Hiding in Plain Sight

Not since the George W. Bush administration a decade ago has the presidential signing statement received the type of media coverage it is currently receiving.

The signing statement traditionally was a more arcane device that was not really understood, or known, by academics, the press, and the public.  And it was in this fuzziness where the signing statement was most valuable.  That is to say, if no one is watching and monitoring, then it gives the administration latitude to stretch the language of the law or to refuse enforcement of those provisions which it does not like.  But with the Bush administration--and in particular in the second term--that the signing statement became something that everyone, including members of the press, became an expert on. There has been an increase in the number of articles published in academic journals, as well as an increase in the number of scholars who have carved out a slice of the device to study, to both positive and negative effects.  Because of the increase in the number of eyes tracking the use of the signing statement, it all but disappeared in the Obama administration (leading one recent paper I reviewed to claim the death of the presidential signing statement).  But in comes the Trump administration, and with it, the renewed media interest in the signing statement.

The Trump administration--like everything else it has done to date--has been clumsy in its approach to the presidency and presidential power.  I think Trump, if his behavior does not change, will be the first president to break the Reagan administration axiom to leave the power of the presidency in better shape than you found it.  This axiom has united all presidents--Reagan through Obama. But not Trump.  President Trump has little care for norms and traditions, and really wants the presidency to serve his interests and not vice versa.  And if Congress could get its act  together, it could reserve a hundred years of power flowing from the legislative branch to the executive branch. That of course is a big IF (I will speak more about Trump and presidential power in a future post).

So as I tuned in to the media coverage of yesterday's signing statement--including yesterday's press briefing with Sarah Huckabee Sanders--I was taken by the effectiveness of using one statement to obscure the other statement.  But before I write about this, let me focus a minute on the two statements.  I considered both statements as signing statements, something that seems to trip up other interested individuals simply because of administration nomenclature. Yesterday, during the live press briefing, one reporter asked the press secretary:

Sarah, can you clear up some confusion?  There were almost simultaneously two signing statements that went out.  They had slightly different language.  Did you intend to send both out, or was that a mistake?

The press secretary responded:

It was actually one signing statement and one press statement, so that's the difference.  One is more of a legal document that goes with the executive secretary, and the other one is a press document.  So that's the difference.

 This distinction makes no sense whatsoever.  A presidential signing statement is a statement by the president that describes the bill he has signed, what it does and doesn't do, who should or should not get credit and/or praise, and how the president intends to deal with provisions that are not clear and/or unconstitutional.  What Press Secretary Sanders did was to deliver make believe to the White House press corps.   A statement by the president carries the force of the presidency--even if that statement is 140 characters long--and thus should be taken more seriously than, say a White House press release from the Office of the Press Secretary.  A press release on the bill President Trump signed yesterday would have likely been written in the passive voice, 3d person:

On Wednesday, August 2, 2017, the President signed into law:
H.R. 3364, the "Countering America's Adversaries Through Sanctions Act," which strengthens and expands statutory sanctions on Iran, Russia, and North Korea, and for other purposes.

How do we know this?  Because this was the "press document" actually released by the press secretary to the public and the press noting Trump's signing the bill.

The statement that Sanders refers to as a "press document" and the statement regarded as the signing statement begin exactly the same way: "Today, I have signed into law H.R. 3364, the 'Countering America's Adversaries Through Sanctions Act.'" Both are written in the first person. And, if you look at the White House webpage listing the three documents: the press release and the two signing statements reads as follows:

* President Donald J. Trump Signs H.R. 3364 into Law (press release)
* Statement by President Donald J. Trump on the Signing of H.R. 3364 (signing statement #1)--emphasis added
* Statement by President Donald J. Trump on Signing the "Countering America's Adversaries Through Sanctions Act." (signing statement #2)--emphasis added

Explain to me how or why the second and third bullet point should be considered as different things?  The fact is, they are not different.  The "Daily Compilation of Presidential Documents has not yet caught up to August, but I guess that when it gets to August 2, it will list statements 2 & 3 above under "Bill Signings" and statement 1 under press releases. 

Kudos to the reporter who tried to get the difference out of Sanders, and given how arcane all of this is, I understand why he, or anyone else, decided not to follow up on it.

But two different signing statements on the same bill--with or without a public signing ceremony--is not unusual.  I have argued that presidents release two different statements in an effort to misdirect the press, and it is here that I give the administration the nod on the misdirection.

The administration I am sure knew the grief they would receive in issuing the signing statement that downplays the harsh sanctions directed at Russia, and for that understood this statement would receive more scrutiny than any other statement.  So that administration issued, as I argued yesterday, a rhetorical signing statement that was highly unusual, comparatively speaking.  The rhetorical statement mentioned the failed fight over the "skinny repeal", which had nothing to do with this bill, and it appeared to fluff Trump's ego.  I think the administration was betting by throwing these things into the bill, the press would bite, and focus on one, for example, whether the Senate Republicans had anything to say about Trump's personal criticism and two, on Trump's success as a businessman.

So far, in reading and watching the coverage of the signing statement, I have not been disappointed.  In today's "Wall Street Journal", page A1, Natalie Andrews and Rebecca Ballhaus quote liberally from the rhetorical signing statement, noting the final line of the statement: "I built a truly great company worth many billions of dollars...As President, I can make far better deals with foreign countries than Congress."   In fact, it isn't until deep into the jump that the other statement, with the constitutional challenges, is even mentioned. 

So it seems to me that the White House, at least on this particular issue, has understood the value of hiding (potentially) aggressive presidential action out in the open.  Whether this learning sticks, as we have seen so far, remains to be seen.

Trump and Signing Statements

Donald Trump is actually engaging in behavior that seems contradictory: He has managed to get very little legislative business done--most of the bills sent to him have originated in Congress and not in the White House--while at the same time issuing more signing statements in his first 6 months than most of his predecessors--particularly given the number of bills signed/the number of signing statements issued!

What makes this even more puzzling is his use of constitutional challenges in his signing statements.  What past research on the use of the constitutional signing statement (as opposed to the rhetorical signing statement) is the use of constitutional challenges normally go up when:

* Presidents face divided government, and in particular polarized divided government;
* Presidents lose support among the public;
*Presidents who are later in their terms--and in particular in the second term;
* Presidents who are facing an election--midterm or presidential

President Trump of course came into office with a united government that seemingly was in agreement on getting big things done: ending Obamacare, tax reform, immigration reform (if building a wall is reform), and so forth.  Working against Trump of course is losing the popular vote after a very contentious election (even more so than the 2000 election) and staying stuck in neutral as a result of some spectacular fumbles in getting their agenda moving.  Because of this, President Trump has blown his honeymoon, and now faces unusually low public approval numbers so soon in a new presidency and the loss of support among co-partisans in Congress. 

This of course explains why President Trump has preferred unilateralism, which does not make him different from  his predecessors.  A presidency boxed in by a hostile public, Congress, and press will see unilateralism over the normal procedures of governing.  On top of this is this president's thin experience with politics and his life as a CEO who is used to getting his way.

If we compare President Trump with President Bush--two presidents who came to office under comparable periods--we see that President Bush ended up issuing 24 bill signing statements in 2001, 11 that contained constitutional challenges with a total of 19 challenges.  His first constitutional signing statement came in March 2001, with the rest coming as the rush of spending bills came to the White House in late summer/fall.  President Trump has now issued three signing statements--all containing constitutional challenges. His first signing statement, issued in May, contained more than 89 separate and distinct challenges. His second signing statement, issued in June, contained one. And now this third statement, issued today, August 2, contains at least 12 challenges, though some are written using such vague language that it is not clear whether or not it is really a challenge. Given that the administration decided to dedicate a paragraph--vague or not--I decided to believe they are sincere in pushing back against congressional interference mostly in the foreign policy powers of the president.

A second bonus is the administration issued two signing statements to the same bill--something previous presidents have done--in order to obscure the constitutional challenges contained in the constitutional signing statement. In the signing statement picked up by many reporters, they refer to "Statement by President Donald J. Trump on Signing the 'Countering America's Adversaries through Sanctions Act.'" Their is a second signing statement that is simply titled: "Statement by President Donald J. Trump on the Signing of H.R. 3364." Thus if you are under deadline, or later on, doing research on the sanctions bill, your search is more likely to hit the first statement and not the second.

The two signing statements are also interesting in their style when compared to previous presidents.  First, the public statement that leaves out the constitutional challenges. This particular signing statement reflects the president's personal style more than I have seen in any previous public statement.  In all previous rhetorical statements, while the president would often use the word "I", reading the statement gave you the impression that a crew of staff wrote it.  In President Trump's statement, he brings up a totally separate bill and political fight and mentions it in this statement.  Referencing the failed Senate health care bill, Trump writes:

Still, the bill remains seriously flawed – particularly because it encroaches on the executive branch’s authority to negotiate.  Congress could not even negotiate a healthcare bill after seven years of talking...

Wow!

It would not be typical for a president to mention a failed political fight unless it was a fight that led to the passage of the bill he is signing. Furthermore, the President also brings up a political fight that underscores the failure of his party to pass a bill, which does nothing to help his relationship with Senate Republicans.

And finally, at the end of the statement, it contains a paragraph that does nothing but fluff the ego of the president, another thing that you would not normally see in a signing statement.  President Trump writes:

I built a truly great company worth many billions of dollars.  That is a big part of the reason I was elected.  As President, I can make far better deals with foreign countries than Congress.

To me, this either suggests that his staff are going overboard to flatter the president, or more likely, the president took an interest in reviewing, and possibly editorializing, this statement.


His constitutional signing statement--simply referred to the bill number--is boilerplate for the type of challenges you would normally see from the Office of Legal Counsel's review and remarks on the bill. The tipoff is the use of Supreme Court opinions to bolster the challenges.  For instance, President Trump objects to sections 253 and 257 because it interferes with the president's ability to recognize foreign governments in line with the Supreme Court opinion Zivotofsky v Kerry (the case regarding the recognition of Jerusalem as part of Israel).   In a separate challenge to the use of the legislative veto, the administration refers to the Supreme Court case INS v Chadha, which held that the legislative veto violated the Presentments Clause of the Constitution. Even though the case was decided early in the Reagan administration, the Congress continues to use the device and president's continue to object, and Trump is no different.  In the statement, after explaining that section 216 contains an unconstitutional legislative veto, his statement reads: "I nevertheless expect to honor the bill's extended waiting periods to ensure that the Congress will have a full opportunity to avail itself of the bill's review procedures."  Why accept something the Supreme Court has held is unconstitutional? Because back in the Reagan administration, when they tried to refuse recognition of the legislative veto, congressional committees began cutting appropriations to key departments and agencies until the administration complied, as has been the case with every administration that tried to test the legislative veto.

The Nature of Presidential Power

As we prepare for the 2016 election and the start of a new presidency, the news media reports about the increase of presidential power are only starting to heat up.  If you recall back in 2008, the "New York Times" and other outlets ran stories gauging where the candidates stood on such things as signing statements and other forms of executive power.  Now in 2016, partly in response to President Obama's "executive action" on guns or veto of a defense appropriations bill over the issue of closing Gitmo, the stories are starting anew.  While it is true that presidential power has increased since the 1980s, the framing of the issue as "power grabs" or "new imperialism" misses a very important point: Much of the rise of Article II power stems from either Members of Congress (MCs) refusing to stand up for congressional power OR making it impossible for the president to act within the confines of the normal legislative process. 

In this posting, I will focus on four reasons for the rise of presidential power that has nothing to do with ambitious or power hungry presidents.

1) Days in Session.  Much has been made about the president on vacation from the White House.  This was a rally cry among Democrats and liberals during the Bush administration, and it has been a rally cry among Republicans and conservatives with the Obama administration. Either way, it is a stupid argument because even when the president is away, he still exercises all the power of the executive branch--meaning he can sign legislation, veto legislation, speak with Congress, sign orders, etc.  Not true for the Congress.  Since the power of the Congress rests in the 535 members (or in the 300 Republicans the make up the majority in the House and Senate), it takes the collective members to be in session in order to make the Congress work. Yet in the 114th, 1st Session (2015), the House was in session just 158 days and the Senate was in session just 166 days. In the month of August, the House was in session just one day and the Senate just four days. Thus as you can see, the number of bills that a president receives is incredibly small. And yet the president is still expected to lead, or to "do something". And when the Congress denies the president the opportunity to make law the normal way, then the smart plan is to turn to the abnormal way to make law: Go solo.  Imagine the outrage by Congress, the press, and the public, if the president simply refused to act unilaterally and only exercised the powers of his office to sign the paltry number of bills the Congress manages to send his way?

2) A second reason for the imbalance of institutional power results from the types of people who occupy the office to which they have been elected. Presidents--and this is an area of bipartisan agreement--seem to be occupied by individuals who have two goals in mind once the inauguration parades are over: to leave the office in better shape than they found it AND to increase their overall power to get things done from first day to last.  The Congress does not seem to have the same kind of people. The question is: did it ever?  And the answer is yes.  30 years ago, those who studied the Congress made the distinction between "work horses" and "show horses". The work horse was the person who avoided media attention, and instead spent their time making the Congress the dominant institution of government. The show horse? Well this person clamored for media attention in an effort to advance their own position in politics.  Studies of Congress today do not talk much about the work horse.  Instead, both branches of Congress seem to be filled with members who are constantly looking at the opportunity to advance--for the House, it means the opportunity to move to the Senate (where their profile is going to be much higher than in the House) and in the Senate, it seems to be the opportunity to run for the presidency.  Take President Obama as the example.  He took office as the junior senator from Illinois in January 2005. By January 2009, he was taking the oath of office for the presidency.  And if you read books such as Game Change, it is clear that Senator Obama disdained his time as a senator (one of the many reasons why his arch enemy has been Senator John McCain). And if you listen to the rhetoric of Senators Rubio and Cruz, it is clear that they have little to no respect for the Senate or congressional prerogatives--Cruz in particular.  And to ask a rhetorical question: if Cruz or Rubio do win the election in November, are they likely to work to tear down the powers of the presidency out of respect for the constitutional process, or are they likely to seek out way in which they can exploit the language of the Constitution in order to advance presidential powers?  I don't need to wait for your response.

3) The "Broken Branch". While I don't necessarily agree with Norman Ornstein and Thomas Mann's one party indictment of all the troubles with the Congress, it do agree with their overall thesis that the U.S. Congress is broken.  Call it a symptom of divided government or polarization. What is clear is that the Congress seems more concerned with the re-election needs of the members and not to compromise with the president.  How do we know? Certainly one way we know is the number of times that the Congress has attempted to overturn the Affordable Care Act, or "Obamacare". In what universe does one see praise or success in such a futile action to the detriment of other chronic or long-term structural problems that the United States currently faces, such as fixing the debt problem or social security?  To date, the Congress has tried 62 times to overturn Obamacare--this in the face of a Supreme Court decision defending the law as well as jiggering with congressional rules to pass the overturn with the bare minimum possible, all the while knowing that any passage will be vetoed by the president, as was the case in the most recent attempt, which President Obama stated in his veto message that this "has earned my veto". This does not matter. The Congress got right back on its horse in an attempt to try the 63d attempt to repeal Obamacare, not because they believe it will happen, but because they are more concerned with giving their members cover in the upcoming election, as well as giving an issue for their eventual nominee to campaign on come November (particularly if that nominee is a current MC). If the definition of crazy is the repeat of an action expecting a different result, then what do you call 62 repeats? How about insane?  Thus if the Congress (and this would be true with a Democrat-controlled Congress) seeks only to pass legislation for electoral purposes (and not statutory ones), then how can you expect a president to find areas of compromise?

4) Finally, it is hard to get a president in the mood to compromise when he faces the kind of open hostility that current presidents face!  For instance, who would have ever believed that a President of the United States, during a State of the Union address, would ever hear a MC scream out "You Lie!"? What's worse? The "You Lie" shout happened at President Obama's very first State of the Union address. Not a way to suggest that the Congress is here and ready to go to work. Furthermore, rather than shrivel in shame, Representative Joe Wilson used it as a fundraising opportunity--and a successful fundraising opportunity at that.  Furthermore, on the other side of Congress, and also right there early in President Obama's first term in office, there was Senate Minority Leader Mitch McConnell (R. KY), speaking before the conservative Heritage Foundation about the top legislative strategy would be to make President Obama "a one term president":

So as we look forward to the next president, we should certainly be wary of the continuous push to exercise power to the detriment of the constitutional processes. But in our concern, our focus should include the negligence of one branch of government to protect and defend its powers, simply because power not exercised is not the same as power not used.

How Soon We Forget

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

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

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

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

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

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

• This recent Congressional Research Report, technically not available to the public, but through the yeoman work of the Federation of American Scientists, it is!
•  Lou Fisher's Constitutional Conflicts between Congress and the President (University of Kansas Press).
• Glen Krutz and Jeff Peake's Treaty Politics and the Rise of Executive Agreements (University of Michigan Press).
• For a different take, check out my friend and colleague Ryan Barilleaux's work on Parallel Unilateral Policy Declaration as a means to avoid the reporting requirements tied to the executive agreement.

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

President Obama has done something with his signing statements that we have not seen in previous presidents--or at least we have not seen  as consistently.  President Obama has made a habit of referring to the signing statements of his predecessors in order to justify his arguments in his own signing statements--and in particular, the signing statements of his Republican predecessors

Case in point.  On Friday, President Obama dumped a signing statement to S.2195, which  amended Section 407 of the Foreign Relations Authorization Acts of 1990 and 1991 (they were combined after a contentious series of moves and counter-moves, leading to the veto of the Foreign Relations Authorization Act of 1990 by President Bush. The debate extended to the point that President Bush and Congress were forced to combine two years of appropriations into one piece of legislation).

In President Bush's signing of the Act (HR 3792), he challenged, at a minimum, 12 different parts of the bill.  I say minimum, because in a couple of sections of the bill, President Bush does not tell us what he is specifically challenging.  For instance, in his signing statement, President Bush states: "A number of other provisions might be construed to require the executive branch to contact foreign governments and espouse certain substantive positions regarding specific issues."  How is that for specificity?

In this particular instance, the Congress has decided to amend Section 407 of the law. To provide context, we need to go back to the end of the Cold War, the situation in Iraq & Kuwait, and the general tension in the Middle East.  Yasir Arafat wanted to take the PLO mainstream in order to be a player in the peace process.  Part of this conversion involved delivering a speech to the UN, which the US Congress opposed (in part because of the strength of the Israeli Lobby in the US).  As a result, Congress added a section to HR 3792 which stipulated:

The President shall use his authority, including the authorities contained in section 6 of the United Nations Headquarters Agreement Act (PL 80-357), to deny any individual's admission to the United States as a representative to the United Nations if the President determines that such individual has been found to have been engaged in espionage activities directed against the United States or its allies and may pose a threat to United States national security interests.

Even though the Act contained a waiver, President Bush nonetheless stated in his signing statement:

Section 407 of the Act is similarly subject to inappropriate interpretation. This section purports to require that no individual may be admitted to the United States as a representative to the United Nations if the individual" has been found to have been engaged in espionage activities directed against the United States or its allies and may pose a threat to United States national security interests." In effect, this provision could constrain the exercise of my exclusive constitutional authority to receive within the United States certain foreign ambassadors to the United Nations. While espionage directed against the United States and its allies is a problem of the utmost gravity, curtailing by statute my constitutional discretion to receive or reject ambassadors is neither a permissible nor a practical solution. I therefore shall construe section 407 to be advisory.

In fact, President Bush kicked off the signing statement by declaring:

The Constitution vests in the President the executive power of the United States. The executive power includes, among other things, the authority to receive and appoint ambassadors and to conduct negotiations on behalf of the United States with foreign governments.  Thus, pursuant to the Constitution, the President is entrusted with control over the conduct of diplomacy. The content, timing, and duration of negotiations with foreign governments are also within the President's control.  Unfortunately, many provisions of this Act could be read to violate these fundamental constitutional principles by using legislation to direct, in various ways, the conduct of negotiations with foreign nations.

So fast forward 23 years, and instead of it being the PLO, it is the Iranians.  Nonetheless, the issue is the same: terrorism and the Middle East.  The Iranians have chosen a new ambassador to the United Nations, who also is connected with the group of Iranians who stormed the US Embassy in Tehran in 1979 and held 52 Americans hostage for 444 days.  The new Ambassador, Hamimd Aboutalebi, has declared that his involvement in the controversy was limited to providing translation and negotiation services.  It does not really matter given that this issue, like the PLO in 1990, is tied more to American domestic politics rather than whether he was or was not directly involved in the hostage crisis.  What is clear is that Aboutalebi is a far more removed figure from terrorism than Yasir Arafat.  But like I said, terrorism and Middle East politics are secondary to the central issue--the 2014 mid term elections. And possibly even the 2016 presidential elections.  I say that because leading the way on this issue has been Senator Ted Cruz (R. TX), current media darling AND constant headliner on 2016 discussions.

So the Congress pushed this issue ostensibly to protect national security, though it is uncertain how denying a diplomat entry into the US because of tenuous ties to a controversial issue 40 years ago is protecting the national security of the US, but OK.  So President Obama was boxed into signing the legislation, and as a way to take some of the sting off of the signing, he 1) signed it late in the day, Good Friday afternoon, and 2) he fought the Congress's bipartisan measure with some bipartisan fire of his own by referring to George H.W. Bush's signing statement from 1990.

Obama wrote:

Today I have signed into law S. 2195, an Act concerning visa limitations for certain representatives to the United Nations.  S. 2195 amends section 407 of the Foreign Relations Authorization Act, Fiscal Years 1990 and 1991, to provide that no individual may be admitted to the United States as a representative to the United Nations, if that individual has been found to have been engaged in espionage or terrorist activity directed against the United States or its allies, and if that individual may pose a threat to United States national security interests.  As President Bush observed in signing the Foreign Relations Authorization Act, Fiscal Years 1990 and 1991, this provision "could constrain the exercise of my exclusive constitutional authority to receive within the United States certain foreign ambassadors to the United Nations." (Public Papers of the President, George Bush, Vol. I, 1990, page 240).  Acts of espionage and terrorism against the United States and our allies are unquestionably problems of the utmost gravity, and I share the Congress's concern that individuals who have engaged in such activity may use the cover of diplomacy to gain access to our Nation.  Nevertheless, as President Bush also observed, "curtailing by statute my constitutional discretion to receive or reject ambassadors is neither a permissible nor a practical solution."  I shall therefore continue to treat section 407, as originally enacted and as amended by S. 2195, as advisory in circumstances in which it would interfere with the exercise of this discretion.

So there you have it.  President Obama issued a signing statement to not only challenge the original law, but also to protect the current prerogatives of his office by treating the offending provisions as "advisory" and "discretionary".

Some ask: Given that the original law and the current law contain a section that allows the president to waive the offending passage should reason warrant it (and so long as he informs the Congress of the waiver), why the need to challenge the legislation? And the answer to this is that the president does not believe he needs to explain a waiver to the Congress.  Instead, though he was given a waiver, the president believes that the Constitution gives him sole jurisdiction over matters of foreign policy, and every other prerogative executive in nature--not the Congress.  Therefore any legislation that impacts negatively on the president's powers--past, present, and future--must be defended, even if, in the end, the President decides to consult the Congress on his waivers.

Unilateralism 101

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

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

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

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

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

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

The president has a diverse set of devices to help him work alone.  Among the more significant:

·      Executive agreements—Presidents make agreements with foreign countries that have the force of law.  The benefit to using an executive agreement is they get around the Senate ratification process.  Even though the Senate has ratified most treaties, the process is cumbersome, lengthy, and has the potential to embarrass the president if the treaty fails.  Thus modern presidents have utilized the executive agreement in preference to the treaty, and President Obama has been more likely than his predecessors to use an executive agreement instead of a treaty.

·      Presidential proclamations—Most people think of the proclamation as largely ceremonial, such as the “Religious Freedom Day” Proclamation.  But some proclamations can be substantive, such as President Bill Clinton’s proclamations claiming public land. Those proclamations, issued in his final days in office, set aside millions of acres of land as “protected” from developers, loggers, and energy industries.

·      Presidential memoranda—these are circulated throughout the Executive Branch to direct or explain a presidential policy or position. But because they are directing bureaucratic decisions, they have the effect of policy.  Presidents have used memoranda to lift or secure rules involving abortions or information related to abortion. In fact, President Obama recently used the memoranda to deal with the issue of guns and gun-related violence after legislation failed in the Congress.    

·      Signing statements—The use of the presidential signing statement dates to the Monroe administration.  But the systematic use of the signing statement to act as a type of item veto or to put the president’s spin on the law dates to the Reagan administration.  Recent presidents have used the signing statement to prevent Members of Congress from serving on executive branch committees, to protect military service personnel who tested HIV positive, to limit protections for whistleblowers, and to refuse to share information with congressional committees.

·      Executive orders—Executive orders date to the Washington administration.  These orders are used to direct or instruct bureaucrats to either take a course of action or cease taking an action.  Presidents have used executive orders to get around a recalcitrant Congress. For instance, President Truman’s desegregation of the United States military in 1948 or George W. Bush’s order creating the Office of Faith Based Initiatives after the Congress refused to consider it for a cabinet level position. Bill Clinton used an executive order to wage war in Kosovo.

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

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

Making Sense of Tanenhaus

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