the Reagan and Bush I administrations to control the bureaucracy in an effort to throttle regulations that were deemed harmful to business or other important constituencies. Thus there influence was a negative influence. When the Clinton administration came to office, its rhetoric was about transparency in the regulatory process, but in practice it continued with its predecessors in exercising a high degree of influence within the bureaucracy. Clinton issued Executive Order 12, 866, which simply combined the Reagan orders and added, as a bonus, the requirement that the independent regulatory agencies and commissions submit their yearly regulatory agendas to the OMB (actually, to OIRA within OMB). Clinton did this while the Democrats controlled the Congress, so there was little to no reaction to the new order. When the Democrats lost control of the Congress in 1994, Clinton used the bureaucracy to "end-run" the Congress--to get things done administratively that he could not get done legislatively. This prompted the famous Begala quote, "Stroke of the Pen, Law of the Land. Kinda Cool." Kagan wrote of this authority: "When Congress delegates discretionary authority to an agency official, because that official is a subordinate of the President, it is so granting discretionary authority (unless otherwise specified) to the President." This is ripped right from the pages of unitarians--the president of the US has the authority to check the actions of bureaucrats as the top political person in the Executive Branch. Just because the president seeks to exercise positive influence over the bureaucracy, as Clinton did, does not make him different from his Republican, unitarian predecessors. The difference is one of degree, and not kind.

Thus to conclude, as I sit and watch the Senators with their opening remarks, I have heard no concern with the nominees views on presidential power. This was front and center just four years ago when the Senate Judiciary Committee considered the nomination of judge Samuel Alito, and it should be front and center today with nominee Elena Kagan.

Document Dump!

2010-06-04T17:51:00.000-04:00

For those who want to peek behind the curtain of the White House--to see how decisions get made--then there is no better time than when a President releases records from his administration. Five years ago the Reagan Library released the Alito memos, which detailed the strategy to create the signing statement, among other things.

Now that President Obama has nominated Solicitor General Elena Kagan to take over the Supreme Court seat vacated by retiring Justice Stevens, and since Kagan previously worked as a domestic policy adviser in the Clinton administration, the Clinton Library has dumped a number of her memos which are fascinating. So if the "tic toc" of politics is your thing, then you have to visit these documents and read through them.

More On Missouri

2010-05-11T13:19:00.002-04:00

The good folks working for Missouri Senator Jason Crowell (R) have shared with me a letter they sent to Missouri Attorney General Chris Koster (D) imploring him to move forward with judicial action to over turn a recent signing statement challenging a provision of a bill dealing with funding to elementary and secondary education in the State.

Senator Crowell makes a number of arguments to bolster his case:

The Governor has exceeded his constitutional authority when he issued the challenge: The Missouri Constitution only allows the governor, when presented with a bill one of three options--sign it, veto the whole bill, or line item veto bills dealing with appropriations;
The executive branch cannot declare a law unconstitutional: Senator Crowell cites a MO. court opinion where the attorney general issued an opinion challenging the constitutionality of a provision of law. The court found that the attorney general did not have the constitutional authority for such an action;
The governor may not challenge the purpose behind an appropriation: The Governor did not challenge the appropriation but rather challenged the wording of how the money should be spent: The argument here is when the governor is faced with an appropriation bill, he has to strike the provision down, not rewrite it;

The interesting thing here is that Senator Crowell admits that the provision may indeed be unconstitutional because it inappropriately legislates" though an appropriation act." Further, the appropriation attempts to provide money for several different things while the MO Constitution mandates that appropriations must be for "single subjects."

Crowell concludes:

With this said, in my opinion, a constitutional issue as to the validity of section 14.005 may exist but that constitutional issue is solely a matter for the judiciary of the State to determine, not the Executive. After careful review of the unprecedented actions of Governor Nixon, I respectfully request you to use any and all legal powers to ensure that the separation of powers found in Missouri's Constitution are protected as quickly as legally possible.

First the challenges. The second challenge about the executive branch being unable to disregard the law does not apply here since we are talking about the governor, and not an inferior executive branch officer. The other challenges hinge on whether the governor is really bound by three choices--sign a bill, veto a bill, or item veto appropriations bills? Here I would suggest a look into the actions of previous governors because, just like George W. Bush, the signing statement that got all the attention was hardly the first one ever used. My bet is that Governor Nixon's signing statement is not the first signing statement challenge issued by a Missouri governor. Thus going into the courtroom, the legislature would have to tell a judge why this one is unconstitutional and not the previous ones. This was the strategy of the Reagan administration--to use the signing statement on bills that were not likely to draw much attention so that when they were used on a bill with a high public profile, the administration could point to all those that had been used without a ruckus by the Congress or anyone else.

There is also the question of standing, which has been key with the presidential signing statement and the focus on this book by Christopher May. May argued that one big problem with a president defying the will of the legislature is a lack of standing to sue. The courts cannot get involved proactively, but instead must wait until a suit is brought to the courts. And a suit may only come to the courts if the parties have standing to sue. For Senator Crowell, he cannot sue on behalf of the Congress, but instead must get Congress to authorize a suit. Even though the MO. legislature is controlled by the Republicans, it is still a tall order to get the entire Congress on board.

Instead, the better hope for a judicial outcome would be to get some of the school districts to sue. The Powers Report makes the case that 151 MO. school districts will be negatively impacted by the challenge, and anyone of them, or all, will have standing to sue. In that case, Senator Crowell could provide an amicus brief challenging the governor's action.

I guess we next wait for the attorney general's response, though I think we all know what he is going to say.

Return of the Signing Statement

2010-05-06T22:34:00.002-04:00

But not what you think.

There is a separation of powers battle going on right now in Missouri, and the signing statement is right at the center of it. If you are confused, then let me explain.

It is my belief that the current use of the signing statement was largely influenced by chief executives at the state level, and not the federal level. When the Reagan administration was defending its use of the signing statement back in the 1980s, they pointed to actions of governors, who had used the signing statement frequently to challenge defective provisions of law--much the way that presidents have pointed to the use of the line item veto by state governors to underscore why we should not be worried about the president having the same ability. I had filed this fact away when I was working on my dissertation as something that I should return to down the line--how many, how often, and how long have governors been using the signing statement to correct defective provisions of law? And so I have found bits and pieces of evidence where it has been used--for example, former Governor of Kansas turned current Secretary of HHS Kathleen Sebelius frequently used the signing statement to do battle with the Kansas State Legislature (such as this example of what I call a rhetorical signing statement).

And this brings me back to the beginning. Last month, Missouri Governor Jay Nixon (D) used a constitutional signing statement (.pdf) to challenge an education appropriations bill. Nixon wrote in the final paragraph of the statement:

The Language in Section 14.005, purporting to deviate from current law, is legal surplusage and beyond the constitutional authority of the General Assembly. Therefore, consistent with the requirements of Article IX, Section 3(a), and in recognition of the limitations imposed by Article III, Section 23, the Department of Elementary and Secondary Education shall distribute the funds appropriated under Section 14.005 of Senate Committee Substitute for House Committee Substitute for House Bill No. 2014 consistent with existing law.

There it is--plain and to the point. The legislature so far has been fumbling as to the appropriate course of action--sue using their own attorney, or "...ask Attorney General Chris Koster to do so." Never fear, the attorney general is here.

Senator Jason Crowell (R) of the Missouri legislature has asked Missouri Attorney General Chris Koster (D) to look into the action to determine its legality. Crowell argued that the "...governor has no authority to interpret the constitutionality of legislation passed by lawmakers--he can merely approve it, veto it or, in the case of budget bills, veto specific line items...the signing statement...is violating the separation of powers and...sparking a 'constitutional crisis.'"

No word yet out of AG Koster's office on what he will do. My guess is that Senator Crowell isn't so concerned with the signing statement, but instead the politics of the AG's decision. Force the AG to decide between the constitutional place of the signing statement or his boss as the head of the ticket. I am willing to bet that previous Governors of Missouri have used the signing statement to challenge provisions of law--and Nixon, who once served as Missouri's AG, probably knows this. But since the signing statement is so obscure (Crowell admitted to not understanding precisely what it was himself), the legislative Republicans will have an easier time framing its use in terms of tyranny. Thus in this AP article, one MO. Senate Republican called it "Tyranny" while another claimed it as "an unprecedented power grab." Heck, it worked wonders for congressional Democrats back in 2006 when George W. Bush was under the spotlight for his use of the signing statement, so why not now?

Stay tuned...

Why Is It So Hard To Get It Right?

2010-02-15T20:58:00.001-05:00

This book review of Gary Wills's new book on executive power is emblematic of why my attempts to make the unitary executive theory mainstream will probably never happen.

The book, Bomb Power: The Modern Presidency and the National Security State, apparently makes the case that the persistence of international crisis (mostly the Cold War) has allowed the modern presidents (since FDR) to centralize massive power within the Oval Office--apparently far greater power than even imagined by Alexander Hamilton, the Godfather of the strong presidency (if you believe revisionist history). I have a great deal to say in a critique, but I would prefer to read the book before I do (however I would love to hear from you if you have read the book and what you think about the argument).

What burns me is the things--the important things--that this reviewer, Jurek Martin, gets wrong. There are the minor things--for instance, Martin notes that the Pentagon Papers were "...published only after the Supreme Court so ordered." That isn't true. The Papers had already begun running in the "Washington Post" and the "New York Times" before the Nixon administration asked for the injunction. Nixon was delighted at how the Papers dimmed the light on Camelot, and was persuaded by Kissinger to put a halt to them because of their damage to elite opinion.

No, what gets me is Martin's characterization of the unitary executive and the signing statement. He writes of the unitary executive:

But the organic growth of the national security state needed theoreticians and they comprise Wills’s large Hall of Infamy. It was the (ironically conservative) Reagan justice department, under attorney-general Edwin Meese, that developed the theory of the “unitary executive” – which basically says that the law is anything that the president says it is.

First, why is support for the theory antithetical to conservatives? Why "ironical"? Second, more to the point, is the definition of the unitary executive--"which basically says that the law is anything that the president says it is." Where in the literature do any scholars, including myself, define the unitary executive this way? As I have noted elsewhere, there are three tenets to the unitary executive: 1) the executive power belongs to the president and the president alone; 2) that the president has an independent right to interpret the Constitution and to determine what actions need be taken in the face of laws that he considers to be unconstitutional; and 3) as the only nationally elected official in the United States, he has a constitutional obligation, via the "Take Care" clause of Article II, to make sure that the laws are faithfully executed. This means that the president has a right to know, if not influence, how inferior executive branch officers behave--how they enforce the law, who they communicate with outside the Executive Branch, etc. Now since the unitary executive theory first came to life, those three tenets have been in place. What in those three tenets suggest that the president may claim the law means what he feels it means? What Martin knows about the unitary executive apparently has come from blog postings.

Then he argues that the unitary executive has "produced a welter of 'signing statements' in which a president says he can disregard, for whatever reason, any section of a duly passed congressional bill he has just, er, signed." First, the signing statement, in all forms, preceded the birth of the unitary executive. Granted, they don't start becoming significant until the Reagan administration, but even so, the unitary executive--as a formal theory--didn't debut until after Reagan left office. So while the two have a lot in common, one thing it doesn't have in common is cause and effect. And then, just like his definition of the unitary executive, his definition of the signing statement is equally as bad--the president can disregard, "for whatever reason"?? I wish Martin would find for me any signing statement--even the more egregious Bush signing statements, that say: "I refuse to enforce Section 111 just because." Then finally Martin says that "Bush the Younger" issued "more then (sic) 1,400 such reservations..." He may have gotten this number from Wills, at which case I am interested in his citation. But 1,400? By my counting, Bush issued less than 1,200. Where the extra 200+ came from is beyond me.

But this is the "Financial Times", which has a readership considerably higher than this blog posting or my research. I am obligated to be precise and accurate, why aren't they?

2010-02-13T15:29:00.002-05:00

Today's New York Times carries a story about Obama's turn toward unilateralism after a first year that was a mixed bag of success and failure (and an article on presidential power that was not penned by Charlie Savage).

This move is so predictable to anyone who has watched presidential behavior in the last 30 years--in fact, not to toot my horn, but it is something I told reporters last January when asked if Obama would be a different president than President Bush (one was to Pacifica Radio and the other was to Congressional Quarterly). Then I stated that once the dust had settled and the glimmer of the Obama victory faded, his public approval numbers would begin to fall. Further he would find frustration in trying to advance important policy through the Congress--promises he had made on the campaign trail--and with an impending re-election campaign coming--would need to act quickly--thus would turn to the unilateral powers that are now deeply entrenched in the Oval Office.

So here we are, just a little over a year after Obama was sworn into office, and the administration is announcing that it gave Congress its chance to come on board, and Congress failed to act:

Mr. Obama has not given up hope of progress on Capitol Hill, aides said, and has scheduled a session with Republican leaders on health care later this month. But in the aftermath of a special election in Massachusetts that cost Democrats unilateral control of the Senate, the White House is getting ready to act on its own in the face of partisan gridlock heading into the midterm campaign.

"Look, we gave it a shot and Congress just wouldn't give us everything we wanted, so we all need to move on" seems to be the message here. The interesting thing about this is how quick the administration is to move to unilateralism and how flimsy of an excuse it has given--how many presidents in the past would have loved having control of both houses of Congress, including 59 Senators?

With each president since Reagan--bar one--the president moved toward unilateralism for good reason--they were dealing with an opposition that not only controlled one or both houses of Congress but were bitterly partisan. For instance Clinton didn't lurch toward unilateralism until 1995--after the Republicans took the Congress. And the one president who went unilateral right away when given a Congress controlled by fellow partisans? George W. Bush. George W. Bush had unified party control of government and a public approval rating that was sky high, yet behaved as if he was surrounded with a hostile public and Congress.

The problem to me seems to be that Obama hasn't figured out leadership yet. For instance, last year he made the ill-fated decision to allow the Congress to construct two major and controversial policies--health care reform and cap and trade--without the involvement of the White House. And when Congress failed, he now thinks that he can get by without them.

Congress is like that wild horse you often see featured in Disney movies that needs to be broken. The only way you break it is to get on its back and show it who is boss. You don't break a wild horse by putting it in a pen and allowing it to tame itself. Had the Obama administration told Congress from the outset what it wanted--and worked diligently at each step--chances are good that the President would not be in the pickle he currently is.

If he is looking for a history lesson, he should look to Reagan's first term. He gave Congress just a couple of major policies to focus on and he used a carrot/stick approach to getting what he wanted. He did the little things like posing with Members or inviting leaders on the yacht Sequoia for one on one time, and for those who were recalcitrant, he called their major donors or he singled them out for personal attacks--all of which worked. Had Obama taken a similar approach, you might not have 60 or 70 nominees bottled up by one senator--instead, he should have made Senator Shelby of Alabama a day-after-day symbol of Republican obstructionism and not waited until now to do so.

So from a research perspective, I am pleased to see that unilateralism is alive and well.

Yes We Can!

2010-01-16T00:18:00.002-05:00

There is a lot of flak the Obama administration is getting lately, some of it deserved, some of it not. And it certainly will only get worse as the November midterms draw near. A case of the hypocrisy in the flak appeared in yesterday's Wall Street Journal's OpEd page. Imagine that! Hypocrisy on the WSJ's OpEd page. And who better to dish the hypocrisy than Karl Rove?

Karl Rove offered a laundry list of items where Obama has reneged on campaign promises, and one of those promises is the signing statement. Rove has lept upon the recent information in last week's New York Times on how Obama has gone underground with his constitutional challenges, no longer using the signing statement, and instead using OLC opinions which are not always published. It is interesting that Rove relies upon this Times piece given how much effort the Bush administration expended trying to undermine it back in 2006 and 2007.

First, let's brush aside the things Rove got wrong. He argues that presidential signing statements date to "Andrew Jackson." They date to James Monroe. Rove argued: "Because of Washington's hyperpartisan atmosphere, President George W. Bush drew heated criticism from Democrats for his signing statements." Actually the criticism was bipartisan--and leading the attack was then Republican Arlen Specter, who held the Senate hearings on the Bush administration's use of the signing statement in June 2006.

Next he argues: "Among [Bush's] toughest critics was Barack Obama..." That simply is not true. Obama was not a leading critic of the Bush administration's use of the signing statement. In fact, among the toughest was Senator John McCain (R. AZ), who was the only candidate for the presidency in 2008 to swear off using the signing statement for any reason should be become president.

Now the hypocrisy, which Rove claims is all Obama's. Rove writes:

Recently, the Obama administration admitted that after receiving the letter from Messrs. Frank and Obey, it stopped the practice. But the president still has aides examine each bill to identify provisions the administration will disregard. It's just that Team Obama isn't telling Congress which provisions it is ignoring. It's right for him to defend the office of the presidency. The problem is that he is doing it in a way that violates his own standards of transparency and accountability.

Wow. First, ever since the Reagan administration, it has been standard practice for the president's advisers to examine each bill to identify those provisions that warrant a challenge. In fact, up to the Bush administration, this was the sole duty of the Office of Legal Counsel inside the Department of Justice. If you want to complain about political advisers making suggestions about challenges, then Rove should have stayed in-house given that the vice president and his right hand man Addington were making decisions about challenges that contradicted the advice of the Office of Legal Counsel (guardians of the Constitution) as well as the President of the United States (see the 12/30/05 signing statement of the Detainee Treatment Act).

And second, Rove cannot possibly be condemning another administration about its lack of transparency in its use of the signing statement. If we go back to the strategy sessions in the Reagan Justice Department over the use of the constitutional signing statement, Samuel Alito, a young attorney in the DoJ, advised the use of constitutional challenges over bills where no one would pay much attention in an effort to slip it past the Congress. And then there is the Bush II administration. One of my Bush-era FOIA request asked for challenges that were reported to the Congress, which is a requirement written in statute. They gave me challenges made during the Clinton administration. This despite a GAO finding of several provisions of law that were not enforced. And then there are the signing statements themselves. Many were so vague that it was impossible to determine what was exactly being challenged or why. And then in 2007 and 2008, after public attention was drawn to the use of the signing statement, the challenges disappeared. Where did they go? It is clear they went underground to the OLC. I am convinced that the Obama administration's new strategy simply picks up where the Bush administration left off. Using the OLC to issue the challenges so as to avoid public scrutiny. My next round of FOIA requests will determine whether this is true or not.

So to me it takes a tremendous amount of moxie to criticize any administration for its lack of transparency given what the Bush administration did--often with the help of Rove--political operative par excellence! But then again, he picked the WSJ's OpEd page, which is never short on hypocrisy when it comes to criticizing Democrats.

New Research on the Signing Statement

2010-01-15T13:58:00.000-05:00

My colleague Bryan Marshall and I have a new publication in Social Science Quarterly (March 2010) that examines the various conditions that explain the use of the presidential signing statement. In the paper, we looked at such conditions as divided government, federal election cycles, and whether the legislation was major or minor, and found that presidents seek any condition to provide the opportunity to move unilaterally. Interestingly we find that presidents are as likely to use the constitutional signing statement during periods of unified government as during periods of divided government.

For the time being, the article is available online at the Social Science Quarterly website.

Be Careful What You Ask For

2010-01-09T18:13:00.002-05:00

Philip Cooper, in his excellent review of unilateral devices a decade or so ago, noted that when elites begin to focus on the way the president uses a unilateral device, the president will shift to a different device that accomplishes the exact same thing but does not come with the same public scrutiny baggage. In the 1990s there was a lot of scrutiny of the executive order, for example, which Clinton was using in order to accomplish policy goals shut out by the Republican Congress. So Clinton simply shifted to a different device, or "tool" as Cooper called it, such as the "memoranda" to take the place of the executive order. Different device, same effect. What was different was public scrutiny.

A unilateral device, as you readers well know, is something that the president uses to accomplish political goals. Their value is they allow the president to circumvent the Congress. Examples of unilateral devices: the executive order, memoranda, the presidential proclamation, the executive agreement, and the signing statement.

Today's New York Times has an article about the signing statement and its use by the Obama administration that may confirm Cooper's argument.

The article notes that the Obama administration has laid off using the constitutional signing statement since last summer despite signing bills that should have elicited challenges. If you recall, Obama set off a firestorm in the Congress last summer when he challenged provisions of law dealing with US participation in international institutions despite earlier compromising with the Congress to allow the prohibitions to go forward. Obama caught a left-right series of punches from Democrats and Republicans upset with the challenges. After that, Obama issued no more constitutional signing statements (though he has issued rhetorical signing statements since). Yet, as the article notes, Obama signed legislation last month that contained the exact same prohibitions but did not issue a constitutional signing statement challenge the provisions. Instead the administration argues there is no need to repeat the challenge because of their previous challenges, backed up with an OLC opinion claiming the right to ignore the provisions. But that opinion was for a different bill, which does not seem to bother the administration.

Interesting.

There are a number of different theories surrounding the reasons why a president issues a constitutional signing statement. One theory is you make the challenges to any infraction in any bill in case the issue lands in the courts--the president can point to a consistent set of challenges refusing enforcement, as happened with the legislative veto in the 1983 Chadha decision. A second theory suggests that they are used in an effort to influence judicial decisionmaking, which was behind many of the bills in the last couple of years attempting to limit the use of the signing statement. A third theory suggests that they are used to influence bureaucratic decisionmaking. It seems that that administration may be abandoning that first theory in the belief that these issues are not likely to end up before the courts, so why consistently draw attention to the constitutional signing statement by constantly repeating yourself with identical challenges?

They may also be hoping that new strategy, coupled with the numerous obstacles they have raised to track the use of the signing statement, will simply cause the issue to disappear as the public turns their attention elsewhere. Maybe. But they may be behaving as Cooper believed--turning to a different device that is harder to track. In the article, Jack Goldsmith, who worked in the OLC in the Bush II administration, notes that turning to the OLC opinion has advantages over the signing statement in that OLC opinions "are often secret," leading to "somewhat less accountability." Thus the only way you would know whether or not a challenge was made would be to try to monitor the behavior of those who work for the president, an incredibly daunting task that even the Congress has trouble doing.

It is ironic--this behavior is in direct relation to the abuse of the signing statement by President Bush II. His actions, which drew such high profile scrutiny of the signing statement did not lead to the disappearance of the device, but instead lead to driving it underground, leaving less accountability and scrutiny to a device that was already hard to track to begin with.

Be careful what you ask for, I guess.

Meet the New Boss--Same as the Old Boss

2010-01-06T17:24:00.000-05:00

SUNY-Cortland Professor Robert Spitzer, who studies the president and presidential power--and in particular the veto--took notice of, and responded to, an attempt by President Obama to use twist the language on the veto in a way to enhance the president's power over the Congress.

The issue is something known as the "protective return pocket veto," and Obama issued it on December 30 of last year (notice how it came on New Years Eve when no one was looking? Similar to President Bush's infamous torture signing statement of December 30, 2005). As Spitzer explains, the founders took pains to balance the relationship between the Congress and the president when it came to legislation.

As we all know, when the Congress passes a bill, it sends it to the president for his consideration. The president has ten days to act--sign it, not sign it, or veto it. Here is where the concern was--the veto gives the president a lot of control over legislation, and the Founders worried that it might be too much control. Thus instead of giving the president an absolute veto, they instead gave him a qualified veto, meaning that the Congress has the opportunity to override the veto, so long as it can must supermajorities in both chambers. The ten day clock was added to force the president to act, for without it the fear was the president would leave it on his desk and not act on legislation he did not like. On the other side, when the president vetoes a bill, he returns it to the Congress for action. Here is another potential problem dealt with by the Founders--what happens if Congress gives the president a bill that is controversial but then quickly adjourns, leaving him without anyone to return it to? In steps the pocket veto--any bill that has not run out the ten day clock when Congress adjourns is officially dead.

The protective return veto attempts to let the president have it both ways--vetoing a bill without sending it back to the Congress for action. President Obama's veto statement was titled "Memorandum of Disapproval"--which Spitzer notes is the nomenclature for the pocket veto, but in his message he wrote that the bill was vetoed though he cited Supreme Court precedent dealing with the pocket veto. As Spitzer argues, "...claiming the exercise of a non-return pocket veto while simultaneously returning the bill to Congress is a presidential power grab designed to stretch the no-override pocket veto into an absolute veto power that could be used anytime Congress is not in session, giving the president the very power the Founders sought to deny the office."

This practice of trying to add language to the veto power denied by the Founders was begun by Ford and pursued--despite Supreme Court opinion to the contrary--by each president since. It also is a practice that corresponds to the rise presidential unilateralism following Watergate--something many believed would disappear with Obama but clearly has not. And given his attempt at subterfuge by delivering it on New Years Eve, hopefully when no one was looking, is more evidence that the new boss is the same as the old boss.

Asked and Answered?

2010-01-06T16:06:00.000-05:00

So yesterday I asked why the Weekly Compilation of Presidential Documents--updated regularly since 1965--stopped getting updated once President Obama took office. Well rather than asking rhetorically, I sent a message to the Government Printing Office asking them what gives. To my surprise--given that it is the government and that I have FOIA requests that have not been answered for months--they answered me within a day! Here is there complete answer:

The Weekly Compilation of Presidential Documents has been replaced by the Daily Compilation of Presidential Documents as of January 29, 2009. The Compilation of Presidential Documents collection is composed of the Daily Compilation of Presidential Documents and its predecessor, the Weekly Compilation of Presidential Documents. It is published by the Office of the Federal Register, National Archives and Records Administration (NARA) under the authority of the Federal Register Act, (44 U.S.C. Ch. 15; 1 CFR part 10).

This collection integrates material from the weekly publication dating from 1993, with Daily Compilation material as published from January 20, 2009 - forward. The website will be updated frequently, as information is released by the White House press office to Federal Register editors.

I think the last part is instructive: "The website will be updated frequently, as information is released by the White House press office to Federal Register editors." The fact of the matter still remains that this move to the daily releases has not necessarily made it any easier to monitor the behavior of the president.

Riddle Me Some More

2010-01-05T17:37:00.001-05:00

For those who do research on the signing statement, the reliable place to go for the longest time has been the "Weekly Compilation of Presidential Documents." It has reliably been tracking everything that happens in the White House (within limits) since 1965, and since 1993 it has been online and searchable. Thus if you are looking for signing statements, all you need to enter is "Statement on Signing," and it will spit out each and every signing statement for that year. That is until the Obama administration.

If you are looking to the Weekly Comp to search out Obama signing statements, don't. As of January 26--just six days after Obama was inaugurated--the Weekly Comps stopped updating online. Instead, everything has seemingly shifted to the "Daily Compilation of Presidential Documents," which you can browse by month, but searching is a different question. If you want to search, you end up searching all government publications, which is not the same as searching one publication by year. So now if you enter "Statement on Signing", you will get your signing statements, but instead you will get all signing statements in the database.

I don't want to sound paranoid, but is it coincidence that trying to track the current president's signing statements just got harder and not easier?

Signing Statements, Local Style

2009-11-08T15:32:00.000-05:00

In the past, presidents have justified their use of the constitutional signing statement by referring to the practice of state governors use of constitutional signing statements, much the way presidents have referred to the power that governors have to use the line item veto as reasons to tamp down fears that this would give the president too much power over legislation. But what about other chief executives, such as big city mayors?

I have recently come across an interesting signing statement issued by the Mayor of Washington D.C., Adrian M. Fenty. DC's attorney general--Peter Nickles--has sent a memorandum to the city council citing 16 problematic sections of the 2010 city budget, six of which contain provisions that Nickels says will not be enforced. These six provisions seem mostly to violate separation of powers principles by allowing the council to exercise executive functions.

To be perfectly honest, I do not know much about local government and whether this is a new practice in DC or something that has been long standing. This story in one of Washington's alternative dailies, chock full of quotes from folks on the council, seem to suggest that this practice is new to the city. But what is interesting is just how instructive this challenge should be to the White House--particularly the Obama White House, which promised to be crystal clear in the challenges he issues to provisions of the law. In the Nickles memo, he details what section and subsection is a problem, what it is designed to do, and why it interferes with the prerogatives of the mayor.

Just Like Bush

2009-10-11T21:12:00.001-04:00

I have just completed a paper looking at the question of whether the unitary executive theory survived the Bush administration. In this paper, I look at how the Obama administration has exercised power consistent with the unitary executive, and that he has used the signing statement in a way that resembles his predecessors, including his immediate predecessor, George W. Bush.

President George W. Bush does not get much praise when it comes to his use of the signing statement, and most of the scorn is not misdirected. His administration's abuse of the signing statement--the blame I direct at his vice-president--has made it more difficult for his successor to use it without immediate criticism. Prior to the Bush administration, not many people, as I can attest, cared much at all about the signing statement. Not true today. But there were legitimate ways in which the Bush administration used the signing statement to challenge provisions of law (the so-called constitutional signing statement).

For example, as I documented a year ago, the Bush administration was handed a bill regarding India's nuclear program that had provisions that were offensive to the Indian Government and people because of provisions that seemed to weaken the territorial integrity of the country. As a way to mollify the Indian Government and keep them committed to US policy, the Bush administration showed them it's signing statement that challenged the controversial provisions. This made the Indians happy, and their objections were dropped.

Flash forward a year, and rather than the Indian Government, it is now Pakistan, and another foreign policy bill, though this time designed to provide Pakistan with security assistance for the next several years. Officially titled the "Enhanced Partnership with Pakistan Act of 2009," it is more commonly referred to as the Kerry-Lugar Bill, after its two sponsors, Senators John Kerry (D. MA) and Richard Lugar (R. IN). In particular, there are provisions of the bill that seem to tell the Pakistani government how it should use its military and security forces or suggests that the Pakistan is not doing all it can to crack down on terrorist organizations housed inside the country. This has created some diplomatic problems for the United States. And what has the US done to temper the concerns of the Pakistani leadership?

According to this story in "The International News," the proposed way out is a potential signing statement to challenge the contentious provisions of the bill. It notes that though the bill becomes law with the contentious provisions intact, "...the people of Pakistan would have a word from the President of the United States that America respects Pakistan's sovereignty" because the "statement that the...president makes, when he signs a bill into a law, is also meant to explain the president's intent how to execute, or carry out, the law including giving guidance to his administration..."

Thus the signing statement becomes a completely legitimate, and necessary, device that allows the president to deal with the twin pressures that come from the domestic and international spheres. It is funny that this story of the signing statement--particularly the constitutional signing statement, does not get told, unless you are privy to international newspapers, which covered this fairly extensively.

Cool Database Alert

2009-09-15T20:45:00.001-04:00

Brandon Rottinghaus and Jeremy Bailey, two presidential scholars of note, have gotten their database on presidential proclamations up and running. The database has some 10,000 proclamations from the past to the present and should be a tremendous asset for anyone who does research on the presidency, presidential power, presidential rhetoric, presidential unilateralism, or is just interested in the development of the American Presidency.

Most people probably think of the proclamation as a meaningless rhetorical device--such as when the President issues a proclamation pardoning a turkey on Thanksgiving (maybe Obama can pardon Representative Wilson this Thanksgiving?), but in reality the proclamation can also be used in the service of exercising substantial power, as in the case of declaring thousands of acres of land public land. Clinton made use of the proclamation just for this very purposes, infuriating land developers out West.

Play around with the database. You won't be sorry.

Another Publication

2009-09-09T21:33:00.002-04:00

Got confirmation that my co-authored article (with Bryan Marshall), "Going it Alone: The Politics of Signing Statements from Reagan to Bush II" just got the green light for publication in the journal Social Science Quarterly. It will appear in the March, 2010 issue of the journal. One of the peer reviewer suggested that we read some of the work on the signing statement done by Christopher Kelley! It is nice that folks know my work.

Apologists

2009-08-11T11:18:00.000-04:00

During the Bush administration, whenever controversy arouse, there would be the defenders in the media to rebut the claims--in essence--to apologize for its transgressions. Now that the Democrats control the White House, the apologists on the Left have come out. Case in point is Mori Dinauer at The American Prospect. She has a blurb today defending Obama's use of the signing statement. At point is Charlie Savage's NYT piece a couple of days ago that was critical of the signing statements issued so far by President Obama. She writes:

There's no journalist who understands the issue of presidential signing statements better than Charlie Savage, but his New York Times story today on Obama's use of the tactic almost feels premature. We learn that the president has "relaxed his criteria for what kinds of signing statements are appropriate," this has "riled" some congressional Democrats, and the American Bar Association's most recent president doesn't believe signing statements are an "appropriate practice." The problem is that while Bush's signing statements were all grounded in an absurd theory of presidential authority, Obama's have avoided mention of any such underlying theory.

The apology comes in that final statement: Bush's statements were all grounded in "an absurd theory of presidential authority" while Obama has not "mentioned" the theory once--the theory of course is the unitary executive. Actually, if you are worried about president's acting in accordance to the theory, then you want a President Bush who overtly defends aggressive actions via the unitary executive. As I have noted elsewhere, the unitary executive is alive and well inside the Executive Branch--having been placed there through careful use by Presidents Reagan, BushI, Clinton, and Bush II. The problem is that until the Bush II administration, it was subtle in the actions the presidents took. Presidents Reagan and Bush I referred to it on just a couple of occasions and President Clinton never did. But if you look at the actions these Presidents took, then it was easy to see the theory at play. The same is true for President Obama. There is really nothing in his actions to date to suggest that he is behaving any differently, and for good reason. The theory allows the president to accomplish things that cannot be accomplished working with others.

So before we breathe a sigh of relief or before we admonish others for being quick to jump to conclusions, we should look to the actions the president takes and match them with the tenets of the theory. You might be surprised.

A Unitarian or Not?

2009-08-09T11:33:00.002-04:00

Charlie Savage of the New York Times has a report in yesterday's newspaper on the signing statement and the Bush administration that sums up where the debate on the device and its use by the administration is today. My thanks to Charlie for throwing some light my way by citing my data on the numbers of signing statements per president, which can be found on my webpage stretching back to the Reagan administration.

There are a couple of points in the column that merit comment. Toward the bottom, Savage writes:

Mr. Obama has attached signing statements to 5 of the 42 bills he has signed, focusing on 19 specific provisions. He also challenged, without listing them, “numerous provisions” in a budget bill requiring officials to obtain permission from a Congressional committee before spending money. It contained dozens of such requirements.

This represents a problem for those like me who research the signing statement--the neglect that rhetorical signing statements receive simply because they are not as sexy as their constitutional brethren. To date, Obama has issued 13 signing statements of which 5 can be classified as constitutional. What this means is that 5 signing statements contained provisions that challenged the constitutionality--or interpreted--provisions of the bill contrary to legislative intent. The majority--which has been the case to date for every president BUT the two Bush's--issued more rhetorical signing statements than constitutional ones. The rhetorical signing statement is designed to draw public (press/congressional/international) attention to the bill the president signs.

It is important that we do not forget both have important implications for power.

Later, Savage writes:

Still, unlike Mr. Bush, Mr. Obama has not mentioned the Unitary Executive Theory, an expansive view of executive power that conflicts with Supreme Court precedent. His only invocation of his commander-in-chief authority was limited, taking aim at a requirement that he get permission from a military subordinate before taking an action.

We must be cautious not to make the assumption that because he does not use the phrase "unitary executive theory" that it is not there. The unitary executive theory, developed by attorneys in the Reagan administration, has been around now through four successive presidencies. It's tenets buried deeply within and throughout the entire Executive Branch. And it was rare for a president to refer to it specifically and deliberately until the previous Bush administration, which could not stop mentioning it whenever and wherever it had the chance. But because the president does not say it aloud does not mean it is not there. The Clinton administration never used the term, and yet it supported its key tenets as much as the Republicans before and after did.

So look at the facts: Obama has people in key places--for instance the DOJ--who are proponents of the theory (see for instance the work of Solicitor General Elena Kagan). He has not revoked an executive order born out of the Reagan administration empowering the OMB--and in particular the OIRA--to monitor the behavior (on behalf of the White House) of the executive branch agents. And he continues to use the signing statement to advance principles of departmentalism, which is consistent with a key tenet of the theory.

So while Obama may not be behaving like his predecessor, the evidence thus far confirms that he is behaving like a unitarian.

Read Between the Lines

2009-07-30T22:32:00.002-04:00

Bob Egelko, a fine reporter with the San Francisco Chronicle, has an interesting blurb from last Friday's paper on a talk that our new Solicitor General, Elena Kagan, had at the annual meeting of judges and lawyers of the 9th Circuit Court of Appeals.

Kagan, a former Dean of Harvard Law School, held a job as a Clinton policy adviser and penned a telling article several years ago defending much of what many consider powers consistent with the unitary executive theory--though she did not come out and say as much.

On Friday, she was asked whether she would refuse defense of the law, as something each administration in the past has done at least on one occasion? Her answer: "I owe clear obligations to Congress...one of the most important parts of the solicitor general's job is to defend" the law. This would seem, as I suggested to Mr. Egelko, that perhaps Kagan used the talk to molify the anger amongst congressional Democrats over President Obama's recent signing statement. But there seems to be a bit of a contradiction, or perhaps a qualification, in Kagan's statement.

Over at dagblog, one blogger who also attended the conference provides a bit more detail. He also heard Kagan's praise of the legislative branch when asked about defending the law when the administration believes it to be unconstitutional:

Chief Judge Kozinski asked about the tension between Kagan's duties to the Executive branch, and to other agencies of the government. As she responded, her office owes an important obligation to the Legislative, in particular to defend the constitutionality of statutes, and the special historical relationship of the Solicitor General with the Supreme Court, redolent with such duties of candor that the SG is prone to confessions of error and other self-critical statements seldom passing the lips of lawyers. As she concluded this section of remarks, she made the point private lawyers will appreciate: her client is none of the branches or actors, but is instead the entire United States Government.

This appears to not only be a bone tossed in the direction of the Congress, but also a blunt statement where Kagan is making a break with the Bush Justice Department, which was so politicized that we are still dealing with the ramifications of actions taken years ago. Yet later in the proceedings, Ms. Kagan was asked about signing statements, and gave an answer that seemed to conflict with her first:

On to audience questions. Signing statements? Kagan initially picks at the question, because of the tension between her role as advocate for the Executive, acknowledging
that the topic is a hotly contested one. Finally, she answers frontally: when in conflict between the legislative goal of affirming the validity of legislation, and protection of the authority of the executive, the executive prevails in her office.

Whoa! Looking backwards, when was a solicitor general ordered to refuse defense of the law when the president believed it violated his personal politics and not the Constitution? In the cases that leap to my mind, never. FDR refused defense of a law demanding that three State Department officials be punished because the Congress did not like them--he believed that violated the Constitution's ban on bills of attainder and the Supreme Court agreed. Arguing on behalf of the law? Attorneys hired by the Congress. The Carter administration refused defense of any law it considered to be a legislative veto, which violated the Constitution's principles of bicameralism and presentment. And the Supreme Court agreed. Arguing on behalf of the law? Attorneys provided by the Congress. President Clinton refused defense of a law that kicked out of the military and pulled health care to any military personnel testing HIV-positive. Before that could be tested, the Congress overturned the law. The fact of the matter is that when the president refuses defense of the law--just like when he refuses enforcement--it is because he believes it violates a constitutional principle.

And I am sure Ms. Kagan knows it as well.

Midnight Regulations

2009-07-23T21:30:00.001-04:00

Susan Dudley, faculty in the Regulatory Studies Program at the Mercatus Center of George Mason University, and a former recess head of the Office of Information and Regulatory Affairs (OIRA) inside the OMB during the final two years of George W. Bush, has an interesting article in the current issue of Engage, published by the Federalist Society, a conservative legal organization founded in the 1980s by attorneys in the Reagan administration.

Titled "Regulatory Activity in the Bush Administration at the Stroke of Midnight," she looks at the problem of a mountain of regulations pouring in as a president is winding down his final days in office. The regulatory process is one where a president can put his stamp on policy without the mess of trying to work policy through the legislative process. As a president is leaving office, this process jumps into overdrive. It is also a way the president can tie the hands of an incoming administration when that new administration is from the opposing party. Thus in 2000-2001, the Clinton administration issued regs lowering the permissible levels of arsenic in drinking water which gave the Bush administration a giant headache as it attempted to overturn the regulation and restore it to the original level. Generally speaking, when the new administration comes to power, any regulation that has not been finalized gets thrown out the door, which can be frustrating to career bureaucrats who put in a great deal of work only to see the fruits of their labor pitched into the garbage can.

Last year, Bush's Chief of Staff, Josh Bolten, sent out a memo to all departments and agencies demanding that any new regulation be finalized by November 1, 2008 to insure that 1) bureaucratic efforts are not wasted and 2) to insure that the president's policy stamp is protected and maximized. Thus, as a result of this order, incoming Chief of Staff Rahm Emanuel threw out "significantly fewer regulations than had Chief of Staff Andy Card" in 2001.

Thus as a result of this order, the administration was able to insure passage of key policies to which President Bush wanted to be remembered for:

* An HHS order protecting medical practitioners from performing services that violated their beliefs;
* A DOI order allowing mountain top mining;
* Treasury order restricting internet gambling.

More importantly, and a subtext to her piece, the order made sure that organized interest groups did not have their way with the treasury by pushing through thousands of regulations while the president and his staff were distracted with the business of leaving office.

Now there is an element of "nothing is as it seems" to this piece. In one part, she highlights how well the Bush administration cut down on "midnight regulations" that end up junked by the new administration when compared to previous administrations. But, when you expand the time period under study--to the last full year in office--you find that the administration issued more regulations than the previous year. So simply by moving the "drop dead" date from noon January 20 of the new year to November 1 of the last year, you have put on notice when the executive branch agencies have to finish the "president's work." To put it a different way, the Bush administration's policy maximized the president's advantage in the final year's regulatory output to insure favored regulations passed while those not favored died. In previous administrations, both ended up getting through because a president and his team simply concentrated on those important things that needed accomplished while organized interests also got their way.

Thus the Bush administration's policy simply advanced the president's power in the never ending saga of political institutions seeking advantage over others that has been a part of our system since 1789.

Smackdown

2009-07-22T13:36:00.001-04:00

President Obama has been getting a lot of grief recently as a result of his signing statement over the "Supplemental Appropriations Act, 2009" and his challenge to a number of provisions that demanded the administration take certain positions in US policy in relation to our funding to the IMF, among other things. Most of the grief spins on statements Obama made while on the campaign trail during the Democratic Primary in 2008 that seemed to indicate an unwillingness to use the signing statement under any circumstances, or under a limited, but undefined, set of circumstances. Lost in the shuffle is Obama's statement made in December 2007 when he filled in a questionnaire on how he would use the signing statement. Obama is asked: "Under what circumstances, if any, would you sign a bill into law but also issue a signing statement reserving a constitutional right to bypass the law?" Obama wrote:

I will not use signing statements to nullify or undermine congressional instructions as enacted into law. The problem with this administration is that it has attached signing statements to legislation in an effort to change the meaning of the legislation, to avoid enforcing certain provisions of the legislation that the President does not like, and to raise implausible or dubious constitutional objections to the legislation. The fact that President Bush has issued signing statements to challenge over 1100 laws – more than any president in history – is a clear abuse of this prerogative. No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives; unfortunately, the Bush Administration has gone much further than that.

There are two important points in his answer, and unfortunately the focus has only been on one part. Obama says that he will not use the signing statement to "nullify or undermine congressional instructions enacted into law." Now if you use just this standard, any constitutional challenge in a signing statement by definition will either nullify or undermine congressional intent. You have to partner it with a key second part: "No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives."

The constitutional signing statement is designed to challenge provisions that either intrude upon the prerogatives of the president or violate the rights of states or individuals. Under the principle of coordinancy, it is the obligation of each branch of government to determine the meaning of the Constitution and the powers it is given. The Congress and the presidency have been pushing the boundaries of their respective powers since 1789 and will continue to do so in the future. To insure that a push does not "stick," the president has made use of the signing statement to declare that certain provisions violate his prerogatives--the formation of hybrid commissions, the power to recommend, the power to appoint, the power to establish foreign policy, etc. The Bush II administration decided to use the constitutional signing statement, without congressional objection, to make broad claims about the power of the presidency--claims that were not seen as legitimate by most people.

Obama clearly claimed both in December 2007 and in his March 2009 memo on the use of the signing statement that he would revert to the more traditional use of the signing statement--to protect his prerogatives and the rights of states/individuals, and not to upset the clear intention of the Congress for political purposes or to make illegitimate claims of presidential power. You may ask what the first part means--making claims for political purposes?

Presidents have run into trouble when they attempt to use the signing statement to negate a battle lost in the Congress. For instance, the Reagan administration made a change to a controversial provision of the 1986 Immigration Reform and Control Act that revised a provision dealing with discriminatory firing. The provision was designed to allow fired employees to sue based on discrimination, placing the burden of proof on the employer. Because the provision was not clearly defined, the Reagan administration used the signing statement to define the provision so it placed the burden of proof on the fired employee. Then in 2002, the Bush administration defined the whistleblower provision of Sarbanes Oxley so narrowly that it provoked outrage in the Senate--Senators Leahy and Grassley pressured the administration to back away from the provision, which the administration did temporarily.

A Tisket A Tasket

2009-07-09T22:55:00.003-04:00

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

2009-06-28T12:58:00.003-04:00

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

2009-06-10T20:24:00.002-04:00

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

2009-06-07T17:29:00.001-04:00

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?

2009-06-03T14:55:00.002-04:00

(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

2009-05-20T23:03:00.003-04:00

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?

2009-05-03T16:03:00.001-04:00

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.

Senator Show-em

2009-04-24T11:28:00.001-04:00

"Roll Call" has a story from yesterday based on a press release from Senator Arlen Specter (R. PA), who is desperate for any attention because he is in a fight for his political life in his Senate race in 2010. The issue? A series of bills designed to "curb overreaching of [the] Executive Branch." This is captured in three pieces of legislation he has introduced that are designed to place "new controls on the use of presidential signing statements and electronic surveillance." The electronic surveillance is divided into two parts: one bill that fast tracks warrantless wiretapping cases to the Supreme Court and another that absolves telephone companies from suits that stem from the release of information to government.

The other? It appears that Specter is trying to revive the massive attention he received as Chair of the Senate Judiciary Committee in 2006 when he investigated the use of the signing statement by the Bush administration. His bill, S. 875, is designed to "regulate the judicial use of presidential signing statements in the interpretation of Acts of Congress," and is so far co-sponsored by two other senators, Charles Grassley (R. IA) and Jon Tester (D. MT).

Specter's bill is designed to "prohibit courts from relying on, or deferring to, presidential signing statements as a source of authority when determining the meaning of any Act of Congress." He challenges that the signing statement has "too often been used to undermine congressional intent," though no proof is provided of such a case.

This appears to be repeat of an earlier attempt by Specter to broadcast his challenge to the signing statement. Like those earlier attempts, they are all style and no substance.

There is no evidence to suggest that the courts are influenced by the presidential signing statement. The Government Accountability Office did an investigation of the signing statements issued by President Bush to appropriation bills in 2006, and also whether the signing statements had any influence over court interpretation of federal law, and found that, in a search of all cases dating back over 60 years, that there were "fewer than 140 cases that cited presidential signing statements," and of those that did, it was for trivial or fact-based reasons, and not central to the decision in the case.

Further, even if the legislation were to succeed, it seems to me to be an unconstitutional intrusion upon the prerogatives of the court. One branch cannot tell another branch how to interpret the law, and that is precisely what Specter's bill does.

So for Specter--good luck in garnering as much attention as possible. You're gonna need it.

Another Obama Constitutional Signing Statement

2009-03-30T20:38:00.002-04:00

Obama issued his fourth signing statement today, as well as his second constitutional signing statement, bringing to date a total of 13 challenges.

This signing statement--the "Omnibus Public Land Management Act of 2009," (HR 146), contained one provision (section 8203) that required the Secretary of the Interior to appoint members of the "Erie Canalway National Heritage Corridor Commission" that are "based on recommendations from each member of the House of Representatives, the district of which encompasses the Corridor; and persons that are residents of, or employed within, the applicable congressional districts (Section 1(C)(i))."

President Obama writes that it is "an impermissible restriction on the appointment power to condition the Secretary's appointments on the recommendations of members of the House," thus he would "require the Secretary to consider such congressional recommendations, but not be bound by them in making appointments to the Commission." Or in other words, "we will take it (the recommendations) under advisement, but don't expect much more."

The appointment power is a core presidential prerogative, and one of the areas that are likely to draw a challenge in a signing statement regardless of the party who holds the presidency. And it is clear that the Obama administration is taking its "Oath" obligation very seriously.

What To Think of the Signing Statement?

2009-03-28T11:35:00.001-04:00

So suggests the "National Journal," in an article today on the signing statement (sub. req.). The title reads: OBAMA FOLLOWS SUIT ON SIGNING STATEMENTS: THE PRESIDENT DRAWS FIRE FOR CONTINUING BUSH PRACTICE, BUT IT MAY NOT MEAN MUCH. There you have it.

Quoted in the article is Lou Fisher, Gene Healy of CATO, Eric Posner (a defender of Bush signing statements (.pdf)), Bruce Fein and Neil Kinkopf, OLC attorney for Bill Clinton and critic of Bush signing statements.

The thrust of the article is to figure out the meaning behind Obama's signing statement--first, did he break a campaign pledge and second, is he behaving like President Bush?

The writer, Dan Friedman, repeats the false claim that Obama's March 11 signing of the Omnibus spending bill is his "first signing statement." As I discussed in this post, it was the first time Obama issued a "constitutional" signing statement.

After he provides the background to the controversy, including Obama's memorandum explaining how the signing statement would be used, he gets to the experts. First up is Posner, who says that "signing statements have almost zero practical effect." Pointing to the GAO studies in 2006 and 2007, they found that signing statements have no influence over judges and in an examination of Bush's signing statement to approprations bills, and that in at least nine cases, the law was not executed as intended--but the GAO could not conclude that it was the signing statement that was the cause.

The author also underscores the minimal effects of the signing statement by pointing to a Bush signing statement in January 2008 that challenged, for instance, the creation of a "wartime contracting commission" that had members appointed by someone other than the president. As he notes, despite the challenge in the signing statement, the White House "quietly appointed the commission's members" and complied with the law as written. But it wasn't that simple, and the signing statement actually was an important catalyst. As I wrote here, the White House only allowed the Commission to go forward after it had met with congressional leaders to work out the specifics on what the Commission would do. Thus the challenge served as the impetus to further negotiations, bringing the Congress closer to the White House's position on the bill.

Thus what we should take from this article? The thrust is the signing statement really doesn't have that much effect on the execution of the law, but what effect it does have--at least when Obama uses it--should in no way be taken as a sign that the Bush administration's interpretation of power has returned. If they do not mean anything, then we should no longer concern ourselves with studying them. And if they are meaningful, then it should not matter that Obama is different from Bush.

Either way, this particular article is a muddy mess.

The Unitary Executive's Future

2009-03-22T10:02:00.002-04:00

One of the important legs of the unitary executive theory involves the president's influence over the regulatory process. Unitarians have long believed the president's role extends beyond simple oversight and is actually one where the president is involved in the decision making process (the promulgation of rules).

Since Reagan, each president has implicated itself into more areas of the bureaucracy than the preceding president. Reagan issued two key executive orders that made the Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs (OIRA) the "big kid on the block" when it comes to influence. OIRA became the eyes and ears of the White House, and no executive branch administrator issued rules without first consulting with it--even at times rejecting the influence of Congress, which is supposed to have shared responsibilities over the bureaucracy.

Clinton built upon the Reagan orders with an order of his own--Executive Order 12,866 continued to allow OIRA to influence the regulatory process and it extended the president's influence into the independent regulatory agencies--something Reagan and Bush had been rejected from doing. Clinton's order was issued in 1993, months after his inauguration, and with a Congress controlled by Democrats. Clinton was able to fall back on his order when the Republicans seized control of the Congress in 1995, using it as a fall back when his policies were rebuffed in the Congress (and to the chagrin of the Republicans). The Republicans attempted to blunt the influence of the president's order by adding the "Congressional Review Act of 1996" to a small business regulatory relief bill. The CRA is designed to allow the Congress to override a final regulation issued by an executive branch agency, but in reality is ineffective because it must be signed off by the president himself. In fact, the only override of a Clinton order that the Republicans pulled off happened with a midnight regulation issued when Clinton was leaving office, and was signed, enthusiastically, by President Bush.

As a demonstration of just how effective the Clinton order was, President Bush did not change it until 2007, when the Democrats regained control of the Congress following the 2006 midterms. On January 18, 2007, Bush signed Executive Order 13,422, titled "Further Amendment to Executive Order 12,866 on Regulatory Planning and Review." Technically this was an amendment to 12,866 and not a revocation. Most importantly, Bush's new order allowed the White House to place "minders" in the offices of the regulators themselves. These minders, called "Regulatory Policy Officers," have been in place since the Reagan orders, but outside of the agencies themselves. These individuals, called RPOs, were used as a go between the White House and the agencies, sending communication back and forth between the two. Now the RPOs would stand over the shoulders of the regulators, making what was abstract influence real influence.

Ten days after taking office, Obama revoked Bush's order with Executive Order 13,497, which restored the Clinton order as the guiding relationship between the White House and the executive branch. It also revoked Executive Order 13,258 (.pdf) which gave the vice president individual influence in the regulatory process, which was a sore point with open government groups who felt that the vice president--and in particular his chief of staff David Addington--were using the regulatory process as a fiefdom by which to make their own law (see this fine series of reporting by the "Washington Post").

Now here is where the unitary executive's future--at least this leg of it (since we know that the constitutional signing statement isn't going anywhere)--is in question. Obama's new order didn't just return the Clinton order and that was it--it temporarily puts the Clinton order into effect until a new regulatory order can be hammered out. And unlike the previous orders, Obama has asked for public comment on what this new order should look like.

The comments come from a variety of sources, although it appears that the deck is stacked in favor of those pushing for more transparency and for an end to the cost-benefit rationale built into the previous orders. There are a number of interesting comments and a few that are not worth a damn. If you are interested in this subject, I would encourage you to browse through the comments.

The question that remains centers on what role these comments will have in the final regulation. It could be that Obama invited public comments but will issue an order that does what he wants it to do anyway. Thus the public comments are a way to demonstrate his faithfulness to transparency without giving up the significant power the president has over the regulatory process. Or it could be a new era of transparency, where Obama synthesizes the best of the comments and builds them into an order that allows the public to monitor any influence over the development of final regulations--something that to date has remained in the shadows.

We sit and wait and wonder what future does the unitary executive have?

Obama and the Signing Statement

2009-03-15T17:53:00.000-04:00

There are a couple of things I want to mention regarding President Obama's recent signing statement. First of all, this signing statement is highlighted as Obama's "first" signing statement, when that is not true. It is only Obama's first signing statement to challenge the constitutionality of provisions within the bill. The downside of all the Bush signing statements is it drew attention away from the rhetorical signing statements--those where the president seeks to garner press attention for himself or important constituents. Legal scholars never seemed to give these much credit, but political scientists interested in the presidency have made the connections between presidential rhetoric and power.

The signing statement has always been defined (even before I began my work on them in 1996) as statements that a president makes upon the occasion of signing a bill into law. These statements may be public, private, or a tandem of public and private. If you look at the "Daily Digest of Presidential Documents," you will find two bills Obama signed in February meet the criteria of a public signing statement in ceremony form. The first one occurred when Obama signed the S-CHIP bill in early February. Here the President clearly wants to draw a distinction between himself and President Bush, who blocked a similar bill in the 110th Congress. He explains what the program is, what the new bill will do to benefit millions of children (including bringing in one child who will benefit), and then takes the opportunity to respond to critics as well as blessing the "bipartisan" nature of the bill.

At the bottom of the statement, the GPO has classified this as a bill signing (Categories: Bill Signings and Vetoes). Yet on the digest page, they list the signing under "Remarks." Some who study the signing statement pay only attention to the listing on the front page of the digest and look only for the category of bill signings. But it is undeniable that the S-CHIP signing is a public signing statement.

Next on the list is Obama's signing of the American Recovery and Reinvestment Act of 2009, also categorized under "Bill Signings and Vetoes." This is also a rhetorical signing statement, but not one signed under ceremonial purposes. Instead, must of the statement is amplified by the Office of the Press Secretary. Much of it reads like the signing of the S-CHIP and is designed to foster greater public attention of an administration in action.

But let's not lose sight of the public signing ceremony. It is a public statement the president makes upon the occasion of signing a bill into law, but for whatever reason, the White House wants to make sure the rhetorical importance of the signing is not lost. Some may disagree, but again, if you conduct a literature review of the signing statement prior to 2000, you will find a consistent definition where both the public and private statements are considered the same thing.

A second matter that relates to Obama's recent signing statement. First, you can now find the signing statement available on the White House website, which was not the case on Wednesday when it was signed. One of Obama's challenges dealt with communications with Congress. As I noted, this has been a consistent challenge from presidents who wish to funnel all communications through the White House before it goes to Congress. It seems that one other interpretation was made, and that the challenge was a way to weaken whistleblower protections.

Senator Charles Grassley (R. IA) sent a letter to Obama demanding to know what he meant by this challenge. Grassley claims that the statement is "alarming" and it goes back on his word from the campaign trail, which is a partisan shot. Obama never said he would not use the signing statement, only that he would not use it "like Bush." Only McCain said never never, never. But on the particular challenge, Grassley argued:

...you singled out sections 714(1)-(2) of H.R. 1105 which contains an appropriations rider that Congress has passed in various forms since 1997. This rider has been an important part of appropriations bills for a decade and it is a significant part of Congress' efforts to protect the rights of Federal Government employees to provide information to Congress. The rider states that no appropriation shall be available for the salary of any officer or employee of the Federal Government that "attempts or threatens to prohibit or prevent, any other officer of employee of the Federal Government from having any direct oral or written communication or contact with any Member, committee, or subcommittee of the Congress[.]"[4] This rider sends a powerful message to all agencies and Departments that any effort to block an employee from providing information to Congress will not be tolerated.
I am deeply concerned that the signing statement you issued will undermine this important whistleblower protection included in the Omnibus Appropriations Bill. Not only is your signing statement contrary to your campaign statements, it also goes beyond the traditional broad signing statements authored by previous Presidents. In specifically singling out this provision, you have gutted the legislative intent of this provision by stating that it does not "detract from [your] authority to direct the heads of executive departments to supervise, control, and correct employees' communications with Congress[.]" (emphasis added). This is a shocking statement that acknowledges that you would be willing to give an order preventing employee whistleblowers from making disclosures to Congress. I do not see how this statement can be reconciled with your campaign promise to protect whistleblowers. In fact, it is even more egregious than simply breaking a promise, because it actually restricts current and previously existing whistleblower protections.

Before you dismiss Grassley as a partisan hack, keep in mind that he took on the Bush administration back in 2002 when it attempted to weaken a whistleblower provision that was part of the Sarbanes-Oxley bill. Had it not been for the vigorous oversight by Grassley and Patrick Leahy (D.VT), Bush's interpretation may have stood (you can read about it in this 2005 paper I wrote).

While I am sure that Obama's challenge is not in the vein of the Bush administration, it does remain to be seen how he will respond to Grassley's challenge.

The Obama Signing Statement--More of the Same

2009-03-11T19:36:00.001-04:00

As I promised in my last post regarding Obama's position on signing statements, there would be a constitutional signing statement in the immediate future. Two days later (today, 3/11), Obama issued his first constitutional signing statement. First, a couple of words:

A constitutional signing statement is defined as any signing statement that contains one or more provisions that challenge the constitutionality of a section(s) of the law, or where the president needs to define or "interpret" a section(s) of the law.
For all of his candidate Obama's talk of transparency, their website is anything but. The Bush administration placed all of their signing statements on the "News" section of the White House webpage, listed day to day. In fact, toward the end, they were pretty good about putting the signing statement on the White House webpage and not in the "Weekly Compilation of Presidential Documents," where you would normally find signing statements. The current signing statement, taken from the "Boston Globe," who was good enough to provide a .pdf copy, says it came from the Office of the Press Secretary, yet every link on the White House webpage to the press secretary or any official statements do not contain a link to the signing statement. To me, that is not transparency.

Now, the signing statement. The signing statement is the spending bill that is getting attacked tonight on the national news because it contained earmarks, going against Obama's promise to combat "wasteful" earmarks (Jake Tapper: "...contained 9,000 earmarks despite his promise not to sign anything with earmarks" Then, cut to John McCain. Then at the end, mention that 40% of the earmarks come from Republicans.).

Officially, it is H.R. 1105, the "Omnibus Appropriations Act, 2009," and it has $410 billion in spending. And Obama breaks precedent with previous signing statements by not just drawing attention to the constitutional challenges, but also placing them up and front in lieu of 1) a description of the bill and 2) all the good things that it does.

Obama writes:

As I announced this past Monday, it is a legitimate constitutional function, and one that promotes the value of transparency, to indicate when a bill that is presented for Presidential signature includes provisions that are subject to
well-founded constitutional objections. The Department of Justice has advised that a small number of provisions of the bill raise constitutional concerns.

He then bulletpoints the challenges:

1) Foreign Affairs--he singles out 3 provisions that "unduly interfere with my constitutional authority in the area of foreign affairs" because they purport to tell him how he should proceed with negotiations with international organizations and foreign governments.
His response: He does not take them to mean he is limited in how he negotiates with any foreign body.
Effect? Congress can tell him "til the cows come home" what he should or should not do vis a vis foreigners, but at the end of the day, he will do what he wants.

2) United Nations Peacekeeping Missions--this one was a favorite of the Republican Congress when Clinton was in office. To make sure that our forces are never under the direction of a foreign body, the Congress places boilerplate language instructing the president that he cannot send armed forces to international organizations if they are likely to receive orders from these organizations. In this bill, Section 7050 of Division H forbids the president from doing just this.
His Response: Since this bill seems to constrain his Commander in Chief power as well as interfere with international agreements, he is left with rectifying the provision so it does not conflict with those two things.
Effect: It remains to be seen how this gets carried out because it is not clear what Obama claims he will do. Rather than saying: "I won't execute this provision" or "I won't execute this provision until Congress corrects it," Obama says this: "I will apply this provision consistent with my constitutional authority and responsibilities." I will leave you to divine the meaning.

3) Interference with the control of information. This is an automatic challenge of each president since Reagan. Congress consistently attempts to force executive branch agencies to provide information about how it is carrying out the law, and each president since Reagan wants all interbranch communication to be funneled in and out of the White House. In fact, this is a central tenet of the unitary executive theory (and reason to believe it is alive and well). Obama finds two provisions defective: Sections 714(1) and 714(2) in Division D of the bill. They 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." This is Congress's response to the unitary executive control over inferior executive officers. Congress has constitutional authority over appropriations, thus can say anyone receiving federal money cannot issue orders to bureaucrats telling them they cannot speak directly with Congress.
His Response: Despite what Congress says about its constitutional authority over appropriations, he is still the head of the executive branch, accountable for the actions of all inferior executive officers. Furthermore, some information is sensitive and needs to be approved before it is released. Hence:

"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."

In other words, to all executive branch employees, regardless of what the Congress demands, you are not to act until you have the approval of a representative from the White House (OMB).

4) Legislative Aggrandizements (committee approval, or "legislative vetoes"): In 1983, the Supreme Court found the legislative veto a violation of Bicameralism and the Presentments clause of the Constitution. What it does is condition the execution of the law upon post-enactment approval of a committee in Congress. Despite the Supreme Court decision, it has not stopped the Congress from using them AND from presidents objecting to them. This challenge seems to me to stand in clear violation of his promise in the memo to list the precise provisions under challenge. Instead, Obama starts: "Numerous provisions of the legislation purport to condition the authority of officers to spend or reallocate funds on the approval of congressional committees." Numerous provisions? In other words, do the work yourself--go through the bill and isolate any provision that seems to list a legislative veto. I thought we were done with this, and instead, were going to be given the specific location of the objection? Guess not. But wait, there is more. In addition to the "numerous provisions" listing, he also makes note of two extra provisions as problematic. He notes that "one other provision" allows congressional committees to establish guidelines for costs associated with security improvements in government buildings. And then, "Yet another provision" forces the Secretary of the Treasury to abide by the demands of a board that contains members of Congress or their staff. This is a different problem. This is a "hybrid" commission, meaning it mixes the executive and legislative functions (in this case).

His response: As to the "numerous provisions" complaint, Obama promises to try to inform Congress of the actions its going to take in advance, but in the end, the decision is his, not a committee of Congress. With respect to the provision that allows Congress to establish spending limit guidelines, Obama treats these as advisory. Sure, we will take it under consideration, but in the end, the decision is his. And then the "hybrid commission" problem, he will treat it as nonbinding. Let them recommend all they want, but it no one should take them seriously.

5) Recommendations violation--These also show up a lot in signing statements. Congress tries to tell executive branch agents what sorts of recommendations they need to make in future requests for money. Because the president may recommend legislation himself, this is seen as a violation of presidential prerogatives. Obama once again continues the practice of challenging such violations, and continues an irritating practice from his predecessors (and one that also violates his pledge of clarity). The problem with this challenge is similar to the legislative veto challenge from above. Instead, what he writes is that "Several provisions of the Act (including sections 211 and 224(b) of title II of Division I, and section 713 in Division A)" requires him or his agents to submit budget requests in specific forms to Congress. If you are going to the trouble of listing some of the problems, why not list them all? If you pledged to improve over your predecessor, then why not do just that? Instead it is left up to all of us to try to figure out what else is in violation. In the past when I have found language like this, quite often there are no other provisions than the ones listed. Thus you burn a lot of time chasing a ghost.
His response: Because the Constitution gives him the power to recommend, these provisions are "precatory" or merely advisory (precatory was a favorite of Clinton--most others preferred its cousin, hortatory).

And you may not have heard much about the signing statement on the nightly news, and before you jump to conclusions of liberal collusion, let me offer two alternatives. First, many covered the signing statement. But it was the public signing ceremony, which was dramatically different from the private written ceremony. Why the two? To confuse those who don't pay much attention to these things (like the press and Congress). It is another version of being distracted by one hand while the other hand robs you. And second, this constitutional signing statement did get a lot of coverage, but mostly in the printed press, like the Boston Globe. As of this moment, Google News shows over 3,200 articles on the bill signing, ranging from the traditional news to specialty publications to blogs. That is a lot of attention.

In conclusion, Obama did not disappoint. Like "Wild Bill" Hickock, in the HBO series "Deadwood" told a woman whose husband had been murdered by road agents, "Listen to the Thunder." The memo of two days ago being the thunder preceding the signing statement. What is disappointing however is the continuing practice of not being concise regarding the specific provisions under challenge, leaving in its place the general phrasing: "numerous provisions." We were told to expect better. I at least took him for his word.

The Mark of Cain and Meet the New Boss

2009-03-09T21:23:00.000-04:00

There are a couple of items of interest today regarding presidential power and the signing statement. The first is an article in today's New York Times that deals with the plight of George W. Bush's legal team. It appears that some are having trouble finding work, and others may never be able to leave the country.

International legal experts use a branding label called the "Mark of Cain," which is a term used for those in power who violate the human rights of their citizens. If the international legal regime is tight, it means that these people will forever be hunted until they are brought to justice. Thus they often become prisoners in their own country, for fear of leaving and then getting snatched by countries who are obliged by international law to bring them to justice--think for instance of Pinochet. This is the prospect facing folks like former OLC head John Yoo:

For more than four years, the Justice Department ethics office has been investigating his work and that of a few of his colleagues. A convicted terrorist has filed a lawsuit blaming Mr. Yoo for abuses he says he endured. Law students have led protests and the Berkeley City Council even passed a resolution in December calling for Mr. Yoo's prosecution for war crimes.

Yoo, and others, argue that this is unacceptable--that he is being wrongly persecuted for doing his job--for giving his client the advice he sought, particularly during an extraordinary time like the 9/11 attacks. And if he can be persecuted for this, what does this say for future presidents seeking the candid, if not extraordinary, legal advice of their legal counsel?

While that may be true, what is really at issue here is whether Yoo, Addington, and others gave their advice under the canopy of the Constitution, federal and international law, or whether they took advantage of the circumstances to advance a conservative legal theory out of step with the rest of the country?

I fall on the latter. For example, when Lincoln took the powers he did, he was always mindful of the Constitution and the laws--and mindful about how he would be judged in the future. Thus when the controversy ended, Lincoln asked the Congress and the courts to judge what he had done. In the case of the Bush legal team, there was no concern for either, thus they are reaping the seeds they sowed.

In the second, the issue of the signing statement has reared its ugly head once again. When Obama was on the campaign trail, he was careful, unlike McCain, to allow himself wiggle room on the use of the signing statement. Where McCain claimed he would never, under any circumstances, use the signing statement, Obama simply said that he would not use the signing statement as President Bush had. That's a loophole the size of the Pacific Ocean. Well, that loophole didn't get any smaller today in a memorandum issued by Obama to all Executive Branch agencies.

Obama outlines the history of the signing statement, and how it had been used carefully to "ensure that concerns about the constitutionality of discrete statutory provisions do not require a veto of the entire bill." But recently, that has changed. The past practice of using the signing statement to settle "policy disagreements" abused the sober history of this device, thus the need to outline how it will be used under Obama. This of course is a generous view of the history of the signing statement--Bush was not the first president to use the signing statement to settle policy differences. He was just the first to use them to such an extent that it raised public attention. And Bush did deviate in one major way from his predecessors--he began using the signing statement without grounding it in some part of the Constitution and without giving the Congress a clear ideal to what was specifically under challenge. That is an important difference that does merit the Bush administration criticism--not that he was somehow the first to use it.

So what is Obama's plan for the device? He lists four principles to which he will adhere:

The executive branch will take appropriate and timely steps, whenever practicable, to inform the Congress of its constitutional concerns about pending legislation. Such communication should facilitate the efforts of the executive branch and the Congress to work together to address these concerns during the legislative process, thus minimizing the number of occasions on which I am presented with an enrolled bill that may require a signing statement.
Because legislation enacted by the Congress comes with a presumption of constitutionality, I will strive to avoid the conclusion that any part of an enrolled bill is unconstitutional. In exercising my responsibility to determine whether a provision of an enrolled bill is unconstitutional, I will act with caution and restraint, based only on interpretations of the Constitution that are well-founded.
To promote transparency and accountability, I will ensure that signing statements identify my constitutional concerns about a statutory provision with sufficient specificity to make clear the nature and basis of the constitutional objection.
I will announce in signing statements that I will construe a statutory provision in a manner that avoids a constitutional problem only if that construction is a legitimate one.

I will take these point by point. In point 1, the principle he is claiming is not a new one. Recent presidents have maintained extensive communications with the Congress in an effort to shape the final bill the president receives--these communications can be found in things like SAPs, or Statements of Administration Policy, maintained at the OMB website (whitehouse.gov/omb). As my colleague Bryan Marshall and I have found, recent presidents use the signing statement in conjunction with SAPs to squeeze all they can from legislation, giving them final say over legislation. In point 2, legislation coming for the president's signature is presumed to be constitutional. But if you read on, that may be swell, but if the president determines part is unconstitutional, then he won't enforce it. So throw Congress a bone. We won't just assume you all don't know what you are doing down there. We will at least assume you know what the Constitution is all about, but that doesn't mean we will believe that once we actually read what you send. Seems insulting to me. Points 3 & 4 are a direct slam against the Bush administration. In point 3, if they do challenge a provision, they will "make clear the nature and basis of the constitutional objection." By 2005, the Bush administration had begun to make challenges without any constitutional grounding. And to follow that up, point 4 claims that he will only challenge if he can make a legitimate argument.

What follows is also interesting. In the memo, he informs all agencies that they are not to follow previous signing statements without first clearing it with the Attorney General--not their own counsels--but the AG. This actually brings up an interesting, and understudied, part of the signing statement, and one I briefly explored in my dissertation. A signing statement has a shelf life longer than the administration that issued it AND a president can reinterpret legislation signed by previous presidents--in essence, issue a signing statement post-facto. President H.W. Bush did this early in his administration with the policy of federal money and abortion--an action that led to the Supreme Court case Rust v Sullivan.

Either way, what is of big concern for those interested in the signing statement is that it is alive and well. What President Obama is doing is clearing the way for his use of the signing statement. Much the same as Clinton did in 1993, Obama is signaling that he will make use of the signing statement, with all due respect to the Congress, and not use like Bush. But use it he will!

The Solicitor General and the Unitary Executive

2009-02-10T19:08:00.000-05:00

The Senate Judiciary Committee heard testimony today from the two nominees to be Solicitor General and deputy SG in the Department of Justice. The SG is often regarded as the 10th Justice of the Supreme Court because of the ability to get the Supreme Court to take on a case when asked. The SG is the person who argues, on behalf of the United States, in the Supreme Court, and the person who supervises the prosecutors in the DoJ. If the Attorney General is the chief law enforcement officer of the US, then the SG is the chief prosecutor. In the last 25 years, this position also has been an important point person for carrying the president's political agenda in the federal courts and is often called the president's "spear carrier."

President Obama selected Elena Kagan, the current dean of Harvard Law, to be his SG. Kagan is a woman of incredible talent and intellect, and I have been very appreciative to her for taking the time to speak with me when I was working on my dissertation.

Kagan had previously served as a domestic policy advisor to President Clinton, and it was that experience that enabled her to witness presidential power up close and personal. And as a result of this experience, Kagan both documented and became sympathetic to the unitary executive theory and its practice during the Clinton administration. Her experience was reflected in a massive article that appeared in the Harvard Law Review in 2001 titled "Presidential Administration." Presidential administration is what she called the unitary executive theory, and the article has been an important link tying unitarian values across presidential administrations, including importantly a Democrat. Thus it is important to note that, despite the change in presidencies and all the rhetoric that implies, the DoJ remains solidly behind advancing presidential power according to the dictates of the unitary executive. An example of how little the DoJ has changed is captured in yesterday's Washington Post, which documents the Holder Justice Department's support for the State Secrets privilege.

For those of you interested in the support for the unitary executive in the Clinton administration, you may now have access to the 2001 article in HLR. The Senate Judiciary Committee has placed on its website all the documentation surrounding Kagan, which includes letters of support AND publications. You can find her article under the link, "Question 13.A.--Publications--Part 1. (.pdf required)"

Enjoy!

Pacifica Interview

2009-01-23T12:59:00.000-05:00

Flagrant self-promotion alert!

I gave an interview a couple of days ago with Mitch Jeserich, Washington D.C. reporter for Pacifica Radio. He focused his "Letters from Washington" update (mp.3) to the subject of presidential power in the Obama administration, and we spoke on the nature of unilateral powers and the unitary executive. My point: Nothing has gone away just because we have changed horses.

The Skinny on the Pardon

2009-01-17T23:20:00.001-05:00

The Federation of American Scientists Project on Government Secrecy sends out a secrecy newsletter from time to time that is chock full of great stuff. Among some of the better stuff is the public release of Congressional Research Service reports, which the Congress refuses to release to the taxpaying public.

Included in the Friday, January 16 newsletter was a recent CRS report on the pardon power, since it has received some attention recently due to a controversial pardon decision by the President a couple of weeks ago. As well as what potential pardons lay ahead as the President prepares to leave office on Tuesday (on that note, I encourage you, if you get the chance, to read Christopher Buckley's White House Mess. The opening is a classic--the president who has is leaving office decides he is not ready to leave come January 20).

But I digress. The recent pardon controversy involved President Bush withdrawing a pardon to someone who had just been given one. Days before Christmas, President Bush blanket pardoned 19 people, including one to Isaac R. Toussie, who was a real estate developer in New York City who plead guilty to mail fraud and using false documents in order to receive government insured mortgages. Toussie, who had just recently been released from prison, was technically not eligible for a pardon. He received one after a former Bush counselor by-passed the Department of Justice's Office of the Pardon Attorney and went directly to the White House to plead his case. A day after he had gotten his pardon, the White House revoked it after word got out that his father had just donated nearly $30,000 to the Republican National Committee for use in the 08 election cycle. The question on everyone's mind was whether a president could revoke a pardon, and if so, had it every been done before?

In walks the CRS. In a nine page report titled "An Overview of the Presidential Pardoning Power," Vanessa Burrows explains that on March 3, 1869--technically the last day of President Andrew Johnson's beleagured presidency--Johnson issued a pardon which was revoked three days later by incoming President Ulysses S. Grant. A district court in New York addressed the lawsuit by the person whose pardon had been revoked, and concluded that the pardon could be withdrawn because it had "not yet been delivered to the grantee, a person on his behalf, or to the official with exclusive custody and control over him." In the current case, the names of the individuals had been announced, but there had been no official contact between the administration and those receiving a pardon. All President Bush had done was to tell the Pardon Attorney to hold off on giving the pardon until more information could be obtained. It raises the specter that the pardon could still end up going through.

Magnum Opus

2009-01-14T12:41:00.001-05:00

Representative John Conyers (D. MI), chair of the House Judiciary Committee, has just issued a monster report, pulling together all of the Judiciary Committee's hearings on abuses in the Bush administration. Titled "Reining in the Imperial Presidency: Lessons and Recommendations Relating to the presidency of George W. Bush," it looks at various actions undertaken by the administration--from signing statements to National Security Letters--that it regards as abusive and urges the Obama administration to take note.

But be warned. It is not for the meek of heart. Coming in at just 500 pages, it has it all. I could complain that it refers to only research that has built on my research, but I won't. I did at least get a shout out as a "signing statement expert" (psst: it's on pg. 187).

More of The Last 100 Days

2009-01-06T22:50:00.002-05:00

In a 2005 issue of Presidential Studies Quarterly, political scientists William Howell and Ken Mayer focused our attention to the power exercised by "lame duck" presidents. The conventional wisdom said that a lame duck president is one who has lost his capacity to govern and to be effective. What Mayer and Howell asked, in a very insightful essay, was if you looked at the record of our most previous lame duck president--Bill Clinton--how could conventional wisdom be true? Clinton had relied on a number of unilateral devices in order to make policy even if the system believed him to be neutered. Howell and Mayer warned us that we should not count the "lame duck" out.

And if you have been paying attention to President George W. Bush's final days in office, you can see what the two scholars mean.

President Bush has been busy helping important constituencies and building a positive image for future historians to judge his presidency on.

For instance, Bush has continued the practice (although he publicly stated he wouldn't) of issuing "Midnight Regulations"--regulations issued in the final days of the presidency that sometime tie the hands of the incoming administration. When Clinton left office, he lowered the regulations surrounding the permissible levels of arsenic in our drinking water, thus sticking a thumb in the eye of the incoming Bush administration. When the Bush administration placed the regulation on hold (to "study" its effectiveness) and hinted that it would restore the pre-regulation levels, it was pilloried by the press and environmental groups for wanting to poison the water of our women and children! Eventually it had to back away from this plan and let the Clinton order stand.

Bush has allowed regulations to go forward that narrowly interpreted the Clean Air Act by allowing industry not listed in the original act (now decades old) to pollute without having to install costly equipment to clean up its emissions, it has also placed a hold on a regulation that would ban certain antibiotics in the food that our cattle are fed for fear that it lessens the efficacy of the antibiotic in humans, and it has intervened in a spat between the Fish and Wildlife Services and conservationists over the protection of the Northern Rocky Mountain gray wolf, which has been a protected species, to the chagrin of ranchers. The Bush administration has pushed the agency to delist it from protection even though a district court ruling ordered that it should remain protected. And in one dandy of a move, the Department of Homeland Security issued an interim final rule that prohibits the use of expired forms of identification as acceptable ID for foreigners applying for a job to work in the US. While the rule itself may sound sensible, it is the process that is at question and one that may establish a dangerous precedent. In formulating and issuing the rule, the DHS did not hold a public review and comment period as required by law. Instead, DHS relied on the public review and comments for a similar rule that did not go forward and was proposed--get this--in 1998. Ten years ago. As reported in ProPublica, "The public had an opportunity to comment back then--and the department says those comments were considered when writing this rule." Never mind that the DHS itself didn't exist back then.

If you wish to keep tabs on the Midnight Regs, ProPublica has a nifty chart tracking each regulation.

On the other side of unilateral policy making, the president has the ability to set aside huge swaths of land as protected national monuments. The means to do this comes by way of a law over one hundred years old.

In 1906, the Congress passed--and Teddy Roosevelt signed--the Antiquities Act--which allows the president to establish national monuments by proclamation. And as Howell and Mayer argue, once established, they "could not be 'diestablished' by a subsequent proclamation." The only way his action could be overturned was by assembling "the necessary majorities and supermajorities required to enact a law--a difficult feat indeed, given the multiple veto points and collective action problems that plague the legislative process."

Bill Clinton, on his way out the door, set aside millions of acres of land out in the western United States--prime development land--as protected federal property. Clinton also set aside protected territory under water--millions of acres--off the coast of Hawaii, which brings us to the Bush administration.

In an action that has to have come about because of concern over legacy, President Bush has extended protections to 355,000 square miles of islands, reefs, and atolls throughout the Pacific Ocean. As you might have expected, this has shocked environmentalists, who have done battle with the Bush administration all the way back to the polluter-friendly "Clear Skies Initiative" and beyond. You know something is wrong with the picture when President Bush is praised by the Environmental Defense Fund, which said of Bush's action: "The president has given the Earth a Texas-size gift." That's nice.

So don't count the president out. Just like his predecessor, he may stay busy right up to 11:59 a.m. January 20--exercising every bit of power as he did 12:01 p.m, January 20, 2001.

Eyeing Obama

2008-12-30T16:47:00.001-05:00

With three weeks left in Bush's term, there is a great deal of discussion regarding the nature of executive power--how it was wielded in Bush's term and how it may be wielded in Obama's administration. One article, appearing in the Los Angeles Daily Journal (sub. req.) discusses how President Obama will exercise presidential power--or more to the point--have we seen an end to the unitary executive? The reporter, Robert LaFolla, interviewed a number of scholars (including me) and pols for their take on the Obama administration My point was the unitary executive will survive into the next administration because it has been institutionalized as a result of more than 20 years worth of nurturing by Republican and Democratic presidents alike. Thus Obama will eventually turn to this "residium of power" when things start going bad for him--drop in public opinion, loss of control of Congress, hostile media coverage, etc. It seems to me to be a waste of time to discuss the unitary executive exclusively through the prism of the Bush administration. Granted, the Bush administration effected the theory in a number of ways--and clearly Obama may find it cost prohibitive to utilize--in the immediate sense--some of the more high profile tools to the theory (i.e. the signing statement), but in the end, Obama will behave like his predecessors. In fact, he should use the signing statement right off the bat to a piece of legislation that is not important. The signing statement should be purely rhetorical--get it over with. Once the furor dies down, then use the signing statement as it was designed--to control the legislation the president signs into law.

LaFolla's article also quotes other luminaries for their thoughts about presidential power in light of Bush--one of whom is Representative Jerold Nadler, a Democrat from New York, whose mindset reflects why most don't have a grasp of executive power. Nadler says, in only the way Nadler can say it:

"One of the things you're going to hear is, 'You don't have to worry now, Obama wouldn't [abuse power]. But that still leaves a loaded gun for the next jerk that's elected - and this country will elect another jerk. We have to get rid of these precedents before it happens again."

This is precisely the Republican mindset circa December 2000--that Clinton had openly abused the Constitution and "our guy" will never do that. The congressional position should be on heightened alert regardless who is in the White House.

Which brings me to the Huffington Post, and this posting by Peter Shane, a legal scholar and a member of the Carter Justice Department. Shane offers his recommendations on how Obama can stuff the executive "genie" back into the bottle, or in this case, back inside Article II. Shane, which should be no surprise coming from the Huffington Post, sees abuse of office only in terms of the Bush administration, which "embraced a double-barreled theory of presidential power"-where one barrel is "an assertion of unilateral presidential power in military and foreign affairs that is unprecedented in the breadth of its ambition to fend off congressional regulation and judicial oversight" and the other barrell? Why you guessed it--the "so-called 'unitary presidency' under which the President is entitled to exercise personally any or all policy discretion vested by Congress in any officer of the executive branch." It has almost become cliche to speak of the unitary executive in terms of the "so-called" unitary executive. And Shane's description of the theory really misses the target as to what the theory postulates--but that I will save for another time.

Shane targets specifically Bush's abuse of the signing statement, referring to his and UGA Law professor Neil Kinkopf's dataset on Bush signing statements. So what can be done to make sure this sort of abuse can't happen again? Shane urges Obama to issue an executive order, which to me seems like grounds for impeachment. But nonetheless, his proposed executive order has four sections that you can read for yourself. Here is what I find problematic. His first section reads as follows:

Except in the rarest of cases, the executive branch is constitutionally obligated to enforce the laws of the United States as enacted by Congress.

If you know anything about politics, you know a great deal of it is a result of mastering the art of definitions. Who gets to define "the rarest of cases?" What does that term mean? If the Congress were to accept this order, they would have done themselves a great disservice by allowing the president to neglect enforcement of the law because he determined it fell under a rare necessity.

Shane argues that this order would "demonstrate presidential vigor" (or unilateral disarmament) and would nail down three things:

[R]epudiating any claims for the legal force of signing statements, pledging allegiance to the executive branch's obligation to enforce the law, and promising transparency on those rare occasions when the president's obligations to the Constitution mean that a statute cannot be enforced consistent with our supreme national law.

First, this assumes that signing statements are inherently bad. I have argued elsewhere that they serve an important role in communicating to the executive branch agencies what the president believes the law means. And because the Congress is notorious for writing legislation that is incredibly vague, it leaves to the president the job of administering the law. This means putting meaning to word. If Shane and other critics of the signing statement find them so repugnant, then place the onus on the Congress to be clearer in the legislation it sends to the president. Also, the Congress is notorious for passing legislation that gives itself executive powers--from telling the president what he should recommend to the creation of hybrid executive agencies. Would this sort of thing constitute the "rare" instance where a signing statement would be appropriate? If so, then it is hard to criticize the thousands of challenges the Bush admininstration has made. The last recommendation I am not sure how to read? The president should be more transparent when he has to refuse enforcement of the law. Transparent how? Already the signing statement appears in a number of publicly available sites. Why not instead ask Congress why it cannot do a better job in monitoring the effects of the signing statement? There are already laws on the books that require the president to communicate to the Congress those instances when the laws are not being defended or enforced. The former has been on the books since 1978. And yet the Congress is clueless in he use of the signing statement? Why? Because the Congress is incapable of seeing past the nose on its collective face. How do we know? Well, the use of the signing statement first became controversial in 1986, when Reagan issued a number of challenges to the "Immigration Reform and Control Act of 1986." Among the outraged were Congressman Barney Frank and Senator Ted Kennedy, as well as Senator Patrick Leahy. And yet in 2006 they outraged anew in 2006--20 years after the fact--when President Bush was caught issuing his challenges.

I am all in favor of placing checks on the kinds of constitutional abuses in the Bush administration--but many were caused because they were encouraged by the Congress. Congress is the first instittution of government, and the one most capable to reign in an "imperial presidency." It is time that we start there when urging a reform to executive power.

Pardon Me, But WTF?

2008-12-25T23:54:00.001-05:00

It has been an exciting time for a scholar interested in the study of presidential power and the use of unusual actions, thus I say with a bit of sadness that I will miss George W. Bush when he leaves office in three weeks. I owe him a lot for making everyone with an Internet connection an expert on the presidential signing statement. And now, as he tip toes toward retirement, he dazzles us once again with an extraordinary action that has everyone up in arms.

Just as background for those not entirely clued in yet, President Bush issued a pardon to 19 individuals who committed a variety of federal offenses. This is typical for a president about to leave office. And the watch has been on as the Bush presidency winds down given the number of high profile folks (Scooter Libby) who have filed for a pardon.

A couple of important points first before I describe the fiasco that happened in as little as 24 hours. The president's power to pardon is absolute. It can be given by the president to anyone who crosses federal law, or may at some point in the future be in trouble with the law (Ford's pardon of Nixon, for instance). There is a process in place inside the Department of Justice's Office of the Pardon Attorney to streamline the thousands of requests for pardon, clemency, etc. that the president receives during his time in office. The process is also in place to give the whole transaction an air of propriety, to make sure that the president is not handing out pardons to the highest bidder, for example. But in the end, it is the president's decision to make.

The second important, and interrelated point, is this administration's desire to enhance and increase the powers of the presidency. If you have listened to Cheney's farewell tours recently, you have heard a great deal about ceding stronger powers to future presidents than those powers in existence during Bush's time in office. This meant keeping Congress out of Article II and apologizing to no one for actions--even extraordinary ones--taken by President Bush or Vice President Cheney.

Now the fiasco. On December 24, President Bush had staff (Press Secretary Dana Perino, to be exact) break the news that one of the pardons was coming back. Here is what Ms. Perino had to say about the grant given to "Mr. Isaac R. Toussie":

Based on information that has subsequently come to light, the President has directed the Pardon Attorney not to execute and deliver a Grant of Clemency to Mr. Toussie. The Pardon Attorney has not provided a recommendation on Mr. Toussie's case because it was filed less than five years from completion of his sentence. The President believes that the Pardon Attorney should have an opportunity to review this case before a decision on clemency is made.

Mr. Toussie was a one time a high dollar real-estate developer in New York who spent five months in 2003 in a federal jail for "using false documents to get federally insured mortgages" in 2001 and for fradulently "selling land to Suffolk County at twice the appraised value" in 2002.

What happened in the matter of just a couple of hours between the 23rd and 24th? Was it the red flag of granting a pardon to someone who jumped ahead of the line--ahead of individuals seeking pardons for offenses committed decades ago? No, not that. What came to light was information that Mr. Toussie's father, Robert Toussie, and his wife, Laura, had given a sizeable amount of money to Republican candidates and the Republican Party in the 2008 election cycle. This generated a great deal of heat (Bush may very well green light the pardon in the end, but if so, he should have taken a note from Clinton and granted the pardon as he was heading to the inaugural ceremonies), which caused the administration to look positively foolish. The White House pointed fingers at the Department of Justice while the Department of Justice pointed fingers at the White House. News reporters scrambled to find anyone who knew anything about pardons to get at an explanation of the process, but more importantly to provide answers to the all important question: Can a president do that? Can he publicly announce a pardon and then turn around and go back on his word? This gave 15 minutes of fame to obscure political scientists and legal scholars who have dedicated their lives to the Presidential Pardon (to you reporters who are reading, my money is on Dr. Mark Morris, whose very fine dissertation is pubicly available and is chock full of all sorts of goodies surrounding the Pardon).

While everyone is focusing on the trees, let me step back and talk a bit about the forest in this story. First, while it may have been helpful to have been a contributor to Republicans, the dollar amount at stake here is not really eyebrow raising. It isn't what we might think of when someone uses wealth to gain a foot in the door. So if money wasn't necessarily a primary factor in moving Toussie's application up the list, then what was it? I would shine the light on Toussie's attorney during this process. Mr. Toussie hired Brad Berenson, an attorney and partner at the prestigious DC law firm Sidley Austin LLP. For those who don't know Mr. Berenson, prior to his gig at Sidley Austin, he was an attorney in the White House Counselor's Office during President Bush's first term. Thus this particular decision was made inside the White House and outside the normal process in the DoJ. More than circumstantial evidence if you ask me.

The second "big picture" item of interest is how this particular action contradicts the Bushies stated goal of leaving the powers of the presidency in pristine shape. Recall that the power is absolute and a fairly awesome power in its own right. What has happened to this absolute power when the precedent gets set that a president will be forced to rescind because the public heat from the action has gotten too hot? What possible penalty does Bush face by riding the storm out? He can't be re-elected? Are we to believe that he is so caught up in his legacy that he may threaten presidential prerogatives because his actions may cause presidential historians to stroke their chins? If that is the case, I think there is sufficient evidence to invoke the 25th Amendment!

President Bush is similar to the Energizer Bunny--He just keeps giving and giving and giving....

Eyes Wide Shut, Cheney-Style

2008-12-21T20:15:00.002-05:00

Both President Bush and his faithful ward Dick Cheney have been on the media circuit in a series of "Farewell" interviews before they leave office in less than a month. While Bush's interviews have been mostly unrevealing and designed more to help frame the historical view of his presidency, Cheney's interviews continue to be illuminating for their "no holds barred" accounting of presidential power. The interview on the 19th with Fox News (and yes, characterizing it as an "interview" is probably being kind) is no exception (to read the transcript of Bush and Cheney's recent interviews, simply peruse the White House news page).

If you want full specification of the unitary theory (with a good bit of Nixon to boot), then look no further than this interview. Cheney is asked whether there are limits to the president's actions during a war, and Cheney frames his answer in terms of the president's "oath" powers:

"...when you take the oath of office on January 20th...as we did, you take the oath to support and defend and protect the Constitution of the United States against all enemies, foreign and domestic." In sum, when the president does it, it is legal. And who gets to decide whether it is legal or not? The president gets to decide it. Cheney declares: "...I think that what we've done has been totally consistent with what the Constitution provides for." How can he be sure? "What we did in this administration is to exert that [authority]...in a matter that I believe, and the lawyers that we looked to for advice believed, was fully consistent with the Constitution and with the laws of the land."

Which lawyers? Yoo and Addington? Yes. Goldsmith and Comey? Not so much.

To amplify the view that Congress has little control over the president's Commander in Chief powers--including the president's "War" power--Cheney brings up the extreme:

The President of the United States now for 50 years is followed at all times, 24 hours a day, by a military aide carrying a football that contains the nuclear codes that he would use and be authorized to use in the event of a nuclear attack on the United States. He could launch the kind of devastating attack the world has never seen. He doesn't have to check with anybody, he doesn't have to call the Congress, he doesn't have to check with the courts. He has that authority because of the nature of the world we live in. It's unfortunate, but I think we're perfectly appropriate to take the steps we have.

So because we decided decades ago that in the event--and an unlikely one at that--of a nuclear holocaust that the president would need unilateral discretion of a nuclear response, that means the Congress also agreed this meant the unilateral use of armed forces for any conflict the president--and the president alone--determined necessary? Cheney does recognize that his statement probably did not include the view of the Congress because he also brought up the War Powers Act, and only then to dismiss it. Cheney acknowledged that the War Powers Act was still in force, but then this:

No President has ever signed off on the proposition that the War Powers Act is constitutional. I would argue that it is, in fact, a violation of the Constitution; that it's an infringement on the President's authority as the Commander-in-Chief. It's never been resolved, but I think it's a very good example of a way in which Congress has tried to limit the President's authority and, frankly, can't.

The second half of the interview is just bad journalism--and what you would expect from Fox News interviewing either Bush or Cheney. Soft ball questions designed to enhance the administration's brilliance and demean its critics without any qualifications from the reporter. In particular the exchange about the right to hold those captured during the Global War on Terror indefinitely and without access to the regular courts. Little was said about Cheney's earlier claims that these people represented the "Worst of the Worst" and thus would prove a danger to national security if they had their day in court, which contradicted Cheney's claims in the interview that "hundreds" were released as a result of the review of their cases done administratively--something that was also forced on the Bush administration by the Courts.

I think sufficient evidence exists from the interview to suggest that Cheney is completely out of touch with the realities of the last couple of years. Chris Wallace, the interviewer, refers to a quote by Bruce Fein (which a number of other folks, including myself, have made) that argues that the administration has actually done a disservice to the power it sends forward to the new president by their actions, some of which have been knocked down by the Congress or the Supreme Court. This is in direct contradiction to their claims in 2001 to restore the power of the presidency that was so damaged following the resignation of Watergate. Cheney's reply is to deny that the several Supreme Court opinions dealing with the War on Terror, the loss of support in Congress following 2006, and the dreadful public opinion polls, not to mention heightend media and public attention to such obscure things like signing statements, means anything at all.

Eyes wide shut if ever there was such a case.

I Knew It

2008-12-02T17:23:00.001-05:00

For those who are social scientists who rely on government documents, you know how much credibility you have that the document speaks for itself--that the document has not been subject to revision once it has been published by the GPO. Go do your local university and pull out a government document from the government holdings, and you will find something that looks today exactly the way in looked when it was printed. And that has been the case up to the age of the Internet.

I worried some time ago, when the Bush administration had been caught editing a press briefing by Ari Fleischer (where he warned that those critical of the US need to "watch it") that the White House website was vulnerable in a way that previous White House documents weren't--that is, anyone inside the administration could "tweak" the official record to make themselves or their boss look better than they originally did. I was confirmed of this when I went looking for the transcript of a press briefing in 2002 regarding the administration's unusual definition of "bipartisan support" as it related to the Homeland Security debate--I had used the transcript in a class after it had been issued, and within a year I went back and it was gone. All I had now was a secondary account of the press briefing and not the transcript itself. I worried then about what was being omitted daily given how little attention was paid to the sanctity of the government document. Fortunately, someone has been paying attention, and I only hope that it gets wider attention than it has.

Scott Althaus, a political communications professor and Lalev Leetaru, both at the University of Illinois, Urbana-Champaign have conducted a study for the Cline Center for Democracy, also at UIUC, titled "Airbrushing History, American Style" that scratches the surface of this serious problem. They found, for example, that five White House press releases in 2003 relating to the listing of members of the "Coalition of the Willing" were presently not all available at the White House website, having been removed between 2004 and 2006. The press releases that were still available had been altered from their original form. Their conclusion:

These findings suggest a pattern of revision and removal from the public record that spans several years, from 2003 through at least 2005. Instead of issuing a series of revised lists with new dates, or maintaining an updated master list while preserving copies of the old ones, the White House removed original documents, altered them, and replaced them with backdated modifications that only appear to be originals.

It is clear that the pattern they found suggests that the alterations and scrubbing was deliberate.

It is important that what is put up on government servers stays pristine because this manipulation is tempting to whoever is in power, Republican or Democrat. Given how easy wikipedia and blog posting can be changed or altered, I fear a mindset exists that what appears on the web should not be taken as authoritative. What our elected officials say is important to us and future generations of researchers trying to cobble together the "public record." My hope is that this study opens the door to a larger investigation as to the seriousness of this problem.

An Open Letter to the President Elect

2008-11-07T11:14:00.001-05:00

Prior to the ratification of the 20th Amendment in 1933, when the candidate won an election, he didn't have to take office until March of the following year. Thus all the time in the world to prepare for taking over. That was then, this is now. Now, the candidate will run non-stop for two years or more for this job, will spend millions of dollars, and once the election has ended, will have no time to catch his breath before it is time to sit in the big chair. And what's worse, there is no longer a honeymoon whereby the new president gets time to learn the position before the system closes in. It used to be 6 months. Now it is 6 minutes. Shortly after taking the oath, President Obama will be held to the 100 day clock, started by FDR, and never repeated since. And he will have to begin to raise money for his second term and the 2012 election.

As bad as it sounds, President-elect Obama does not have to reinvent the wheel. There is a lot of material available that can help him "hit the ground running," as James Pfiffner described the Reagan administration in 1981, and not "hit the ground stumbling" as Stephen Hess described the Clinton administration in 1993.

First up is this "Transition memo" written by Stephen Hess, of the Brookings Institute, which serves as an appetizer, piquing the new president's interest enough to look deeper. His recommendations:

Resist the temptation to reorganize--there will be great pressures, as the candidate for change, to shake things up inside the Executive Branch. Hess warns this might invite more trouble than it is worth if not carefully thought through.
Resist the pressure to appoint friends to high places--All President-elect Obama need to read about this is the "Georgia Mafia" that Jimmy Carter brought with him on Inauguration Day 1977. Almost none had any ideal how things worked.
If you offer a job to someone and they resist or say no, best to leave it at that and not pressure them to take the job (one wonders if this is the case with the new chief of staff, Rahm Emanuel?). Hess refers to Paul O'Neill, Bush's pick as Treasury secretary. He provided a list of reasons why he should not be the Treasury secretary, and when he was sacked two years later, it was for those reasons.
Be certain you know the skeletons in the closets of your potential nominees, and even if you do your best to carefully vet and it appears that the nominee runs into trouble in the Senate, cut them loose rather than burning capital on a fight. Both Bush 41 and Clinton ran into trouble with high profile nominees who in the end were rejected by the Senate--for Bush 41 it was John Tower, the pick for Defense and for Clinton it was Zoe Baird.
Don't give major policy responsibility to someone who cannot be fired. Hess is refering here to health care reform in 1993, which Clinton handed to his wife and nearly doomed his presidency. Actually, when you compare Monica Lewinsky and impeachment to the health care reform disaster, it was the latter that came closest to ruining Clinton.

I would add a couple more things.

I would dig up and adapt the Heritage Foundation's Mandate for Leadership, which was written for the in-coming Reagan administration in 1981. Granted, Heritage is a conservative organization and Reagan was a conservative president, but the central message of the publication is bipartisan. Mandate urged Reagan to take control of the bureaucracy at the moment the Marine Band begins to play "Hail to the Chief" on January 20. Reagan's transition team was responsible for vetting any political appointee to make sure that he or she was a true believer. In fact, Pendelton James and Lyn Nofziger had a six point list to weed the good from the bad:

Are you a a Carter appointee? If so, you are gone.
Are you a Democrat who worked for Reagan? If so, you are gone.
Are you a Republican? Are you the best Republican for the job?
Are you a Ronald Reagan-George H.W. Bush supporter?
Did you work in the Reagan-Bush campaign? How early before the convention?
Are you the best qualified person for the job?

The "best qualified" question was the last question asked. It was more important to place the most dedicated partisan into important bureaucratic positions than placing the best qualified. Former Reagan attorney general Ed Meese argued:

We sought to ensure that all political appointees in the agencies were vetted through the White House personnel process, and to have a series of orientation seminars for all high-ranking officials on the various aspects of the Reagan program. We wanted our appointees to be the President's ambassadors to the agencies, not the other way around.

This is something that every president since Reagan has understood. Failure to gain early control over the bureaucratic process can lead to major problems down the road--bureaucratic inertia can be the death of any president, regardless of what his public approval numbers are.

The new president should also be cautioned not to jettison Bush's orders simply because they were his orders. For example, President Bush issued Executive Order 13,422 in early 2007 that gave the White House even greater leverage over the bureaucracy. 13,422 is an extension of several orders that began in the Reagan administration and were modified in the Clinton administration. This order both gives significant management authority to the Office of Management and Budget--the "enforcer" of the president's will in the bureaucracy--and it puts a set of eyes and ears in the form of "Regulatory Policy Officers" right into the key bureaucratic agencies. In the Reagan and Clinton administrations, where the president stood on an issue often was subtle--in the ether. Bush's order makes the president's wishes overt by putting his people right over the shoulders of these bureaucrats.

This leaves me with my final bit of advice. I know that you eschewed the use of the signing statement and other unilateral devices while on the campaign. That is fine. But now that you are getting ready to govern, it is time you take out the keys and open up the cabinet and learn what these devices do, because at some point you will need to use them. These devices include the signing statement, executive orders, presidential proclamations and memoranda, and each can be useful in securing political objectives that are either too contentious or not likely to be considered by the Congress. While the general public doesn't pay much attention to these things (unless of course you abuse them), specialized interest groups do, and you can get a lot of mileage by deploying them every so often.

Case in point. In 1996, President Clinton was unable to gain concessions on an environmental bill that was important to various environmental organizations that supported the administration. In a signing statement, President Clinton mentioned that he was disappointed that the Congress would not work with him on this important provision and would continue to work to gain concessions in future bills. One of the key environmental groups sent a letter to its members on the loss, but also in support of Clinton, who mentioned their cause in his signing statement. A little goes a long way. Take the current president. When he came to office in 2001, one of his important constituents was evangelicals, who had been pushing to gain access over the distribution of federal money that goes to charitable organizations. In every attempt by the congressional Republicans during the Clinton years was knocked down via veto threat or veto because Clinton believed it violated the First Amendment. Bush promised not just to release federal money to churches who do charity work, but also to create an "Office of Faith Based Initiatives" that would reach out from the White House to the religious communities. When he tried to get Congress to create such an office, he ran into a wall. Thus he turned to the executive order, and created an Office of Faith Based Initiatives over a week after taking office.

Thus I am sure Mr. Obama is getting alot of advice, and I would end by urging him to look to recent history to understand where potential landmines lay ahead. What happens in these first few months of his presidency can spell the different between success and failure.

Interesting Signing Statements

2008-10-17T20:20:00.001-04:00

The administration has been on a tear the past two weeks as the time runs out on the Bush presidency. First, on October 8, President Bush issued two separate signing statements to the same bill--HR 7081--which was the much anticipated bill regarding US nuclear cooperation with India. And this signing statement was as much anticipated as the bill itself was--for India.

Ever since the administration issued its signing statement two years ago to the first round of nuclear trade with India, which I blogged here, the Indian press has been keenly interested in the signing statement. Two years ago, the signing statement was used to mollify the Indian Government over what it felt was a violation of its sovereignty by the United States Congress, which placed all kinds of conditions for the deal to go through.

Thus when Secretary of State Rice was in India recently, her word that the new bill would meet with India's approval was not good enough--India required her to show them Bush's proposed signing statement before they were "basically OK with it."

President Bush issued two signing statements to the bill--the first, done in a formal signing ceremony--with a bipartisan contingent of congresspersons on hand, as well as representatives from the diplomatic corps and the press, and is designed to be as positive as possible about the good work at hand (what is interesting is the size of the gathering and the lack of significant press attention in the US). The second signing statement is addressed to the Indian government and is short and sweet--to paraphrase: "Despite what the Congress may have placed in riders, this bill will give you exactly what we promised." This is precisely what the Indian press picked up on, as this report in the Times of India confirms (see second paragraph).

Then on Tuesday the 14th, President Bush issued two different signing statements that have gotten the press in the US all in a bunch. The first is HR 928, the "Inspector General Reform Act of 2008" and the second is S. 3001, the "Duncan Hunter National Defense Authorization Act for FY 2009."

In the first, President Bush challenged two provisions of the bill: Section 6, which allows the Inspectors General to seek separate counsel if it chooses to do so. In this challenge, President Bush declares that ultimate interpretation of the law lies with the Attorney General (who is under the direct supervision of the Attorney General). The second is Section 8, which requires the Inspector General to transmit budget estimates--with specific criteria--to the President for his approval, which the president is then required to transmit to the Congress in his annual budget. In this challenge, President Bush argues that the power to recommend is the president's only, and Congress may not tell him what things he should or should not include in that request (although the Congress normally places ample pressure on the president to get him to give them what they want).

In the second, President Bush issued four separate challenges to the bill, and an additional challenge that remains vague. Also, the reasons for disagreement remain mysterious as Bush dumps them together: Bush writes, "Provisions of the Act, including sections 851, 901, 1211(2), and 1508(b), 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 conduct diplomatic negotiations, to supervise the executive branch, to appoint officers of the United States, and to execute his authority as Commander in Chief." And then the best one of all: "The executive branch shall continue to construe such provisions in a manner consistent with the constitutional authority and obligations of the President." Which ones again?

And then today, President Bush issued a public signing statement to commemorate the signing of HR 7222, the "Andean Trade Preference Act Extension," which was signed in Room 350 of the Eisenhower Building, a room used when the White House wants a lot of press attention. This is a great signing ceremony not because it is accompanied with lots of pictures (including the picture of the signing desk, with the sign "Opportunities Through Trade"), but because the person doing the transcription had to correct, and make note of, an error in Bush's language. President Bush, in explaining the bill, called it the "Andea Trade Preference Act", which the transcriptionist had to add, the "Andea (sic) Trade Preference Act"--it should have been the "Andean Trade Preference Act." As far as I can remember, this is a first.

Unitary Executive, Presidential Unilateralism, Presidential Administration

2008-10-11T23:16:00.001-04:00

Professor Dana Nelson, a faculty member in the English Department at Vanderbilt University, has written an OpEd piece in today's LA Times titled "The 'Unitary Executive' Question." And true to the title, it leaves the reader with more questions than answers.

What provoked the article was Senator Biden's use of the term during his debate with Governor Palin in regards to his characterization of vice president Cheney as the "most dangerous vice president we've had...in American history..."

Dr. Nelson proceeds to describe the theory in the familiar terms of its critics ("dangerous", "so-called", etc.), and while she does acknowledge that it has been embraced by Democrat and Republican alike, this is an article about Republicans and the current Bush administration's use of the theory. Here are my problems with the article:

1. In the years that followed, (the) Heritage Foundation and (the) Federalist Society conservatives worked to provide a constitutional cover for this theory, producing thousands of pages in the 1990s claiming--often erroneously and misleadingly--that the framers themselves had intended this model for the office of the presidency.

We do not know what she claims is misleading or erroneous. The founding fathers clearly were in support of a unitary executive--the debates produced a resolution for a plural presidency--a three person executive board that would need a vote of 2 of 3 executive officers for bills to be signed into law--and rejected it in favor of a single president--a unitary presidency. In fact, Hamilton argues in "Federalist 70" that the "ingredients which constitute energy in the executive are unity; duration; an adequate provision for its support; and competent powers." Now she is correct that some of the theory's more dedicated proponents attempt to make the case that the aggressive unilateralism that has come to define the actions of contemporary presidents has been there since day one. It is here that these proponents of the unitary executive attempt to fit square pegs in round holes (and even though there is little support for this contention, they still manage to get published in some of our finer academic publishing institutions, such as Yale University Press).

2. Unitarians (for lack of a better word) want to expand the many existing uncheckable executive powers--such as executive orders, decrees, memorandums, proclamations, national security directives and legislative signing statements--that already allow presidents to enact a good deal of foreign and domestic policy without aid, interference or consent from Congress.

This ideal that there is no recourse for the Congress, the courts, or the public comes from the fact that President Bush pushed executive orders, signing statements, proclamations, and the like with the complete agreement and support, from 2002-2006, of the United States Congress. Because the Congress refused to question the actions of the Bush administration is not the same thing as saying these actions are uncheckable or unreviewable. But even with a complicit Congress and seemingly complicit Supreme Court, there were moments when they did say enough was enough. For instance, when President Bush attempted to gut the meaning of an important provision in Sarbanes-Oxley, Senators Patrick Leahy (D.VT) and Charles Grassley (R. IA) hounded the administration to the point of forcing them to back down (see this paper for the complete explanation of the incident). And I might be wrong about this, but weren't the military tribunals created by Bush via an order struck down in the Supreme Court decision Hamdan v Rumsfeld? Furthermore, since the Democrats have taken over control of the Congress, the Bush administration has issued just 18 signing statements with just 17 challenges.

3. Dr. Nelson's argument contains contradictions. For instance, when writing about the dangers of the unitary executive, she describes how it allows the president to have undivided presidential control of the executive branch and its agencies..., and yet midway through the article, she blames Congress for handing to the executive branch, during times of crisis, unchecked power: Congress has granted unprecendented powers to the executive and to an unelected and unaccountable secretary of the Treasury. Which is it? Either recent presidents, and their support for the unitary executive, have enabled them to seize control over the executive branch agencies or the executive branch agencies are "accountable to none"?

Conclusion

I think that Dr. Nelson could have made better use of the space provided to her to theorize about which unitary executive is likely to emerge in the future:

1) The one that has been developed as a defensive strategy to protect the powers and policies of the presidency, which moves incrementally so not to arouse those outside the executive branch, and also abides by the norms and routines surrounding unilateralism. For example, there was a process in place for the signing statement. An enrolled bill would go to two places once it was accepted by the White House. First, the OMB circulated a copy to the affected agencies, who could recommend presidential action and ask for language to be added to a signing statement. Also, a copy went to the OLC, which scrutinized it carefully for anything that might negatively effect the constitutional protections for the presidency or for individuals. OLC would send their recommendations to OMB, which would compile all the information together, including a draft signing statement, for the president's consideration. Second, it went to the White House for the president's consideration. His advisors would consider the draft signing statement in light of the compromises the president had made with Congress or interest groups, and then strike some things out or add additional language.

2) The one developed in the Bush administration that is primarily an offensive theory about restoring the presidency to some mythological "king-on-his-royal throne" that existed in the days before Watergate. This unitary executive theory does not seem to care about the long range effects of contemporary action--for instance, the high profile of both the signing statement and the unitary executive theory. These things are regarded as obscure for a reason. What the Bush administration has done is to use the veil of the unitary executive to hide pure unilateralism in the name of politics. Thus with regards to the signing statement, the process that has been in place and worked so well since Reagan has been completely up-ended. For one, when the president makes a challenge in the signing statement, he refuses to explain to anyone exactly what he is objecting to or the constitutional reasons for the objection. For two, the signing statement process itself has been augmented in a negative way. Not only does a bill go to OMB and OLC on its way to the White House, but now it also veers off to the vice president's office, where a "red pen" eviscerates the bill, including provisions that have been carefully negotiated with the Congress, such as the famous case of the signing of the 2005 detainee treatment bill.

I am currently working on an article to be published early next year in a journal that makes this point about the two versions of the unitary executive theory which builds on this fine article by Dean Harold J. Krent, which argues that it is not unitarian values that are being pushed by President Bush, but rather naked unilateralism.

The way the administration has pushed unilateral action in open defiance of the Constitution explains why there have been such high profile defections by leading conservative scholars, such as Jack Goldsmith, Steven Calabresi, Doug Kmiec, and others. Thus it remains to be seen whether the administration has not just set back the cause of restoring the powers of the presidency (despite their open commitments to leave the institution in better shape than they found it), but also whether it has killed the unitary executive. The term has become so polarized and poisoned that it may be in the best interest of any future president to call their defense of signing statements, executive orders, and the like by some other name. The Clinton administration called the unitary executive presidential administration. That just doesn't have the same punch, but it may be what we are talking about a year from now.

President Obtuse

2008-10-05T20:58:00.001-04:00

There are three things in common with the signing statements President Bush issues that challenges the constitutionality of the bill he signs into law in the last two years of his presidency: The first is how few challenges he has issued. This was a president that cranked out over 1100 challenges in his first six years in office. In his final two years, he has issued just 12! Second, he has dropped his complaint that a bill violates his ability to supervise the unitary executive branch, declaring now that they violate his ability to supervise the executive branch. And third, his challenges are so vague that it is impossible to keep an accurate account or to get a clear ideal of why he is objecting to the provision(s), or even what constitutional prerogative is being violated.

President Bush issued his 168th signing statement on September 30th (#169 came on October 1), and his 1,162nd constitutional objection. And true to form, I can only count the objection as one because it is simply impossible to ascertain just how many provisions are at hand.

President Bush signed a continuing resolution that funded defense and homeland security, as well as lifted the ban on drilling at the Outer Continental Shelf, though he noted his disappointment that this was a "long-term continuing resolution" and not an appropriation. In the last paragraph, President Bush writes:

Finally, this legislation contains certain provisions similar to those found in prior appropriations bills passed by the Congress that might be construed to be inconsistent with my Constitutional responsibilities. To avoid such potential infirmities, the executive branch will interpret and construe such provisions in the same manner as I have previously stated in regard to similar provisions.

This is the mark of David Addington, by the way. Addington has inserted himself into the enrolled bill process, giving his office gatekeeping responsibility over legislation that comes to the president's desk for signature. Addington has insisted on reviewing all legislation before the president sees it, and even the power to rescind compromises the White House makes with the Congress, no matter how much time and energy went into forging the agreement in the first place (the infamous signing statement to the Detainee Treatment Act on December 30, 2005 was the work of David Addington).

Addington has special glee frustrating anyone wishing to look over the shoulder of the White House, and after the signing statement became a public controversy in 2006, he has made the constitutional signing statement more and more obtuse. And this particular signing statement is a classic example. The bill might be inconsistent with Constitutional responsibilities and to avoid this, these provisions will be construed in the same manner as I have previously stated in regard to similar provisions.

Thanks for clearing that up.

The Signing Statement Revisited

2008-08-20T21:59:00.001-04:00

The House Armed Services Committee (HASC) recently released a report on its findings regarding the Bush administration's use of the presidential signing statement--although one could argue that it is too little, too late--the Bush administration has all but abandoned the signing statement as its preferred device to control policy. Since the Democrats have taken control of the Congress in 2007, the administration has issued just nine statements, and from this nine have challenged a paltry 16 provisions of law. In 2006 alone, the administration issued a total of 28 signing statements with 201 challenges!

The HASC Subcommittee on Oversight and Investigations held hearings regarding the signing statement to the National Defense Authorization act--a bill that had been vetoed and then, after fast tracking it for passage, the administration worked out all the problems with the Congress, only to then single out a number of provisions as constitutionally defective. One of those provisions was the "Commission on Wartime Contracting," created to investigate war profiteering by US contractors.

The Committee made five findings:

* The signing statement President Bush added to the authorization bill claimed there were defective provisions, and implied they were defective for the same reasons of past bills, and then did little to claim what he would do. Actually, if they wanted to gripe about a challenge that said nothing, then they should have cited the signing statement to the "Consolidated Appropriations Act" of 2008. There, Bush declared:

Finally, this legislation contains certain provisions similar to those found in prior appropriations bills passed by the Congress that might be construed to be inconsistent with my Constitutional responsibilities. To avoid such potential infirmities, the executive branch will interpret and construe such provisions in the same manner as I have previously stated in regard to similar provisions.

If you were wondering, "what is he talking about," you would be in the same boat with the rest of us. The fact of the matter, since the signing statement made its official debut in 2006, the administration has responded to all the public interest by making more difficult to track what it is doing. There is the vague statements that leave out what the objection is about and what he intends to do about it. And, for those interested in the unitary executive, you will be sad to learn that it has disappeared from the public pronouncements of the Bush administration. Where it once was a part of every challenge the president issued ("...and to supervise the unitary executive branch") it has gone MIA. Now, when there is a challenge, the president simply states "...and to supervise the executive branch."

* Presidents have "issued signing statements for quite some time,[while] this President has issued a significantly larger percentage of signing statements challenging or objecting to various provisions of law."

This is priceless. Is the Congress saying that a signing statement that contains challenges claiming provisions are defunct is OK so long as it doesn't happen all the time? If ever a report showed a partisan tinge, it is in this claim. "We, the Democrats, do not object to the use of the signing statement. We simply object to the way that President Bush has used them."

The fact of the matter is, the members of the Subcommittee haven't the foggiest ideal how the signing statement has been used in the past.

* The signing statement may actually "serve a legitimate function as a tool for continuing dialogue between the President, Congress, and the public. On the other hand, signing stateents may be a mechanism to expand executive authority at the expense of the legislature."

It is funny that they claim a legitimate role for the signing statement in a report that is so damning. The reason it is funny--or perhaps ironic-is because this particular signing statement played the role they praise. President Bush objected to the "Commission on Wartime Contracting," which is section 841 of the bill. In particular, the bill would allow for half the members to be chosen by Democrats and Republicans in Congress. Bush objected to this particular provision because it violated his appointment powers, vested to him by Article II of the Constitution. In essence, Bush and his Republican allies in Congress could have prevented this Commission from ever having one meeting by withholding their appointees. Instead, they used that challenge as a starting point in negotiations with congressional Democrats over the scope of the Commission's investigations and what access to information it would have. Thus the signing statement challenge essentially places a second track onto the legislative process that starts with the president and ends with a compromise between the Congress and the president, leading to execution of the law. There is nothing new here. This is the role that the signing statement has played in the past, and it is a useful role. The congressional Democrats praise it, but do not praise the role it played regarding this particular signing statement.

* The signing statement can provide a "roadmap" which demonstrates which provisions "merit a higher degree of oversight as it tracks implementation."

In essence, the president needs to be clear what provisions he finds constitutionally troubling so that the Congress can decide which actions to take. But first, it needs to be certain that the president is executing the law as the Congress intended, because if he isn't, then the Congress needs to decide what actions it needs to take, from remedying the provision to suing the president in Federal Court.

* Because the Congress does not understand how President Bush has used the signing statement, it is unsure exactly how to respond to it.

The authors note that there are several various pieces of legislation dealing with the signing statement, some of which are redundant. Yet no one is certain which piece will do the trick. The Committee also refers to the law that requires the administration to inform Congress whenever it refuses to execute the law. It claims this also extends to the military and the executive branch agencies--they are to inform Congress whenever they are ordered to refuse execution of the law.

As I have noted before, this law built upon a law passed in 1978 that required the administration to inform Congress whenever it decide not to defend a defective law. In 2002, the Congress added on to that by requiring the administration to also inform Congress whenever it refused to defend or execute the law. As I have noted elsewhere (and something this Committee overlooks), I had a FOIA request answered regarding this very question. I sent a FOIA to the Bush DOJ asking them to send me any communication they had with Congress regarding this law, and they sent me a list of laws that were either not defended or executed, but the list was from the Clinton administration.

In the signing statement to the 2002 law, the administration refused to recognize the demand by the Congress, and the information they sent me void of any challenges they had made demonstrates that they have made good on that particular challenge. Yet Congress has done nothing to determine why this has happened.

The report ends with "Ongoing Actions," which really isn't much. There are three actions, which includes more monitoring and continued study. Number two, however, is interesting if they actually see it through. Action #2 states that they "may" (and the operative word is "may") "task the GAO to conduct a study of National Defense Authorization Acts, or other laws within HASC jurisdiction..." If you look at bills that consistently receive a signing statement, then the "National Defense Authorization Acts" consistently receive challenges from signing statements regardless of president. It was the NDAA bills where Clinton ended up in a firefight with Congress from 1999 to the moment he left office. In 1999, the Congress attempted to create a layer inside the Department of Energy that was out of the control of the president. Clinton first disregarded the law and placed his own Secretary of Energy into the position, and then when he worked out an agreement with the Congress to allow the new layer to go into place, he got into another fight in 2000 over how this person could be removed from office. Congress said the person could only be removed for such things as malfeascence in office or neglect of duty, and Clinton defined neglect of duty as "a failure to follow the lawful directives of the President."

It is a shame that the HASC didn't attempt to sample the research that has been done on the signing statement. If it had, it would have been able to answer some of the questions that it had during the hearings and in this report. That said, it is great to see that there is interest in the presidential signing statement. The "proof in the pudding" moment will come if the Congress maintains its interest once the Bush administration leaves office.

Heads Up

2008-08-11T21:53:00.000-04:00

For those of you interested in issues of presidential power, in particular presidential power after Bush, then there is a conference just for you.

UC Berkeley is holding a conference, titled "The American Presidency at War," that will cover a number of topics that are currently prescient. And they have a slate of participants from all the best schools (save Miami University, which I am sure is not an oversight on their part).

They cover the Imperial Presidency, which has, as a panelist, John Yoo from Berkeley Law School--which I assume he will attend since it is in his own backyard but I wouldn't hold my breath given he has a tendency to blow off these things at the last minute.

They also have a panel--actually a "Roundtable Discussion," on "Rethinking Presidential Power in the 21st Century" that features Stephen Skowronek (who has his own view of presidential power) as well as William Howell, who also has his own view of presidential power based in rational actor theory.

What you won't find anywhere in the list is a unitarian. A scholar who is a proponent of the unitary executive theory and what it means to presidential power in the 21st century. Yoo is not a unitarian--I would say he gave up his right to call himself that based upon his behavior in the Bush administration, where he forced legal reasoning to meet political ends--and while there are many who say that is just what a unitarian is, it isn't. Not close. In fact, ask one of the father's of the theory--Steve Calabresi--what he thinks about Yoo and his practice, and he will tell you the same thing.

It is actually a shame that there isn't someone representing--honestly--the theory at this conference because I am positive that it will be a part of every panel. And every panel will have a discussion that paints the unitary executive theory as the imperial presidency or as fascism in disguise. And there will be a cause celebre collectively that the Bush administration's days are numbered, and with it, the unitary executive theory.

But you and I know better.

Time To Step Up

2008-07-29T23:38:00.002-04:00

My friend Louis Fisher, Specialist in Constitutional Law to the Law Library at the Library of Congress, has penned an article for the "Legal Times (sub. req.)" attacking the plan offered up by former secretaries of state James Baker III (under Bush I) and Warren Christopher (under Bill Clinton) to overhaul the War Powers Act of 1973 (which has never worked).

The two came together at the Miller Center at the University of Virginia as part of the "National War Powers Commission" in order to develop a "bipartisan" approach to rectify how America goes to war. Their plan, which would ideally be packaged in the "War Powers Consultation Act of 2009," and would:

Force the president to consult with Congress before sending American troops into "significant armed conflict," an example of which combat operations lasting more than one week;

Establish yet another ad hoc committee between the House and Senate of leaders from both parties; and

Requires Congress to act on a presidential request by voting up or down within 30 days.

If you are familiar with the War Powers Act, then it should be easy to see how much of a failure this new law would be. Which is where Fisher comes in.

Fisher argues that the "report falls short in either offering a practical solution to the war powers debate or protecting the rule of constitutional law. As for giving respect to the three branches, the proposed War Powers Consultation Act heavily favors the executive branch." Fisher first discusses how the report, and supporters of the power of the president to wage war, distorts and destroys the work by the Founders while also taking out of context the words of prominent jurists like John Marshall--in fact, this is a similar line of attack that can be found in political scientist James Pfiffner's new book, Power Play. But to be honest, I have never been a fan of exercises such as these--arguing what the Founders did or did not think. The fact of the matter is we currently have a president with powers that extend far beyond what anyone would have imagined in the 17th or 18th centuries.

Instead, Fisher makes two compelling arguments in the present against this proposal: the establishment of another congressional committee and the prerogative of doing nothing.

Baker and Christopher urge the establishment of a "consultative committee" that is made up of the speaker of the House, the Senate majority leader, the House and Senate minority leaders, and the chair and ranking members of eight different committees. This would give Congress "access to intelligence and a full time staff for studying national security issues," but Fisher argues in reality it would "give a mere handful of members access to intelligence and staff, quite likely with the admonition not to share sensitive information with anyone else." But if history is any guide (like the "Gang of Eight" on intelligence issues), these sorts of committees end up being "at the mercy of executive officials who" decide what information they are willing to share. Furthermore, these committee members were forbidden from taking notes, speaking with their colleagues or staff, or seeking independent verification of the information they were told. Fisher argues that "Congress should not make the same mistake and transfer its war power to a small subgroup of legislators. The war power belongs to the institution as a whole, including its most junior members (emphasis added)."

The second problem is Congress is required to take action on a president's request to use force. The new law would require Congress to vote on a concurrent resolution (which must be passed by both houses but is not sent to the president for his signature). If the concurrent resolution is not passed, Congress could then put together a joint resolution of disapproval, which does go to the president for his signature. Fisher argues that first, Congress should not have to vote twice to make the point that it does not want war, and second, that the joint resolution could be vetoed by the president, thus forcing Congress do muster the 2/3 majority to override the veto. As others pointed out, in today's era of high political polarization, it is going to be difficult for Congress to ever get the numbers to override. But I think more to the point, as Fisher aptly points out, this scenario places the war power in the hands of the president, and not the Congress. The president goes to Congress to ask its approval to commit forces into significant armed conflict, and then Congress may or may not approve. This flies in the face of the Constitution, where the war power is firmly grounded in Article I. Thus the Congress has every right under its prerogatives not to act.

But there is nothing unconstitutional about Congress controlling its prerogatives by doing nothing. If the president submits a proposal to use military force and Congress ignores it, if the president requests funds to start or continue a war and Congress provides none, then Congress has decided. No offensive actions are allowed.

And that is precisely right. It is no mystery how this special commission came to the conclusion that the war power can only be tempered when Congress gets into the business of signing off on the committal of US forces--this has every mark of Secretary Baker, who was first part of the Reagan administration and the mantra that success only happens when a powerful presidency is restored. Fisher admonishes this thinking, and consistent with nearly everything he has written in the past, demands that Congress assert itself as the "First Branch" of government--to jealously guard its prerogatives in the way that the president guards his. Only then will the use of force come back into the constitutional fold in the way the Founders believed it to be. But given the successive string of terrible congresses we have gotten going back to the 107th, it isn't likely to happen anytime soon.

House Judiciary Committee

2008-07-25T12:51:00.002-04:00

The House Judiciary Committee is holding another round of hearings on executive power and the Bush administration. For the most part, the same cast of characters have been brought in to say the same predictable things.

I am not going to complain, yet again, the consistent omission from these hearings of a political science who studies presidential power. The panelists was stacked with lawyers. And if they were not lawyers, they were the head of some cause group. I continue to wonder why the Congress wishes to leave out an important perspective on presidential power?

That said, the Democrats continue to try to screw up their electoral chances by bringing to the front individuals with whom most thinking persons in the heartland would find crazy. Case in point. Chairman John Conyers (D. MI) invited Vincent Bugliosi, whose claim to fame was the prosecutor of Charles Manson (and do we really need to praise his skills in that case since it would have taken a moron not to convict Manson), to testify as he has written a book with the low key title, "The Prosecution of George W. Bush for Murder." Or former member of Congress Elizabeth Holtzman, who left the Congress in 1981 (!), recommending her book (for all its goodies), "The Impeachment of George W. Bush." If Joe or Jane Lunchbox were to tune into C-SPAN at the moment, they would find these people hysterics and would make the connection that they were testifying to Congress at the invitation of the Democrats. If you get the chance, check out Jeremy Rabkin's nonplussed testimony at what he was hearing by his fellow panelists, which he implored to keep in mind the America that is outside the Beltway Bubble.

Midnight Regulations

2008-07-20T13:17:00.003-04:00

Mainstream political science on the issue of presidential power tells us that the president is more powerful at the beginning of his presidency than at the end of his time in office. Power to these folks can be measured in what the occupant brings to the table--his own power to get his opponents (and allies) to do what he wants them to do. Thus there are times when the president has more leverage over the opposition (think President Bush in the immediate days and weeks following 9/11) and there will be times when the president is at the short end of the imbalance (think President Bush in the last days and weeks).

When we deal with a two term president like Reagan, Clinton, and now Bush, once that last midterm is passed all eyes start looking to the next president. And in that last year, the president gets hung with the label "lame duck," unable to move anything through the Congress (especially when it is held by the opposition party) or to move the public to follow him in his cause. This is how political scientists William Howell and Kenneth Mayer described the president once the election for the next president is held:

The moment the public boots him from office, the president's promises turn hollow, his threats idle, his political capital effete. As there is little presidents can do for those who occupy other parts of the federal government, there is little reason for them to expend much effort, or time, advancing his agenda. The president's capacity to negotiate, broker deals, and ultimately persuade is, at last, depleted.

But yet the president continues to push his policy and he continues to defend and advance the powers of his office. In a 2005 study in Presidential Studies Quarterly, Howell and Mayer looked at the final days of a president who has either lost a re-election bid or is a two term president on his way out, and they found great evidence of a president still exercising tremendous power. They looked at President Clinton, who used executive orders to advance environmental policy and proclamations to take millions of acres of private land in the Southwest and make them public, much to the ire of ranchers and developers. Both look at the Federal Register, where all administrative rules are published, and find that in those final days, the number of pages in the Register increase rather than decrease, providing evidence of a president still vigorously pushing his policy administratively rather than legislatively.

The Mercatus Center at George Mason released a study this year confirming the findings by Howell and Mayer. The term for the flurry of administrative rules is "Midnight Regulations" taken after the "Midnight Judges" of the Adams administration in 1801. The term "Midnight Regulations" was invented to describe what President Carter accomplished right before leaving office in 1981. Carter set a record for number of pages printed in the Register which stood until Clinton, who "published more than 26,000 pages" in just the final three months of his presidency.

These are important for two reasons. First, they often tie the hands of the incoming president who ends up stuck with these decisions. For instance, when Bush came into office in 2001, he attempted to undue the environmental policy changes made by President Clinton and found that he would expend all of his energy from his other policy promises and still not undue the regulation. In fact, the Mercatus report confirmed this fact that a lame duck president is anything but. They refer to a Wake Forest Law Review article (.pdf required) that looked at George H.W. Bush's last minute regulations and Clintons. Clinton was able only to undo 9% of Bush's regulations while accepting 43%, and George W. Bush was able to undo only 3% of Clinton's regulations while accepting 82%.

Second, presidents can use these last minute regulations in order to fulfill policy obligations or to protect the prerogatives of the office. President Clinton's environmental order and public lands proclamation was designed also to place his stamp as an "environmental" presidency. Promises he made to various interests on the campaign trail. Since no one was watching, what better time to act "alone?"

Which brings me back to the issue of "power." The reason why so many traditional and mainstream scholars miss these actions is because the are so tied to seeing power as a calculus--when the president is new or popular, he has power. Instead, an alternative measure of power exists that is not as sensitive to such things as popularity and time in office. Call it presidential unilateralism, which instead suggests that the president carefully monitors the political system to determine what sorts of strategies to employ--when he has a good working relationship with the Congress or the public, he is more like to involve outside actors when developing and executing policy. But when conditions turn harsh, the president is forced to turn to other strategies in order to succeed--signing statements, executive orders, proclamations--you name it. And for the most part he can embark on a unilateral strategy so long as he does not step on the collective toes of Congree or as long as he does not raise the curiosity of the press and public. Thus at the end of a president's time in office, when Congress is unwilling to work with him and the press no longer does his bidding, the president is forced into a unilateral strategy to finish what needs finished.

Thus pay attention to the actions of President Bush in the coming months. You might be surprised at the bold moves coming from a president everyone assumes is weak.

Update, 7/21

I heard from Charlie Savage this morning, who was kind enough to send me to an article he and Robert Pear wrote in May regarding the Bush administration and midnight regulations, the subject of this post.

The administration issued a mandate to all agencies (.pdf) that they were to file all proposals for new regulations by June 1 and all are prohibited from issuing any final regulations after November 1. According to the White House, these two orders are "good government" in that there are no regulations that are hastily pushed through without proper vetting. The article quotes "legal specialists" who claim that the policy also insures that the policy protects orders from being overturned by new president, although as this post points out, it is incredibly difficult for the new administration to overturn regulations from the previous administration given how those regulations are fiercely protected by vested interests, thus forcing a new president to burn a lot of energy that could be better spent on campaign promises.

Despite the stated promises, there continue to be great pressures on the administration from their friends in the business communities--especially energy concerns--who will be very worried should Senator Obama win the presidency this November. They will seek regulatory protections to be put in place before the Senator becomes president in January. As I said when I closed this post yesterday--keep your eyes on the administration in those final months in office.

Slapping Them Down

2008-07-10T15:36:00.000-04:00

President Bush today issued signing statement #164 of his administration. This was a rhetorical signing statement that came complete with all the trappings of the Rose Garden--a favorite spot for any president's media handlers because it not only highlights the majesty of the presidency, but it is also a beautiful spot for pictures. In fact, during a presidential election featuring an incumbent in the race. If the incumbent pulls well ahead of his challenger, he will often apply a press management technique that limits access to photo-ops at the White House Rose Garden. The strategy is referred to as the "Rose Garden" strategy.

It does not look like the president is going to get much to sign in the remaining days and months of his presidency. The Congress is set to adjourn in late September, and Senate Majority Leader Reid told "The Hill" newspaper today that he does not think that the president will get one more spending bill for his signature, which means that whatever comes his way will be continuing resolutions to fund existing programs at last fiscal year's limits.

The president could, of course, force the Congress to stay in D.C. in special session as Truman did back in 1948, but it doesn't seem likely that he will. The president seems as eager to leave the White House as the Democrats are to see him leave. He began talking about his presidency in the past tense some time ago. But even if he does see a number of bills (and there are important ones out there), it appears his taste for the "constitutional" type of signing statement has tempered ever since the Democrats took control of the Congress in January 2007. Since that time, President Bush has only challenged a little over 20 provisions of bills he has signed into law--dropping him down to what is the norm for previous presidents in any given year.

Signing Statements

2008-07-01T15:33:00.002-04:00

Yesterday, President Bush issued a signing statement (#162 for those counting) to H.R. 2642, which is a supplemental appropriations bills funding defense/military related programs. This particular signing statement is purely rhetorical, where the president emphasizes how political differences were set aside because, at the end of the day, we are all "Americans." In fact, the remainder of the statement applauds the people who have volunteered to serve in the military, whom we "owe" our gratitude and "unflinching support." And the president has a great deal to crow about as he got most of what he wanted from congressional Democrats who seem either unable or unwilling to challenge him in the area of the use of military force. As President Bush concludes: "This bill shows the American people that even in an election year, Republicans and Democrats can come together to stand behind our troops and their families." Even when I decide to send these brave men and women into Iran.

On a similar matter, something has recently happened to underscore the real political importance of the signing statement--importance that is completely overlooked by almost all critics of the device--critics who fail to dig deeper into the device and strip away that rhetoric that surrounds it.

Back in January I noted Bush's signing statement challenging four provisions of H.R. 4986, the National Defense Authorization Act for FY 2008. One of the provisions, section 841 was added to the authorization bill by Senate Democrats Jim Webb and Claire McCaskill and created a "Commission on Wartime Contracting," which contained eight members (four appointed by the Democrats in Congress, two by the Republican minority leaders in the House and Senate, and two by the Bush administration).

President Bush, upon signing the bill, challenged the constitutional legitimacy of the Commission as a "hybrid, one that contained both legislative and executive members. President Bush declared that the section would "impose requirements that could inhibit the President's ability to carry out his constitutional obligations to take care that the laws be faithfully executed..." Because this Commission could only go into effect once all the members were appointed, the President (and his Republican allies in Congress) could essentially refuse appointment of members to keep the Commission on ice. But that didn't happen. The White House and congressional leaders from both parties came together to work out precisely what this Commission would do and came to a satisfactory agreement which allowed the Commission to go forward.

Thus in this instance the signing statement served an important purpose to continue the negotiation between the Congress and the president where the legislative bargaining process failed. Hence the signing statement does not represent a snub to the intent of Congress but rather a clarification of objectionable or ill-defined language and provisions.

If you look backwards in previous administrations, you will find the signing statement has served similar purposes to either work out ad hoc agreements between the branches or follow up legislation that fixes defective provisions. For instance, in the heat of the 1996 election, Congress passed a defense authorization bill that contained a provision requiring the discharge of any HIV-positive military personnel that came under fire not just from the Clinton White House, but also the Joint Chiefs of Staff. The provision contained a time period of months in the future when it would take effect, thus giving the Clinton White House time to note in its signing statement that this provision would never be executed, starting a bargaining process with congressional Republicans that led to passage of a killer law that negated the defective provision. Thus everybody won--the author of the provision--"B-1" Bob Dornan--was able to campaign for the presidency on an "anti-gay" platform, the Clinton administration got to campaign on a pro-civil liberty/homosexual rights platform (with homosexuals being an important constituency) and the Congress got to defend its prerogatives by making the president execute the law as intended, not as he chose to execute it.

So important focus should rest on the use of the signing statement as an important device that allows the Congress and the president to continue communication even after legislation has been signed into law. And continued interbranch communication should be a good thing, shouldn't it?

Heads Up

2008-06-26T19:59:00.002-04:00

Tomorrow, June 27 at 10:00 a.m., Northwestern University Law Professor, Founding Father of the Federalist Society, Founding Father of the Unitary Executive, and self-professed creator of the presidential signing statement Steven Calabresi will be on hand to take your questions at the Washington Post.

Calabresi's book on the unitary executive is due out next month (my co-edited book on the same subject will follow). You can submit your questions now.

The Post is tying Calabresi's visit with today's Judiciary Committee Subcommittee on the Constitution, Civil Rights, and Civil Liberties hearing on "Administration Lawyers and Administration Interrogation Rules." This hearing had, as "invited" guests, former Clinton OLC head Christopher Schroeder, and representing the Bush administration, VP chief of staff David Addington, and former OLC-honcho John Yoo. Of course the real focus was on Addington and Yoo, with Schroeder playing the straight man.

For most folks who are interested in issues of presidential power and watch C-SPAN, this was probably your first time to actually SEE and HEAR David Addington, and I am willing to bet that many of you were surprised to see his did not have horns on head or a spiked tail and fangs. For nearly everyone who has written on Addington, all have noted how he gets his way by bullying others in meetings, that he is sarcastic, and that he has a mind for legal details. And that was on display today. He got into a testy exchange with Robert Delahunty of Mass, who wasn't supposed to be there in the first place. Any way, their exchange involved Al Qaeda, classified information, and C-SPAN. Or better yet, when asked if he would be willing to come back and testify, perhaps in executive committee, over information that was privileged or classified. Yoo said he would be glad to come back if necessary and Addington flatly said "no." He didn't deal in any privileged information, and when challenged that he did refuse to comment on classified information, to which he said: "I am here now. Ask me whatever you want."

The best is the submitted testimony. Schroeder and Yoo, being law faculty, submit their 20 page or so report. Addington does not submit anything. Added for him is a 51 page series of letters between the Committee and Addington or his lawyer.

By the way--it did come up today. Question: "Is the vice president an executive branch agent or a legislative agent?" The answer was several paragraphs and didn't come any closer to clearing up the mystery!

Losing Battles And Winning Wars

2008-06-24T22:13:00.002-04:00

If you happened to hear about the report that the Inspector General at the Department of Justice released about the politicization inside the Justice hiring process, you probably are as appalled as some of the leading newspapers. At the Washington Post, their story quotes Senate Judiciary Chair Patrick Leahy who referred to the report as "troubling," versus the story at the New York Times which gets a quote from House Judiciary Chair John Conyers, who said the partisans at Justice were "putting politics where it doesn't belong." In fact, choose your news source, and nearly all the stories are the same, all fitting the same narrative of a problem that is germane only to the Bush administration and one that fits into a pattern of unilateral abuse of the laws and the Constitution.

The thing is that what the IG Report found as a problem is nothing more than an extension of bureaucratic politicization that stretches all the way back to the Nixon administration, who wanted to neutralize the "New Deal" controlled bureaucracy in order to get his policies moving forward. The Carter administration ushered through the Congress, and then signed the "Civil Service Reform Act of 1978" that allowed the president to set aside a number of appointments--at the top of key agencies--of individuals who not only answered to the president but also had incentives to make sure that the president's political objectives were realized.

It was the Reagan administration, however, that was by far the most overt--and most successful (at the time)--in moving the bureaucracy closer to the White House. For instance, before Reagan took office in 1981, his transition team established a litmus test for anyone applying to work in the administration. They wanted to make sure that every conceivable position where they had latitude over hiring was given to a true believer. The criteria for hiring? According to the two men in charge of hiring, Pendelton James and Lyn Nofziger, the candidate was asked:

1. Are you a Carter appointee? If so, you're rejected.
2. Are you a Democrat who didn't work for Ronald Reagan? If so, you're rejected.
3. Are you a Republican? Are you the best Republican for the job?
4. Are you a Ronald Reagan-George Bush supporter?
5. Did you work in the Reagan-Bush campaign? How early before the convention?
6. Are you the best qualified person for the job? But that's only number 6.

As Ed Meese, who would eventually be Reagan's attorney general in the second term (and the one who oversaw the push to make the signing statement a strategic weapon) remarked on this vetting process: "We sought to ensure that all political appointees in the agencies were vetted through the White House personnel process, and to have a series of orientation seminars for all high ranking officials on the various aspects of the Reagan program. We wanted our appointees to be the President's ambassadors to the agencies, not the other way around."

President Reagan would also issue two key executive orders that gave the Office of Information and Regulatory Affairs inside the Office of Management and Budget the power to make life miserable for any bureaucrat--political or career--who failed to live up to the Reagan vision. This enabled the "president and his agents to monitor and influence the substance of individual regulations." In essence, it established administrative clearance of any and all regulations. By the end of the Reagan administration, the entire bureaucratic apparatus was now highly sensitive to the political position of the president. It simply was not worth the effort to try to end run the White House. And despite the attempts of Congress to assert itself inside the bureaucracy, the truth of the matter was that each successive administration moved the bureaucracy much closer to the White House, leaving Congress with losing ground with each passing year.

The Clinton administration continued the efforts of its Republican predecessors. It enhanced the Reagan executive orders, it used a variety of unilateral devices (the signing statement, proclamation, executive orders, treaty obligations, etc.) and pretty much dominated the Republicans in Congress who were unable to combat how Clinton flew solo when he could not get the Congress to come along, leaving Clinton domestic policy adviser Paul Begala to conclude: "Stroke of the pen. Law of the land. Pretty cool."

Thus the Bush II administration came to power, and it simply extended the reach of the president even further than his predecessors. So after we are finished reading these various accounts, what should be the questions we ask? I think we should start first with a look at how we got here, because that will only help us understand why this happened and then to allow us to think about how we prevent it in the future. Because you can be sure of one thing. This OIG report is only a short term loss. This administration and the candidates running around the country are already thinking about how they will stretch their tentacles throughout the bureaucracy to compensate for the moments when Congress simply won't go along with the president's vision.

Power, Power, Power

2008-06-23T14:36:00.002-04:00

Two interesting articles on yesterday's Sunday papers--one in the New York Times and the other in the Boston Globe--that dealt with the question of presidential power.

First, the Times's James Risen examines the state of presidential power for the 44th president in light of recent set backs to the Bush administration, and finds that the 44th President--whomever that is--will inherit an office with more power than previous presidents (this axiom has been true for every recent president beginning with the Reagan administration). Risen, however, seems to think that the surplus of presidential power is a new thing:

"...the next president will inherit powers much expanded since the 2001 attacks on New York and Washington."

Granted, the Bush administration has been very aggressive in pushing the envelope of Article II, but so have previous presidents. The key difference between the current and previous administrations is public awareness of the push, and clearly this administration has made once obscure strategies household names. But it is not correct to assume that one is more aggressive than the others.

In Risen's piece, he refers to the group of legal minds advising John McCain, and the list is telling. Called the "Justice Advisory Committee," it includes a number of attorneys who have been proponents of executive predominance in the constitutional system, starting with one of the co-chairs--Ted Olson--who served in the Reagan, Bush I and Bush II administrations and has been clear on his stance regarding presidential power. It was Olson, recall, who was part of the Supreme Court case challenging the independence of the "independent counsel." From there, it is a who's who list of conservative legal scholars on the front lines of advancing the unitary executive theory of presidential power:

William Barr, who was head of OLC in the Bush I administration and wrote a famous memo to all executive branch agencies demanding they look out for the top ten types of congressional encroachment upon executive branch prerogatives;
Rachel Brand--she worked in the Office of Legal Policy during the current Bush administration and a unitarian;
Steven Calabresi--one of the founding fathers of the Federalist Society. He worked in the Reagan Justice Department and was instrumental in advancing the signing statement as a strategic weapon. Calabresi is also credited as a founding father of the unitary executive theory, unveling it formally in a 1992 law review article;
Charles Cooper--worked in the Reagan Justice Department's OLC and was also on the ground floor in pushing the signing statement and presidential power;
Charles Fried--worked as the Solicitor General in the Reagan administration, advancing the preeminence of presidential power in the US Courts. Fried commented back in the 1980s that it was the responsibility of the president and his staff to leave the Office in better shape than they found it.

The second article is also very interesting. In this article, Bryan Bender (who seems to have taken over the "presidential power" beat vacated by Charlie Savage, now at the New York Times). Bender examines how the Bush administration has failed to execute a provision of a law passed last summer without stating precisely why it is ignoring the law.

The law--and a big one--was the very first piece of legislation introduced into the House under Democratic control in 2007. H.R. 1 put into effect the recommendations made by the 9/11 Commission. This law was part of the promise that Democrats made in the lead up to the 2006 midterms that if elected, they would pass.

One part of the law ("Implementing Recommendations of the 9/11 Commission Act of 2007") requires the president to appoint a White House coordinator for preventing terrorism. In particular, Section 1841--"Office of the US Coordinator for the Prevention of Weapons of Mass Destruction Proliferation and Terrorism"--establishes this new office in the EOP with a Coordinator (and staff) who is appointed by the President and confirmed by the Senate.

It is the duty of the Coordinator to: 1) serve as principal adviser to the President on all matters involving the prevention of WMDs and terrorism; 2) developing a comprehensive and well-coordinated strategy for prevention of WMDs and terrorism; 3) lead inter-agency coordination of US efforts to implement the strategy and policies for the prevention of WMDs and terrorism; 4) conduct oversight and evaluation of any initiative or policy in the area of prevention of WMDs and terrorism; and 5) overseing the development of a comprehensive and coordinated budget for programs and initiatives in the area of prevention of WMDs and terrorism.

In January 2007, the administration sent a SAP to the House arguing that this new position had a number of problems. Mostly, it is "unnecessary given extensive coordination and synchronization mechanisms that now exist within the executive branch, including the Sept. 2006 National Strategy for Combating Terroism which sets forth a comprehensive multi-layered strategy to combat the threat of WMD terrorism." Bush echoed similiar concerns in the SAP he sent to the Senate on its companion bill, S.4.

Yet when President Bush signed the law in August, 2007, there is no mention nor challenge to Section 1841. The only thing that President Bush does write, perhaps alluding to this section, is that he has issued "numerous Executive orders, Presidential directives, and national strategies" as well as signing "into law the Intelligence Reform and Terrorism Prevention Act of 2004, the PATRIOT Act, and other important pieces of legislation." It appears that his position on the Section 1841 is that it is redundant and unnecessary. Bush further notes that Congress has not passed all the recommendations of the 9/11 Commission and most importantly the Congress has failed to implement the Commission's recommendations that Congress reform itself in order to better conduct oversight of the intelligence communities in the US. Thus Bush may also be reasoning that he need not act upon the mandates of the law because the work has yet to be finished. But whatever his reason, he didn't place it in the signing statement, where such challenges are normally found. As Bender writes: "This time...the White House seems to be ignoring the nuclear terrorism coordinator requirement not for constitutional reasons but simply because the administration thinks it is a bad idea. It is a stance some legal scholars called an even more blatant disregard of the checks and balances on presidential power."

There is nothing new in the actions (or non-actions) of the president. Quite often the Congress creates a position within the Executive Branch, demanding that the president appoint a certain type of individual and then share any of information coming from this position with the Congress itself, only to find that the president refuses to appoint anyone because it violates his constitutional powers.

I hope to find out more about this particular maneuver since it might represent a new manifestation of presidential strategy. Rather than make public the reasons why the president is challenging a provision of law (as is the case with signing statements, proclamations, or executive orders), the president may be making the case internally without public scrutiny. Or perhaps the president has invented a new device that we have yet to stumble upon. Whatever the reason, something different has happened and it behooves us all to find out what that is.

Bush and Jackson and Lincoln...Oh My!

2008-06-20T21:55:00.002-04:00

One of the best journalists at condensing complex subjects to their essence is Dan Froomkin at the "Washington Post." Today's entry falls in line with some of the best that anyone has written on the issue of presidential power and the current Bush presidency. Froomkin begins with the following:

"What kind of country is it where, when the head of state asks you to do something that may well be illegal, but assures you that he considers it legal, you can't be held accountable for doing it? Welcome to the new U.S. of A."

What he refers to is the House passing the surveillance bill that gives complete immunity to the phone companies who were spying on their customers on behalf of the president and without authorization from the FISA courts--or without any oversight of exactly who was being listened to. Critics have charged that Americans making domestic calls were spied upon in direct contradiction to established laws because the administration raised the specter of "combatting terrorism" as necessary to break the law. There are numerous lawsuits aimed at phone companies who were complicit, with AT&T being one of the more high profile and prolific offenders (great job, Apple, for making that exclusive deal with AT&T for phone service to the IPhone).

First, it is clear that--despite their big talk--the Democrats in charge of Congress are incompetent to stop this President from getting what he wants. They came to power in 2007, and have only accomplished in sharing some of the blame that has been heaped upon Washington from those out in the hinterlands. That aside, this case involving the phone companies is an interesting one. As Froomkin notes, it involves the President of the United States telling private entities that they are protected in breaking the law. And if you think about it, that means the President of the United States believes he may break the law and provide blanket coverage to anyone else who follows. This isn't without precedent. The Department of Justice will issue "legal opinion" to executive branch agencies assuring them they are covered if there is a question of breaking the law. For instance, back in 2005 there was the issue of executive branch agencies using video news releases (VNR) in order to spin policy. These VNRs were sent to local television stations all across America and were run without local news stations telling their audience that they were actually manufactured by a particular government agency, instead leaving the viewer to believe that the news station put the story together itself. The Government Accountability Office (GAO) found that the VNRs violated federal laws against propaganda and ordered the agencies to stop producing them. The Office of Legal Counsel (OLC) issued an opinion, which was widely circulated by Josh Bolten, a SAO inside the White House, giving the agencies the green light to continue sending the VNRs out "as is" because the GAO, which is a legislative agent, has no authority to tell an executive branch agency what it should or should not be doing (despite a wide body of evidence to the contrary).

But what the current issue presents is something entirely different. Here you do not have the head of the executive branch ordering his inferior officers to follow orders, but instead the head of the executive branch (and not the King of the US) telling entities outside the government that they may break the law in accordance with the (policy) edicts of the President!

It is clear that the Democrats missed a chance to fight the president on disputed constitutional grounds--does the president as commander in chief have the authority to not only circumvent the law himself, but also to order others (inside and outside the executive branch) to follow suit OR is the law supreme despite the current state of domestic and/or international affairs? And clearly the Congress has the tools to make a statement on the current administration as it fades into the sunset that is not impeachment. I have never agreed with those on the Left that it should be all about impeachment mostly because impeachment would take longer than this administration has in office, plus it is not clear that the public has the stomach for it. But why not use censure against the president and the vice-president? This device does not even need the support of both chambers. The more authoritarian House of Representatives can drive such a measure through without support of the Republicans. And a censure--which is a black mark on the office holder--is something that, in the past, has gotten under the skin of the president. Back in the early 19th century when the Senate censured Andrew Jackson for, among other things, his veto of the Bank of the US reauthorization. In that instance, the Senate, by simple majority, voted to censure for "assuming power not conferred by the Constitution." Jackson sent a letter of protest to be read into the Record, and the Senate refused to "print the president's message." The censure at least puts the Congress on record--for future generations to see--that there were some serious problems in the way the Bush administration respected the Constitution and the Rule of Law, and those future scholars and politicians should not forget it. Plus it is a far more acceptable device to digest for the American public.

Froomkin ends his article with a blurb on Bush and his legacy. If you have been watching the actions of President Bush this last year, you have seen a person who is very much concerned with how he will be treated by history. I still believe personally that history will not be kind to President Bush, but with the ease in how history can be revised, there are still options available to the president to make the case that he has acted in accord with great presidents of the past. For instance, Bush can make the case that his aggressive unilateralism was often blessed retroactively by the Congress, thus preserving our constitutional system of separation of powers much the way Lincoln's actions were blessed retroactively by the Congress he faced. Whether it was Military Commissions or habeas corpus or the current surveillance bill, Bush's unilateral actions received the blessing of Congress in retrospect, which raises the question: "do questions of constitutional abrogation rest on abuses that immediately happen or on abuses that, after the passage of a certain amount of time, do not bring garner the support of the Congress or the American public?"

What Happens Next?

2008-05-25T12:13:00.004-04:00

You remember our friend Bill, the lonely parchment "sitting up on Capitol Hill" awaiting to be considered by the Congress so that he might have the chance to become a law?

The "textbook" model of the legislative process tells us, in a very linear fashion, that a bill has a starting point, several hurdles to overcome, and an ending point whereby the two chambers of Congress vote on an identical piece of legislation, which is then sent on its way to the president where he gets 10 whole days to consider signing it or vetoing it. But if you had the kind of public education that I had, you are as much in the dark as I was at what could possibly take 10 days to consider whether you wish to sign or veto a bill? Particularly, as I was taught, when you know that the president is very active during the entire legislative process in marshaling a bill through each stage that is as close to his liking as possible. So it isn't like he doesn't know what the bill entails, and thus must take 10 days to "crib" in order to make a decision.

With this in mind, Slate's Jacob Leibenluft wrote an article on "how a new piece of legislation gets delivered to the White House," where he asks: DOES CONGRESS E-MAIL THE PRESIDENT? And it is a must-have for high school teachers and American Government faculty all of the US.

Once a bill is passed by both chambers, it is considered an "enrolled" bill, so designated on the website Thomas by the letters ENR. The enrolled bill is supposed to be in identical form, yet there has been moments in the past where that hasn't happened, including the recent farm bill sent to and vetoed by President Bush. That bill was missing 34 pages, requiring the Congress to vote twice to override the president's veto.

The enrolled bill, after certification from the House Clerk or the secretary of the Senate, is then printed on parchment, which in the days of the First Congress was animal skin but today is a special type of paper that resembles animal skin (lamb or goat). Once the final preparations are made, the clerk or secretary (which depends on the chamber the bill originated), and the leadership in each chamber sign off, leaving the bill to be hand delivered to the executive clerk in the White House. The bill is also sent electronically to the Government Printing Office to be displayed online and in print. As Leibenluft notes, if there is an error in the bill, it may be ignored by the president (if it is minor) or the president may issue a signing statement demanding corrections. Leibenluft brings up the "Vicksburg National Military Park" bill as an example of a bill that was sent to President Bush with error. In President Bush's signing statement of the bill, he writes:

The second sentence of section 3(b) of the Act reads: ``Upon the acquisition of the property referenced in this subsection,
the Secretary add it to the Vicksburg National Military Park and shall modify the boundaries of the park to reflect its
inclusion.'' It is plain in reading the sentence that a word is missing between the words ``Secretary'' and ``add.''

In accordance with section 106 of title 1 of the United States Code, enrolled bill S. 1175 was presented to
me bearing the signatures of the Speaker of the House of Representatives and the President pro tempore
of the Senate, which attests that both Houses passed the bill. In accordance with the principles enunciated by the
U.S. Supreme Court in Marshall Field & Co. v. Clark in 1892, I take the bill presented as being duly enrolled and
shall not turn to the journals of either House, the reports of congressional committees, or other documents
printed by the authority of Congress in an effort to determine whether an error in the enrollment of S. 1175 has occurred.

The Congress normally allows sufficient time before a law takes effect to allow for changes that might be made--Thus in the president's signing statement, he may tell the Congress that a provision cannot take force until Congress makes the necessary corrections, which Congress will do in a concurrent resolution, noting that the changes have taken place so that if challenged, the courts will have the truest sense of the legislation. However, if the Congress does not act to correct, the bill that the president signs is the final word, warts and all.

Now, what happens when the bill is hand delivered to the Executive Clerk?

In a 1979 Political Science Quarterly article by professors Stephen Wayne, Richard Cole, and James Hyde, Jr., provide the details of what takes place once the bill arrives at the White House. Copies of the bill are made by the Legislative Reference Division within the Office of Management and Budget and sent to all agencies and departments that are implicated by the legislation, which also includes a copy that is sent to the Office of Legal Counsel within the Department of Justice. The OLC will look for constitutionally problematic provisions while the agencies and departments will make their recommendations as to whether the bill should be signed or vetoed. All have 48 hours to make their recommendations and get them back to the LRD. If they recommend a veto, the agencies and departments also include a veto message that can be used should the president veto. They also include language that may be used in the case of the president attaching a signing statement to the legislation--for instance, many of the constitutional signing statements--that is, the challenges to defective provisions of a bill--originate in the OLC--in fact, the language is lifted verbatim from the OLC recommendations. From here:

The Legislative Reference Division then collects the recommendations and prepares a cover memo for the president. This memo briefly describes the purpose of the bill, lists the department and agency positions, indicates the OMB recommendation, and discusses the major issues of the legislation. The cover memo and the accompanying statements of the departments and agencies are then forwarded to the White House not later than the fifth day of the 10-day period within which the president must act.

What the president does next is solely and completely up to him and those closest to him. As we have seen in the current administration, constitutional challenges have been added by the vice-president and his staff after the OLC has made its recommendations (and one of the reasons why the challenges are as high as they are). Or, advisers close to the president may toss overboard the constitutional challenges of the OLC, all for political expediency. For instance, when I was working on my dissertation, I interviewed Doug Kmiec about his role in the Reagan administration in developing the signing statement into the weapon it has become, and also to ascertain his view from the perch at OLC. In particular, in 1986, the Reagan administration offered a contradictory interpretation to a provision of an immigration bill because the provision was left undefined after a battle between the House and the Senate. Kmiec stated:

I thought this statement had in essence been "hijacked" by a few people...at the White House who wanted, somewhat imprudently in my judgment, to express political rather than legal concerns that did not fairly reflect...either legislative intent or a constitutional evaluation that necessarily must qualify that intent.

Kmiec also described another instance in 1988 when Congress passed a whistleblower protection bill that OLC objected to. In this instance, those closest to VP Bush were cutting deals with members of Congress to mitigate OLC's recommendation that the bill be vetoed. Thus once the bill arrives in the Oval Office, the president can take whatever course of action he wishes to take. What is important to note, however, is just how much the recommendations from the inferior offices limit those actions the president may take. Thus Congress must take into account not just the wishes of the president, but also the views of these inferior political players.

Addendum

2008-05-24T08:30:00.002-04:00

I got an email last night from Gene Healy at Cato, writing to take me to task for claiming his position on the Bush administration has shifted because Bush is about to leave office and a Democrat might win. In this post, my purpose was to respond to Healy's article in the recent issue of "Reason" on modern presidency. In the article I noted that a number of conservatives had begun to come out of the woodwork in criticizing the Bush administration's "abuse" of power. Because this was lumped into the same article, it gave the appearance that I lumped Healy into the same category of these other conservatives, which was not my intent. As I noted in the post, Healy and Cato issued the same sort of criticisms at the end of the Clinton administration as they do now at the end of the Bush administration. But because it wasn't clear, I apologize to Mr. Healy and reproduce his selective bibliography of articles and postings taking the current Bush administration to task. Let me also add my thanks for stopping by this blog to read and respond. I hadn't realized anybody did this! OK, the bibliography:

"Power Surge: The Constitutional Record of George W. Bush http://www.cato.org/pub_display.php?pub_id=6330 ," by Gene Healy and Timothy Lynch, White Paper, May 1, 2006.

"Stay What Course? http://www.cato.org/pub_display.php?pub_id=5164 ," by Gene Healy and Justin Logan, Reason (Online), November 2, 2005

"Geena Davis Is Not My President http://www.cato.org/pub_display.php?pub_id=5140 ," Reason (Online), October 18, 2005

"What of 'Posse Comitatus'? http://www.cato.org/pub_display.php?pub_id=5115 ," Akron Beacon Journal, October 7, 2005

"Domestic Militarization: A Disaster in the Making http://www.cato.org/pub_display.php?pub_id=5074 ," Cato.org, September 27, 2005

"Jose Padilla: Constitutional Unperson? http://www.cato.org/pub_display.php?pub_id=5043" Miami Herald, September 24, 2005

"Bush's Tortuous Choice http://www.cato.org/pub_display.php?pub_id=3991 ," Cato.org, July 15, 2005

"We're at War not with a State but an Armed Ideology http://www.cato.org/pub_display.php?pub_id=2828 ," Star Tribune, September 12, 2004

"Can the President Imprison Anyone, Forever? ," Cato.org, April 28, 2004

"Nourishing the enemy http://www.cato.org/pub_display.php?pub_id=4563 ," South China Morning Post, April 19, 2004

"Deployed in the USA? http://www.cato.org/pub_display.php?pub_id=2576 ," Cato.org, March 19, 2004

"The Era of Big Government Conservatism http://www.cato.org/pub_display.php?pub_id=4564 ," Cato.org, February 1, 2004

"Requiem for the Powell Doctrine http://www.cato.org/pub_display.php?pub_id=3209 ," Chicago Tribune, August 11, 2003

"Remake the World in America's Image? http://www.cato.org/pub_display.php?pub_id=3186" Cato.org, August 2, 2003

"The Case of the Missing WMDs http://www.cato.org/pub_display.php?pub_id=3132," Cato.org, June 19, 2003

"Why Hussein Will Not Give Weapons of Mass Destruction to Al Qaeda http://www.cato.org/pub_display.php?pub_id=3017," Cato.org, March 5, 2003

"Border Security Is No Job for the Military http://www.cato.org/pub_display.php?pub_id=6319," Los Angeles Times, February 5, 2003

"Beware of Total Information Awareness http://www.cato.org/pub_display.php?pub_id=2959," Cato.org, January 20, 2003

"War by Legal Loophole http://www.cato.org/pub_display.php?pub_id=3593," Cato.org, September 12, 2002

"Misguided Mission for Military http://www.cato.org/pub_display.php?pub_id=6322," Washington Times, July 31, 2002

"Volunteer Voyeurs? http://www.cato.org/pub_display.php?pub_id=3550," Cato.org, July 29, 2002

"War with Iraq: Who Decides? http://www.cato.org/pub_display.php?pub_id=3405," Cato.org, February 26, 2002

From The Woodwork They Come

2008-05-21T22:33:00.001-04:00

I find it interesting the number of books and articles from conservatives bemoaning the abuse of executive power, coming now that it looks as if a Democrat may actually take the reins of a powerful presidency and not a Republican (although a Democrat winning still is not a given).

One of the more recent critiques comes from Gene Healy at the Cato Institute, whose book is titled The Cult of the Presidency: America's Dangerous Devotion to Executive Power. As an interesting aside, Cato published an edited book at the end of the Clinton Presidency titled The Rule of Law in the Wake of Clinton, which was based on a conference held at Cato and included, unbelievably, a chapter by John Yoo titled the "Imperial Presidency Abroad" and was an indictment of Clinton's military excursions in places such as Haiti and the Balkans.

And Healy also was critical of Clinton and the exercise of presidential power in this Cato article that appeared on Bush's first inauguration in 2001.

Reason excerpted this piece from Healy's book, titled "The Cult of the Presidency" and teases that the blame for the rise of abusive presidential power lies with us, the American public.

Healy opens up with a discussion of how the contemporary American presidency is completely out of whack with the Founders vision of presidential power, yet he provides no caveat that not all the Founders favored a weak presidency. In fact, the modern president's exercise of power owes as much to Alexander Hamilton as it does to changing circumstances. It was Hamilton who manipulated the Vesting clause of Article II so that it was open-ended enough to allow for the exercise of executive power outside the confines of Article II.

Healy also provides a quick history of the presidency in the 19th century (which Healy calls the "Modest Presidency"), and uses that period to model his expectations for the current presidency--or better, to point to a time when separation of powers worked as it should. During that period, a president was rarely seen by the American public and the Congress expected it that way. He notes Jefferson's refusal to deliver the State of the Union Address in person to the Congress because it was a violation of the constitutional separation of powers and represented an inappropriate influence over the Congress, and when the president did act unilaterally, it was atypical and the president was always cognizant to return the system back to its original state.

Where It All Went Wrong

For Healy, there were two variables that had the greatest effect on the expansion of presidential power--communications and crisis. First, communication technology allowed the president to interact with the American public in a way no other political figure--president, Congress or otherwise--had up to that time. It was Teddy Roosevelt who worked spin through the national newspapers, Woodrow Wilson who broke the tradition of hand-delivered State of the Union Addresses, thus striding into the House before a full gathering of the Congress and delivering the State of America, and FDR who took hold the new technology radio to communicate to Americans on a personal level, thus allaying their fears of domestic and international threats and problems. For Healy, this is where it all went wrong. It is not the president's job to assure of us anything. He is not our healer, our protector, our "father." He is one of many political figures elected to serve our interests. By placing him on a pedestal, it gives him license and freedom to upset the natural order of the Constitution.

The second key variable is the permanent state of crisis--depression, fascism, communism, poverty/drugs/crime, and finally terrorism. Each blended in to the other. And with each new crisis came new powers to the presidency to act. He had "his finger on the button," he was the "leader of the free world" and so forth. What we have come to understand about the flow of the new powers is that they are uni-directional--they flow to the presidency but are never returned. Thus the lessons of 19th century presidents such as Lincoln is lost. As the Civil War concluded, Lincoln was deliberate in stepping back into the Constitution, returning some dictatorial powers he had taken in response to the cessation of the South. If we were to face a crisis of that magnitude today, would the system reset? Would a 21st Lincoln behave as the 19th century did, or would America go the way of Rome? I agree with Healy on this point--the danger of this new war on terrorism is a war without end--different from the Cold War where there was a geographical threat to deal with. This is an enemy without borders, and so long as this enemy is allowed to manipulate our politics and safety in the way it does, it means that our constitutional system is threatened, but by a powerful presidency. As Healy notes, since 9/11, these fears have been realized:

For a president beleaguered by public demands, seizing new powers can be an adaptive response. Small wonder, then, that the Bush administration promptly sought enhanced authority for domestic use of the military. Although few in the media noted the historical moment, the president received that authority. On October 17, 2006, the same day he signed the Military Commissions Act denying centuries-old habeas corpus rights to “enemy combatants,” the president also signed a defense authorization bill that contained gaping new exceptions to the Posse Comitatus Act of 1878, the federal law that restricts the president’s power to use the standing army to enforce order at home.

The new exceptions to the act gave the president power to use U.S. armed forces to “restore public order and enforce the laws” when confronted with “natural disasters,” “public health emergencies,” and “other…incidents”—a catchall phrase that radically expands the president’s ability to use troops against his own citizens. Under it, the president can, if he chooses, fight a federal War on Hurricanes, declaring himself supreme military commander in any state where he thinks conditions warrant it. That’s the kind of executive power grab that happens when the public demands that the president protect Americans from the hazards of cyclical bad weather.

Missing the point

I have two problems with Healy's thesis. The first problem comes from his suggestion that the 19th century represented the best reflection of separation of powers in action, or the best modeling of the Founders wishes. The 19th century saw an "imperial Congress" that browbeat the president into compliance. With few exceptions, the presidency of the 19th century was an office without purpose or power. The vice president and cabinet officers were agents of the Congress. These presidents were given little to no money for help by way of staff. And each was expected to abide by the "expressed" powers of Article II. In sum, the president of the 19th century was a glorified "clerk," processing and administering the wishes of the Congress. So awful was the plight of these presidents that Woodrow Wilson suggested the Constitution be redesigned and the presidency folded into the Congress, becoming more like the Prime Minister of England.

The second problem I have with Healy's point of blame is that the modern president has grown in power mostly because the Congress has "delegated" power to him. At the start of the 20th century the Congress empowered the president to formulate the budget, thus ceding influence over the political agenda to our chief executive. Every major military action since WWII has come from congressional authorizations to use force--in particular this current War is the result of a blank check the Congress delivered to the president in the wake of the 9/11 attacks. The history of the 20th century is a history replete with congressional delegations. Thus the Congress has giveth, it is reasonable that the Congress can taketh away. But only with intense resolve by a Congress committed to protect the interests of the "First Branch," and we haven't seen such a Congress in a generation or more. Thus if the Founders were to return, they would be just as shocked at the sorry state of the Congress as they would the powerful presidency.

Finally, Healy (and others) heap their blame on the "imperial presidency." This is the great bogeyman of many intellectuals--the imperial presidency. More often than not, the term has no definition. And because it has no definition, it is mostly employed for partisan purposes to criticize actions of a president that opponents do not like. The Republicans in the 1990s accused Bill Clinton of acting "imperious" and the Democrats in the last 8 years have made identical claims. The "imperial presidency" thesis accuses an individual of usurping power for personal reasons, and because of this assumption most falsely believe that it ends with occupant. But executive power has been "institutionalized" over the course of the last 30 years, enabling each new president to start with enormous powers, and with a mission to leave the place in better condition than you found it (a lesson, interestingly enough, that is lost on the current administration).

So prepare yourself for articles such as these. As the days of the Bush administration wind down, we should see more--not less--articles in this vein.

The Presidential Signing Statement Act of 2008--An Exercise in Futility

2008-05-16T21:38:00.001-04:00

For the third year in a row, a member of Congress has introduced a bill that attempts to get a handle on the presidential signing statement, and for the third time in a row, the bill is more show than substance. That is to say, it will allow a member to run for re-election on a promise to get a handle on the president's wanton and willful violation of the Constitution by using a signing statement.

In 2006, following the media attention directed towards President Bush's use of the signing statement, both the House and Senate introduced legislation, which went nowhere, to limit the president's use of this tool. The same thing happened in 2007, and now 2008 brings yet one more piece of legislation that, like its predecessors, will go nowhere. Every other bill died in committee and this one will likely share the same fate.

The "Presidential Signing Statements Act of 2008" has been introduced by Representative Walter Jones, a Republican from North Carolina. The explanation for the bill is to "promote congressional and public awareness, understanding, and political accountability of presidential signing statements" and has been sent, for consideration, to the House Judiciary Committee.

The substance of the bill--HR 5993--is as follows:

In the section titled "Findings," Representative Jones finds:

Those signing statements that challenge the constitutionality (which I call "Constitutional signing statements") of provisions of law raise serious constitutional concerns;
The Constitutional signing statement conflicts with the president's obligation to take care the laws are faithfully executed;
The Constitutional signing statement violates the president's oath to defend the Constitution by signing bills that have unconstitutional provisions;
The Constitutional signing statement violates the Constitution by adding an "item veto" to his veto prerogative;
The Constitutional signing statement is difficult to challenge due to the "standing" requirement of Article III;
The Constitutional signing statement is difficult to challenge because most members are unaware of their use or their significance;
Raising the signing statement's profile would bring better congressional and public pressure against their use by the president

Before I delve into the bill's requirements, I want to take a minute to review the findings. First, I find it interesting that a Republican would admit the need for legislation because of personal ignorance. Isn't the Republican mantra all about personal responsibility? Yet right there in bullet #6: "Most Members of Congress and the public neither know nor understand the significance of presidential signing statements." Well they aren't hidden. There has been plenty written about them by scholars of varying stripe. And since 1986, they have been published in the United States Code, Congressional and Administrative News (USCAAN)--and since most members have access to Lexis-Nexis, that search engine has been putting the signing statement into legislative histories of bills going back to the early 1970s.

Now onto the requirements of the President and his/her staff as it pertains to the Constitutional signing statement.

Section 4

This section requires the president to "transmit to the Speaker of the House and the chair of the Judiciary Committee, and the majority leader of the Senate and the Judiciary Committee each signing statement that declares or insinuates the intention of the president to disregard provisions of any bill he has signed into law because he believes it is unconstitutional. The transmissions shall be made no later than three calendar days after the issuance of the statements. The president shall also have such statements published published in the Federal Register according to the same terms and conditions as if they were substantive final rules issued by the Department of Justice.

This requirement, which has appeared in previous versions of this bill, continues to puzzle me. The presidential signing statement has been accessible to anyone who is interested in finding them. Prior to the Internet age, all you needed was access to a library that had the "Weekly Compilation of Presidential Documents," that goes back to 1965. Since the Internet age, the WCPD are accessible online at http://www.access.gpo.gov/nara/nara003.html.

Furthermore, since 1978, the AG has supposed to have been transmitting to Congress any signing statement that refuses defense of law, and since 2002 the requirement has stepped up to include any signing statement that refuses enforcement of law. Now if Rep. Jones and other members of Congress have not been aware before now, then this bill will not make them any more enlightened.

Section 5

This section requires any legal personnel--AG, deputy AG, or White House Counsel, to "testify before the Committees on the Judiciary of the House of Representatives or Senate at the behest of any single Member of either committee to explain the meaning and justification of every presidential signing statement covered by this Act. Executive privilege shall not be recognized as a valid basis for refusing to appear or refusing to answer a question pertinent to the legal reasoning behind a signing statement or its legal ramifications.

First, there is nothing precluding the Congress from doing this now. Instead of inviting the AG, deputy AG, or WH Counsel to come and testify, why not invite the agency personnel to come and tell Congress whether they are following the president's orders? To be honest, inviting a someone from Justice is unproductive. All the member will get is a legal opinion that it is the president's prerogative to refuse enforcement, with partisans on both sides attacking or defending their use--at least this is how the oversight hearings have gone so far.

Second, the Congress cannot condition how the president uses executive privilege. Thus it is a waste of space and time to command that "...executive privilege shall not be recognized as a valid basis for refusing to appear or refusing to answer a question..." The president can claim executive privilege however he or she wishes. Congress of course has the right to challenge in the courts, as we have seen in the past. But that is after the fact, and not before.

Section 6

This section cuts off money to implement the signing statement if Sections 4 or 5 have been violated.

It is clear that Congressman Jones introduced this bill for advertisement purposes only. On his homepage you find JONES INTRODUCES PRESIDENTIAL SIGNING STATEMENT. Clicking this link you go to the press release which has some interesting commentary:

"Just as the American people have access to the text of bills that are signed into law, they should have easy and prompt access to the content of presidential signing statements that may effect how those laws will be executed,” Congressman Jones said. “To enable a more complete public understanding of our nation’s laws, the U.S. Congress should also be able to call for the executive’s explanation of the meaning and justification for a presidential signing statement.”

It is laughable if he thinks that public access to legislation is easier than the public access to signing statements.

“According to CRS, President Clinton issued 381 signing statements while in office, 70 of which raised legal or constitutional objections. President George W. Bush has issued 157 signing statements, 122 of which have contained some type of constitutional challenge or objection,” Jones said. “Because it’s reasonable to assume that future presidents will continue this practice, I believe Congress should act now to pass legislation that will ensure proper understanding and disclosure of these signing statements.”

This is wrong. As you readers know all to well, President Bush has now issued 160 signing statements that have challenged 1,167 provisions of law. These numbers comes from an article written by two legal scholars--Curtis Bradley and Eric Posner, who decided to recount the numbers and types of signing statements because of uncertainty in the count--even taking me to task for revising my categories, which I did. In my earlier work on the signing statement, including my dissertation, I divided the signing statement into three different types: Rhetorical, Constitutional, and Interpretive. I counted as a constitutional challenge any challenge where the president refused enforcement of a provision of law, and Intepretive any provision where the president had to supply his interpretation of a provision because it was written in an unclear manner.

The problem I ran into was a definitional one--in nearly all cases, when a president interprets or challenges, he does so by pointing to his Article II powers to justify his actions. Further, particularly by the time of Clinton and Bush II, their signing statement challenges made it tough to separate as either-or. So I sacrificed a level of understanding because it was unmanageable--and I continue to believe that anyone who continues to use the three categories are having to guess at some signing statements, and we should not be guessing. It made more sense to me to collapse the Constitutional and Interpretive categories in one category titled Constitutional. Since the president was justifying his actions in constitutional terms, I feel comfortable with my decision. Thus when I had the three categories, the total numbers were much smaller.

Posner and Bradley also note that their additional category gives them numbers different from others, which is correct. The problem with this is it provides shelter for partisans--and we have seen this on a number of different occasions where the argument is that Clinton issued more signing statements than Bush or, as Jones cites the CRS article (relying on Bradley and Posner's data) which demonstrates an incredible difference between my count, or the count by Kinkopf and Shane, thus creating a sense that no one really knows how many or how few challenges a president has made, thus the numbers are derived for partisan reasons rather than scholarly reasons.

The action by Jones has been noted by members of the press. In this article, titled "What else has Bush Lied about?," columnist David Paul Brown distorts the issue of the signing statement. Brown writes:

Presidents over the years have all used signing statements but they were used rarely and mostly for "big ticket" items. President Bush uses them to sign most any law and then essentially say, "I can choose to follow the law, follow it in part, or ignore it entirely if I choose to." He has issued more signing statements than all other presidents combined.

I have no ideal what a "big ticket" item is in political terms. In household lingo, it refers to things such as a big screen TV or a car. Further, once again we are left with the sense that the president uses a signing statement because the mood strikes him to do so. Sure, President Bush has challenged more provisions of law than any other president, but all of those challenges come packaged in constitutional terms. Thus for the most part, any one of President Bush's signing statement that challenges provisions of law reads like those challenges made by Reagan, Bush I, and Clinton. To say different demonstrates just how little you know about the signing statement.

If the Congress and partisans like Brown really want to combat the use of the signing statement--at least so long as Bush is in office--then they will continue to fight for Democratic control of Congress, because since January 2007, President Bush has barely turned to the signing statement, and when he does, it is often for purely rhetorical reasons. It appears that divided government has had a major effect on the use of the signing statement by the Bush administration, which is weird. In the past, divided government was a major reason why presidents used the signing statement to challenge provisions of law.

Second, the Congress and partisans like Brown will work hard to uncover how the challenges are implemented in the executive branch agencies, because that is what is really important. The president can make all the challenges he wants, but it is clear that he will only see through a tiny subset of those challenges. Thus Congress should continue to hold oversight hearings and press the GAO to replicate some of the studies it has done in 2007. Furthermore members of the press will continue to use their contacts inside the executive branch agencies to determine whether the signing statement is actually having an effect on implementation. Only then will we all really understand the importance of the signing statement to any president, Democrat of Republican.

McCain in Ohio

2008-05-15T18:08:00.001-04:00

Republican-nominee John McCain was in my state capitol today--Columbus--to rev up the Republicans in Ohio--an important state for either Party, and one where Republicans have suffered some recent defeats at the state level, losing the Governor, State, and AG in the last election.

McCain spoke about a great many things, including the presidential signing statement. McCain has fumed over the use of the signing statement ever since President Bush used his signing statement to renege on a deal regarding torture back in 2005. In November, 2007, McCain told a gathering at a Rotary Club that he would "never issue a signing statement." He seems to have changed his stance a bit since that speech. Today McCain declared, late in the speech:

I am well aware I cannot make any of these changes alone. The powers of the presidency are rightly checked by the other branches of government, and I will not attempt to acquire powers our founders saw fit to grant Congress. I will exercise my veto if I believe legislation passed by Congress is not in the nation's best interests, but I will not subvert the purpose of legislation I have signed by making statements that indicate I will enforce only the parts of it I like. I will respect the responsibilities the Constitution and the American people have granted Congress, and will, as I often have in the past, work with anyone of either party to get things done for our country.

His position is no longer absolute, and it is also misleading. He says: "I will not subvert the purpose of legislation I have signed by making statements that indicate I will enforce only the parts of it I like." Who would disagree with that? You will not find any signing statement the challenges various provisions because the president doesn't "like it." Unfortunately the debate surrounding the signing statement has created a false belief that when the president uses them, he "willy-nilly" moves through the bill, tossing aside those provisions that he doesn't care for or about. In fact, the signing statement, when challenging a provision of law, couches those challenges in constitutional language--or more simply, when a president refuses enforcement, he does so because not only does he believe, but also his legal advisers in the White House and in the Justice Department, has told him that it violates the Constitution.

It will be important as the election season matures to nail down McCain on the issue of the signing statement since his view has changed. It also might give him the opportunity to clarify that not all signing statements are bad and further, not all challenges are carried out--in fact, only a tiny fraction of the challenges are implemented by the president.