To All

Here is to a wonderful new year everyone. Here is to a year with more questions to the candidates about presidential power. Here is to the last year of the Bush administration. And here is looking forward to higher levels of turnout by all groups, but especially young people!

What A Disaster

President Bush has apparently caught Congress off-guard as he vetoed a defense spending bill that everyone assumed he would pass. And here is confusion over whether he really vetoed the measure or pocket-vetoed the measure. And for the press, there is uncertainty over what a pocket veto actually is.

But first, the bill. Congress send the massive bill (HR 1585) to the president before Christmas, and right before the House adjourned for this session. One provision added to the bill back in September by Senator Frank Lautenberg (D N.J.) is what sparked Bush's disapproval message. The provision (Section 1083) would allow U.S. citizens to sue foreign governments involved in injury or death to Americans. In particular, it would allow U.S. citizens to sue Iraq, thus freezing Iraqi money in US banks, for the actions of the Hussein regime. Apparently the current Iraqi ambassador to the United States, Samir Sumaidy, raised objections to this particular section 10 days ago, prompting the Bush administration action (remember that this administration heavily criticized the Supreme Court for using foreign precedent to guide the outcome of a decision).

The Democrats in Congress have a case to be upset. A look at objections to this bill, issued in the form of a Statement of Administration Policy back in May does not say a thing about this objectionable section, again because the section was added back in September. There are no other SAPs issued after the section was added, and clearly the administration had enough time to pick it out as problematic and to get the Congress to drop it or qualify it--something the administration did not do.

In President Bush's "Memorandum of Disapproval," he mentions only this one section as the cause for the action. And then he muddies the water with whether this constitutes a pocket veto. He defends the pocket veto, but also notes that he is sending this disapproval message to Congress with his objections to "avoid unnecessary litigation about the non-enactment of the bill that results from my withholding approval and to leave no doubt that this bill is being vetoed." So what gives?

First, if you are confused about the difference between the veto and the pocket veto, don't be alarmed. It seems that some elite reporters are confused as well. Take this piece from the New York Times Steven Lee Myers and David M. Herszenhorn, reporting from the "Western White House" in Crawford, TX. They write:

Because he used a pocket veto — allowing the legislation to expire 10 days after it was passed by the House — his decision cannot be overridden.

But that cannot be right, can it? If President Bush did not act on the bill "10 days after it was passed," then the bill would automatically become law, right? The Founding Fathers worried about a President who would refuse to act on legislation sent to his desk, in essence not doing anything with it and thus not taking the political heat for signing or vetoing a particular piece of legislation. Thus in Article I, section 7, the Constitution stipulates:

If any Bill shall not be returned by the President within ten Days (Sundays excepted) after is shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it...

A Pocket Veto involves the wording following the ellipses above:

...unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

If the Congress sends a bill to the President and then adjourns before the 10 day clock has expired, all legislation dies. This is done to protect the president. For the president to veto a bill, he must send it back to the Congress for their consideration. If no one was there to receive the bill, then Congress could run out the 10 day clock and the bill would automatically become law--hence the Pocket Veto provision. But Congress may adjourn yet leave instructions for those left behind regarding messages coming from the White House. In this case, Speaker Pelosi instructed "the House clerk to accept any communications--such as veto messages--from the White House during the month long break." And the Senate, it has not technically adjourned in order to prevent President Bush from making a recess appointment. Thus a Pocket Veto will not work, thus prompting Bush's discussion about a Pocket Veto, and then ending with a statement that his message should "leave no doubt that the bill is being vetoed."

Not the way the administration wanted to end this year, I am sure, particularly given just how mismanaged this has been (his team overlooked this provision--"While my Administration objected to an earlier version of this provision in previous communications about the bill, its full impact on Iraq and our relationship with Iraq has become apparent only in recent days."

Wow!

What A Let Down

President Bush was given a massive appropriations bill (so called "Omnibus" spending bill) that wrapped up this legislative session. Congress was unable to complete appropriations, and thus had to bundle what was left and send it to the president for his consideration. President Bush had previously threatened to veto this bill (HR 2764), but in the end he got what he wanted out of it (which is usually what happens with these type of bills).

What is also normal with Omnibus bills are a litany of challenges in the president's signing statement. For instance, H.J.Res. 2, which is an Omnibus bill for FY 2003 that contained 35 challenges. Even better is H.R. 2673, which is the Omnibus for FY 2004. President Bush's signing statement of H.R. 2673 contained 50 distinct challenges. So what a let down when we get to H.R. 2764. President Bush lightly slaps the Congress on the hand for not reducing earmarks (although he doesn't say how many earmarks were added by the administration). And then he adds the challenges. Now this is a guy who specifically picked out things the complain about in previous signing statements. For instance, the 2004 Omnibus had the following language:

The executive branch shall construe as advisory the provisions of
the Act that purport to: (1) direct or burden the Executive's conduct of
foreign relations, including sections 514, 531, 548, 557, 570, 571, 589,
610, and 618(b) of, and language relating to an agreement under the
heading ``Other Bilateral Economic Assistance, Economic Support Fund''
in, the Foreign Operations Appropriations Act; and sections 404, 612,
and 635 of the Commerce, Justice, State Appropriations Act and language
in that Act relating to World Trade Organization negotiations and United
Nations Security Council voting; (2) limit the President's authority as
Commander in Chief, such as language under the heading ``Andean
Counterdrug Initiative'' in the Foreign Operations Appropriations Act
and section 610 of the Commerce, Justice, State Appropriations Act; (3)
limit the President's authority to supervise the unitary executive
branch, such as section 610(3) of the Commerce, Justice, State
Appropriations Act, and sections 618 and 628 of the Transportation,
Treasury Appropriations Act and the language in that Act relating to
Office of Management and Budget (OMB) review of executive branch orders,
activities, regulations, transcripts, and testimony; or (4) restrict the
President's constitutional authority to make appointments, such as
section 604(c)(3)(B) of the Foreign Operations Appropriations Act and
subsections 112(a) and (d) of the Commerce, Justice, State
Appropriations Act.


This is what President Bush says in the current signing statement that hints of a challenge:

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.


Blow me away!

It seems that the heightened attention to the signing statement combined with a change in party control of Congress have had a measurable effect on the use of the signing statement. Most notable is the drop in signing statements that contain challenges. Up to this bill, President Bush has issued just one signing statement that contained 11 challenges. Whether this effect is permanent remains to be seen, but clearly there is an effect. The next session--President Bush's final year in office--should bring less attention to what he is doing in office. First, the belief that a lame duck presidency means the president is impotent will work to his advantage as all eyes turn towards the next president. And second, a presidential election will drain press resources to follow how President Bush flexes executive power.

Merry Christmas

Merry Christmas everyone.

Rhetorical Signing Statements in Action

President Bush has issued a couple of rhetorical signing statements this week that are textbook, from the warm congratulations to all and the "group hug" behind the President, who is seated and signing the bill into law.

First up is the "Energy Independence and Security Act of 2007," or H.R. 6. Visually, you have the (mostly) huddled congressperson flanking the president, who is seated and signing the bill at a desk that has a nice sized placard stating: IMPROVING FUEL ECONOMY, REDUCING OIL DEPENDENCY. You have the warm banter:

"I think that's Senator Domenici there is (sic) disguise--(laughter and applause)--looking pretty handsome, isn't he? (Applause)"

The bipartisan congratulations: " I do welcome members of the Cabinet who've joined us. I particularly want to thank the Speaker and the Leader. I appreciate your leadership on this important issue. (Applause.) Speaker Pelosi is here with Congressman Steny Hoyer, House Majority Leader; welcome, Mr. Leader. (Applause.) Leader Reid has brought members of the Senate with him: Senator Inouye, Senator Bingaman, Senator Stevens -- (Senator Domenici)-- I appreciate Congressman Dingell and Congressman Markey, Congressman Gordon -- these are all leaders on their respective committees that help bring this bill to my desk. I also want to welcome all the other members of Congress who have joined us. (Applause.)"

And finally an explanation of the bill's purpose: more reliance on biofuel, reduction in demand for oil by increasing fuel economy standards, the use of energy efficient light bulbs.

All in all, a 10 minute process. And the intended audience? Lots of interest groups and energy corporations who wish to mostly praise the president--press releases designed to echo the president's comments. For instance, the energy company VeraSun, "a leading producer of ethanol" applauds "the work of our leaders in Washington D.C., for their vision in putting our country on a path toward greater energy diversity and sustainability. Or, a release by a think tank, the "Golisano Institute for Sustainability," who offered up its director, Nabil Nasr, who "calls today's signing of the (Act) 'a tremendous step forward.'"

Second, moments after the first, President Bush gets out in front of another group of important looking people to sign HR 4118, the "Prevent Taxation of Payments to Virginia Tech Victims and Families Act." Here again, President Bush is signing the bill at his desk (and what an impressive desk it is) while the assembled guests look on. Next, he congratulates all who helped get this bill to his desk, including both the President of Virginia Tech, the Mayor of Blacksburg, and the Governor of Virginia. President Bush winds up this three minute ceremony with a bit of empathy: "And so I want to say to the families who still suffer, we think about you. And to the students and faculty and alumni and leadership of Virginia Tech, thank you for helping those who suffer reconcile and recover from the grief they feel. So it's my honor to sign this important piece of legislation." This signing statement had a much more general distribution, getting picked up by major newspapers and wire services, as well as the college newspaper at Virginia Tech.

Third, President Bush's signing ceremony for the bill aimed at the home loan mortgage crisis, HR 3648, the "Mortgage Forgiveness Debt Relief Act of 2007." In this ceremony, President Bush has a mixed assemblage of important guests (Male-Female, Black-White, Congress-Cabinet) crowded behind while he signs the bill on a desk with a new placard on the front, HELPING AMERICANS KEEP THEIR HOMES (I wonder how much money is spent each year making these things?). President Bush follows protocol by singling out the important players for his gratitude:

"I thank my Secretary of the Treasury, Hank Paulson; and the Secretary of Housing and Urban Development, Alphonso Jackson, for taking the lead in helping people stay in their homes. I particularly want to thank the Chairman of the Finance Committee, Max Baucus; Senator Debbie Stabenow of Michigan; and Senator George Voinovich of Ohio, for sponsoring this legislation.

I want to thank Jim McCrery of the House, Stephanie Tubbs Jones and Rob Andrews. Appreciate you all being here.

I want to thank the staff who works hard at the Treasury and HUD to make this deal work. Appreciate your hard work."

After this, a preface to why the legislation is needed and all of the actions that the president has done on his own to combat the crisis:

"My administration has taken strong steps to help homeowners avoid foreclosure by making it easier to refinance loans. We gave the Federal Housing Administration greater flexibility to refinance loans for struggling homeowners. We helped assemble a private sector group of lenders, loan servicers, investors, and mortgage counselors called the HOPE NOW Alliance. This group has agreed on a set of industry-wide standards to help those with subprime loans refinance or modify their mortgages, so more families can stay in their homes. "

Next is a list of what this legislation will do to remedy the problem, followed by a backhanded swipe at the Congress:

"The Congress needs to pass legislation permitting state and local governments to issue tax-exempt bonds for refinancing existing home loans. Congress needs to pass legislation strengthening the independent regulator of government sponsored enterprises like Freddie Mac and Fannie Mae, so we can keep them focused on the mission to expand home ownership. Congress needs, as well, to complete work on responsible legislation modernizing the Federal Housing Administration, so that we can give the FHA the necessary flexibility to help hundreds of thousands of additional families qualify for prime-rate financing."

This signing statement was intended for a mixed audience--first, the general population who are aware that this is a big problem, either because it gets covered by the press (local and national, print and broadcast), or because they or someone they know is caught up in the problem itself. Second, there is the targeted audience such as those in the real estate or lending business itself.

Thus far for 2007, President Bush's rhetorical signing statements are nearly even to the total number of rhetorical statements issued in 2006. In 2006, he issued a total of nine rhetorical signing statements, and to date, for 2007, he has issued a total of eight. Where the big difference so far is in the constitutional challenges. In 2006, President Bush issued a total of 24 constitutional signing statements with a total of 243 distinct challenges. In 2007, he has one constitutional signing statement with a total of 11 challenges. Some may argue that there have been so few signing statements of any variety because Congress has not gotten much to his desk, or what it has gotten to him has been insignificant, such as renaming post offices or roads. But that has not been entirely true. Sure, the Congress has gotten its fair share of trivial legislation to his desk, but it has also gotten some substantive items that have been signed without comment, a true break from his past. And part of this reason has to be the switch in control of the Congress coupled with the intense publicity the constitutional challenges received in 2006 and sporadicly in 2007. And of course we have not seen what he plans to do with the massive omnibus spending bill that just crashed through the roof of the White House--something the president has asked his new OMB director (Jim Nussle) "for ideas for what to do" with it.

Senate Testimony

Last October, the Senate eagerly sent an invitation to former OLC-head Jack Goldsmith to testify before the Judiciary Committee--this after Goldsmith's book, The Terror Presidency had been available to the public. The Democrats on the Judiciary Committee thought they had another Bush loyalist bent on sticking it to their former boss. Nothing could have been further from the truth.

The Senate Democrats had only themselves to blame as Goldsmith's book was clear that he had not lost faith in the Bush administration. Thus when Goldsmith didn't criticize the administration, the Democrats were stuck, unable to blast away at Goldsmith after they invited him to testify.

The Senate Judiciary Committee just released the transcript from that October hearing. I encourage you to skip over the accolades and other self-promotion from many of the senators and get right to the questioning.

(Kudos to the Federation of American Scientists for publicizing this--it is clear the Senate Dems wouldn't).

Update

CQ Reporter David Nather has informed me that the article on presidential power 08 is now partially up on the free CQ site. It is under the link, "New Handshake, Same Grip."

A Promising Start

David Nather, a staff reporter for Congressional Quarterly, has an article in the December 17 edition of CQ Weekly, which unfortunately is available to subscribers only. Mr. Nather was kind enough to send me a copy because I helped him as a backgrounder when he was trying to conceptualize how the piece would flow. So what he asked me is to come up with a list of questions that should be asked to the candidates about presidential power, including the use of unilateral devices such as the signing statement, that are not likely to get asked by most reporters who are simply interested in the horserace. It was a request that I was only too happy to fulfill since I have given some thought to this very subject in my role as a professor for a course on the Media and Politics, where I have been heard to say that the American public is ill-served by questions of process.

Nather put together a fine, seven page article that has all sorts of useful nuggets for other reporters who are looking for an angle that is unlike what the pack is reporting. This includes a nice inset list of key terms, such as "unitary executive" to "inherent powers." CQ also sent a list of written questions on specific issues relating to the use of presidential power, from the use of prerogative power to signing statements that qualify or negate provisions of law. Of all the major candidates who received this questionnaire, only John Edwards answered all the questions. Thus in place of those questions that went unanswered, the CQ folks simply dived into the candidate backgrounds--looking at how those who were executives behaved, particularly in relation to the legislative branch. Those with no executive experience, they looked into speeches, background reports or "white papers," or legislation that implicated executive power. Also whether the candidate him or herself has evoked secrecy to protect sensitive political or personal information. What they found, which is self evident, is those who have executive experience are those who have been more protective of and aggressive with executive power.

Nather's article then looks at each one of the candidates under scrutiny, balancing where they support the powers of congress to investigate, fund, and oversight with the powers of the presidency. What is missing from this examination are the internal and external forces that push a president towards unilateralism and centralization of power.

Internal

The Institution of the Presidency

One of the more powerful internal pushes towards the greater centralization of power is the institution of the presidency itself. When the new president takes office in January, 2009, he or she will take hold of an institution with thousands of employees who have been there long before he or she arrived, and many of these employees are dedicated to protecting the powers of the presidency. For instance, inside the Department of Justice is the Office of Legal Counsel, who has built up precedent going back decades of advancing the president and his powers over the opposition from Congress, the courts, the public, and so forth. When the president receives a bill on his desk, it will already contain constitutional objections to various provisions of the bill. And the president is going to be told by his advisers to listen to the OLC because you do not want to open a door that weakens power for your presidency, or those who come after. The OLC will also be there when the president wants clearance to do something that others are telling him he cannot do. For instance, back when the "video news release" was a major issue, and the Government Accountability Office--an agent of Congress--told the president that any executive branch agency sending out these VNR's to local television stations were violating federal law against propaganda, and thus should cease and desist. Did the president listen? Heck no, he simply asked the OLC to give him a ruling on it, which it did, in favor of the president's position.

Or, there is the Office of Management and Budget, waiting to crack heads of any executive branch agent who hints at doing it his or her own way. After eight years of a Republican presidency, if a Democrat wins in '08, the new president will turn to OMB to run roughshod over those with Republican sympathies. This will mean empowering sub-entities like the Office of Information and Regulatory Affairs to lean on any bureaucrat who refuses to play ball--even if Congress is giving this bureaucrat its full weight and support.

Reelection

Our new president will also be thinking heavily about 2012, when he or she has to run again. He or she will be thinking about 2012 because the entire political system has already begun thinking about it. Candidates will have already signaled that they are going to run, and our new president will be concerned that he or she can return to the voters with a winning record. While four years may seem like a long time to you or me, it isn't for those in Washington D.C. Our new president made campaign promises that he or she will be judged by in '012. The problem is that no one outside of the presidency is willing to give the president any chance to succeed. There used to be a thing called the "honeymoon," where the new president was given some breathing room at the beginning of his first term to get settled in and to make mistakes without retribution. That is a thing of the past. President's no longer have the luxury of time and space to get settled. They immediately face opposition from all sorts of forces. Thus a president becomes tempted right off to use the executive order rather than Congress to advance his own policy. Think George W. Bush and "faith based initiatives." He saw right away in 2001 that working with the Congress was a dead letter. Thus he issued an executive order creating the "Office of Faith Based Initiatives." When? January 29, ,2001--a mere nine days after he took the oath of office!

Lame Duck

What about the second term as the system begins to look forward to the next president. This is what we refer to as the "Lame Duck" period of the presidency, where a president's political capital is gone, and there is little incentive for anyone to work with him or her because a new person will come in a rewrite what has already been written. For years we assumed that this is when the president's power to do anything was at its lowest. That was mostly true in the days before unilateral action. Now a president will accomplish a great many things--setting aside millions of acres of land or lowering the permissible levels of arsenic in our drinking water--without the worry of anyone resisting him. Because the president needs a positive legacy, and because Congress has no incentive to give him or her one, the temptation to fly solo becomes irresistible.

External

Externally, there is the poisoned political environment that the president will find him or herself in, where compromise is seen as a weakness. The closely divided Congress means that the two parties will be cautious to anything the president hopes to accomplish, with the Republicans (should they remain in the minority) using the close division to obstruct anything the president hopes to accomplish.

And then there is the press. The rise of critical journalism as a lasting effect from Watergate means that reporters heap more negative than positive news upon the president's back. This negative news effects the publics perception of the president. It means that the public are predisposed to believe the president will do ill rather than good. Thus any presidential missive will be seen as a calculated move for personal gain. Attempts to reach compromises with the Congress break down because the press demands to know who wins or loses.

It becomes easier to simply push your agenda inside, where there is not the prying eyes of Congress or the press, which means that more and more things need to be secret.

These forces immediately take hold once the new president has moved his or her stuff into the White House. His or her perception of what is possible changes dramatically once he or she begins governing. Thus while it is great that CQ is taking the time to address the question of presidential unilateralism and expansive presidential power during the campaign, in the end it really does not matter much what the candidate says in response to questions. Those answers simply get tossed out the window when the great internal and external hydraulics begin working on the president. Dealing with those things should be job #1!

Get It While Its Hot

My short article on the signing statement--"Contextualizing the Signing Statement"--appears for a short time in a free preview offered by the publisher of Presidential Studies Quarterly.

Furthermore, if you are interested in the signing statement, MSNBC's Live with Dan Abrams has a segment featuring Jonathan Turley and Charlie Savage, who Abrams says "has done more than anyone else to lift the veil of secrecy" on this practice. It will give me a heart attack one day.

A Signing Statement

I think that a recent signing statement by President Bush is indicative of the type of signing statements we should expect for his remaining days in office. Rather than the bold, confrontational language of the past six years, this statement covering the "Department of Defense Appropriations Act, 2008" (HR 3222) is vague and covers a number of different sections of the bill. Here is what I mean:


The Act contains certain provisions identical to those found in prior bills passed by the Congress that might be construed to be inconsistent with my Constitutional responsibilities (sections 8005, 8009, 8012(b), 8034(b), 8052, 8082, 8085, 8089, 8091, and 8116, and the
provision concerning consolidation under the heading ``Operation and Maintenance, Defense Wide''). To avoid such potential infirmities, I will interpret and construe such provisions in the same manner as I have previously stated in regard to those provisions.

First, what specifically do these sections do?

8005--Deals with the president's ability to control communications. The section directs the Secretary of Defense to transfer funds where necessary, but before he does, he must notify the Congress "promptly of all transfers." The president has objected to this language before, arguing that the Constitution gives him the sole authority to communicate to Congress and not the inferior executive officers.

8009--Ibid. States that funds used for a "special access program" (you would think something that vague would draw the fire alone) may not be spent without first notifying the defense committees in Congress 30 days before spending money.

8012(b)--This section demands that the president "prepare and submit" budget materials for the Congress. Traditionally the president objects to this language as a violations of the Recommendations clause.

8034(b)--Ibid. The provision requires the president to submit "justification material" with his budget request.

8052--This is a "report and wait" requirement similar to 8009 above, requiring the administration to report to the "congressional defense committees, the Committee on International Relations in the House of Representatives, and the Committee on Foreign Relations of the Senate."

8082--This complaint would center on interference with the presidents executive powers. It tells the president how he may use appropriated funds.

8085--This section contains two problems. First, it tells the president how he may or may not use funds and second it commands him to receive "prior notification" from the defense committees once he has decided how the funds may be used.

8089--Tells the president how to spend "$62,700,000."

8091--Directs the president on what he needs to put in the budget request for FY 2009.

8116--Ibid. This particular section tells the president that requesting money for military operations outside of the normal budget will no longer be permitted: "Any request for funds for a fiscal year after fiscal year 2008 for an ongoing military operation overseas, including operations in Afghanistan and Iraq, shall be included in the annual budget of the President for such fiscal year as submitted to Congress..."

``Operation and Maintenance, Defense Wide''-- This objection interferes with the president's ability to direct and supervise inferior executive officers.

President Bush's demands are found in two separate "Statements of Administration Policy" sent to the House and the Senate as the bill made its way through both chambers. You can read them here and here.

Now all we need to do is wait and see how he acts upon these complaints. While waiting, it is clear that this signing statement differs dramatically from the signing statements in his past.

Attacking Addington

David Cole has a review of former Bush Justice Department official Jack Goldsmith's book, The Terror Presidency. Cole, like the Democrats on the Senate Judiciary Committee before him, seems most unhappy with Goldsmith for not unloading on his former boss.

Last month, the Senate Judiciary Committee called Goldsmith to testify about his time in the Bush Justice Department, and it is clear that they had not read his book prior to doing so. When Goldsmith praised the administration, and supported the notion that much of the problems facing the modern presidency has its origins in the Congress, for passing laws in the 1970s that interfered with prerogatives of the president.

For Cole, he titles his piece "The Man Behind the Torture," which refers to VP Cheney's Chief of Staff, David Addington. Goldsmith does spend time criticizing Addington, as does Cole, who makes him out to be a boogeyman, but the criticism is done disingenuously. What do I mean? Back in the 1970s and 1980s, it was popular for those running for national office to run against the bureaucracy. All sorts of horrors could be--and were--heaped upon the back of bureaucrats because the bureaucracy wouldn't fight back. It is the same as cursing the moon for personal problems. Blame is placed elsewhere with no chance of bouncing back.

It is well known that Addington does not do interviews. He is perfectly content to lounge in his spider hole and make his presence felt elsewhere, away from the prying eyes of the media, the Congress, and the American public. Thus for critics, it is easy to place all sorts of blame at his feet. For Goldsmith, blaming Addington makes it easier than placing blame where it is deserved--at the feet of the president.

There are additional problems I have with Cole's critique of the book. Cole chastises Goldsmith for not criticizing administration policy on its merits, instead seeking the diplomatic route by obtaining "congressional authorization for them." I am not sure that it is the job of the political appointees in the Justice Department to criticize the policy on the merits--in particular, to criticize the President for a decision that is his and his alone. What is an appropriate part of the job at Justice is to decide whether the policy is constitutional or consistent with the law. If it is not consistent with the law, then it is perfectly appropriate to recommend that the administration work with Congress--rather than to stand alone--to bolster the case for action. As a critic of the administration, Cole believes that actions he feels is politically repugnant should also be voiced by the officials inside the Justice Department. I don't think that is fair.

Finally, I think in one part, Cole misses the point. He writes: "For all its strengths as a descriptive account of an administration run amok, the prescriptive elements of The Terror Presidency are at best conventional and at worst perverse. Holding up Franklin Delano Roosevelt as a model, Goldsmith recommends that the executive branch should take a more diplomatic approach to the other branches of government. As a matter of realpolitik, he suggests, the executive might well consolidate and exercise its power more effectively by working with Congress and the courts than by aggressively asserting immunity from legislative and judicial oversight on national security matters. What is striking is not the content of this prescription, which in itself is neither novel nor controversial, but the fact that Addington and other members of the Bush administration so vehemently rejected it."

That is not what Goldsmith was saying. Goldsmith argued, quite correctly, that the administration--in particularly Cheney and Addington--resisted any action that involved the Congress for fear that it would be interpreted as precedent for congressional meddling. And that of course is absolutely correct. If Cheney and Addington could put down their blinders for one minute, and recognize that the Congress of 2001-2006 was willing to do whatever the president wished, it could have enhanced the powers of the presidency far greater than the unilateral strategy they chose. And that is right on the button.

Laughing Out Loud

The Commission on Presidential Debates announced today the four sites to host the presidential and vice-presidential debates, and their pick is a real head scratcher as well as insulting to the intellect of those excluded from the pick. First, the choices:

• September 26, 2008-University of Mississippi in Oxford, MS--Focus on domestic policy
  
• October 7, 2008--Belmont University in Nashville, TN--townhall meeting
  
• October 15, 2008--Hofstra University, Hempstead, NY (will also be host of the "Bush Presidency" at some point in the next decade)--focus on foreign policy.
  
• October 2, 2008--Washington University, St. Louis, MO--VP Debate.

The two back up sites, if need be, are Centre College in Danville, KY--also a host of the VP debate in 2000, and Wake Forest University in NC.


The New York Times had a blurb on the pick, framed from the perspective of New Orleans, which is deeply offended that it was not picked--apparently it was led to believe that it was among the final selections, and how it knows that is beyond me.

New Orleans was told that it was not selected because it had "not recovered sufficiently from Hurricane Katrina." The Democrat Co-Chair of the Commission said that New Orleans was not chosen because it "was not read for a big event." And yet the University of Mississippi was picked, and Oxford, MS has only 700 hotel rooms to accommodate the 4,000+ who travel place to place to either cover the debate or administer it. The remaining 3,300 who aren't able to book a room will be "bused" from Tupelo, MS. How in the world is Oxford, MS "ready for a big event"?

When explaining the choices, the Republican Co-Chair, Frank Fahrenkopf, Jr., declared that the picks were not based on political influence, but rather "technical criteria and geographical balance." Anyone want to explain to me how TN, MS, and MO are geographical balance? More likely geographical clustering.

Furthermore, why aren't "battleground" states in the mix? MS has six electoral votes and TN has 11, as does MO. NY has 31. But none of these states are likely to be in play. MS, MO and TN are Republican states, and NY is a Democratic state. Why wasn't Ohio, PA, or Florida chosen?

One final LOL comment by the Commission--they have apparently changed the debate format so the candidates can now ask questions of one another, when the rules up to the point stipulated that candidates address only the moderator. And here is what Co-Chair Fahrenkopf says about that: "The candidates aren't going to dictate to us anymore." HAHAHAHAHA. Read the Memorandum of Understanding from the 2004 debates and then tell me whether you believe the bluster coming from Fahrenkopf!

The other diversion from the past is the addition of Internet questions, but I won't hold my breath that that will mean much.

Symposium Proceedings

The symposium I attended last February at the William and Mary Law School on the presidential signing statement is finally publishing the paper proceedings in the December 2007 issue of its journal, the Bill of Rights Journal. You may see a list of the papers at the Journal's webpage.

Good December

I have two articles, in two different journals, appearing in the December 2007 issues, making for a pretty good December. The first is a co-written piece with my colleague, Bryan Marshall, that appears in the recent issue of "White House Studies." This issue of WHS features several essays comparing the Bush Presidencies, and our article is titled "The Bush Presidencies and the Unitary Executive Theory: The Implications of Presidential Signing Statements."

I also wrote for the special LAW section of "Presidential Studies Quarterly" an article titled "Contextualizing the Signing Statement." I wanted to both correct the distortions of the signing statement and provide context in a way that was accessible and easy to read--the article is less than 20 pages, and discusses how it has been used over time, the reason why the Reagan administration began adding it to the legislative history of bills signed into law, and ways the Congress can effectively respond to the use of the signing statement without having to bend over backwards to do so.

My hope is that both of these articles add to our understanding and to the discussion involving the signing statement and the nature of presidential power.

Interesting

For those who keep up on president-congressional relations, you often hear the press talk about the latest "veto threat" issued against a particular bill working its way through the Congress. For those who wonder where these veto threats are found--does the president actually call up "the Congress" and threaten a veto?--they are actually contained in a document known as a "Statement of Administration Policy," or a SAP.

Unless you looked carefully, it was difficult to find where these SAPs were located. You would have to know to go to the Office of Management and Budget's webpage, scroll down the page, and look on the left hand side almost 3/4 the way down under "Legislative Information," and there you would find "Statements of Administration Policy" (the link takes you to the OMB webpage as it existed in 2006).

I went to the OMB webpage today, and lo and behold, right there at the top, on the right side of the webpage is a link: "Most Recent SAPs." It all seems right. During Republican control of the Congress, the administration would issue these veto threats, yet to keep the illusion of a Republican president cooperating with a Republican Congress, it made it difficult for the lay person to find. Now that the Democrats have taken over, you have the president emphasizing his veto power more prominently by moving the SAP link to the top of the OMB webpage for anyone to find. You certainly would be hard to defend that this was simple "web redesign."

Frontline

Tonight, PBS's Frontline will air a special on VP Cheney titled "Cheney's Law." It is on at 9 pm (check your listings). If you miss it, Frontline is great at making the video available online.

You can watch a video on it if you want the short version.

The producer, Michael Kirk, has produced nine other specials, all on the Bush administration. That guy should send President Bush a thank you card when he leaves office for giving him so much material.

The special will also include an interview with former OLC head Jack Goldsmith, author of the new book Terror Presidency. I am just about finished with the book, and I owe a combined review of it and Charlie Savage's book Takeover. I will say more about both when I finish that, but just on Goldsmith's book--I am willing to bet that he did not come up with the title, and I wonder whether there was a fight between the author and the publisher over the title since Goldsmith is not as hard on the administration as the title would suggest. In fact, his main beef is not with policy or tactics--even the use of rough interrogation techniques--but with Addington, VP Cheney's right hand man. Thus I am sure the interview with Goldsmith will contain a lot of criticism and discussion of the role that Addington has played in the GWOT.

A Call For Papers

The Political Science Department at Mount Union College in Northeast Ohio (just south of Cleveland and north of Canton) is holding a conference looking at the legacy of the current Bush administration on March 1, 2008. The deadline for submitting a paper is December 15, 2007. You can find out more information at www.muc.edu/bush_symposium

Even if you are not up on writing a paper, it doesn't mean you cannot attend and participate as an audience member.

Where Has The Concern Gone?

On today's "This Week with George Stephanopoulos," the deep-thinking Stephanopoulos had as a guest New Mexico Governor and Presidential wannabe Bill Richardson, who also served in the Clinton administration as an ambassador to the UN and as Secretary of Energy. Just so Richarson knows that Mr. S does not see him as a serious contender for the nomination, he as Richardson if he instead would consider a run for the Senate in 2008 not once but two different times.

During the entire interview, Mr. S asked him about his plan to get the troops out of Iraq immediately, about losing a key supporter in South Carolina, and a host of other process-oriented questions. What he did not ask him anything about was his position on presidential unilateralism--you know, whether it is legitimate to use the signing statement to get around the Congress? If he would have asked, he might have had an answer that not only interested his viewers but also set him apart from the other talk shows on Sunday.

Richardson, no doubt, would have told eight dwarf that there are times when politics gets in the way of Congress doing its duty to the American people, and when that happens, you simply have to dismiss whatever actions the Congress takes. And Richardson may have even given Stephanopoulos his support for the unitary executive theory of presidential power. How would I know such things?

If you remember back in 1999, the Clinton administration not only was dealing with impeachment and the Lewinsky controversy, but also a series of newspaper reports about employees at our nuclear labs stealing information and selling it to the Chinese. Clinton was forced to convene a task force, known as the Presidential Foreign Intelligence Advisory Board to "undertake a review of the security threat at the DOE's weapons labs and the adequacy of measures that have been taken" to reduce such a threat. When PFIAB concluded its work, it found that the problems were too numerous and recommended a complete reorganization at DOE in order to put in place an individual who would oversee "all nuclear weapons-related matters previously housed at DOE," and to insulate this person from political pressure. In layman's terms, the Republican-Congress wanted to place an executive branch officer who would not fall under the direction of the president--many of the same Republicans in the past year who stood up and matter of factly proclaimed a right of a president to hire and fire any executive branch officer (with Arlen Specter adding secret language to the Patriot Act reauthorization giving the president the power).

The administration battled a number of bills that sought to give the Congress more say in the way in which the president controlled inferior administration officials. Despite its best effort, the Republicans who controlled the Congress used the conference committee to bamboozle the administration. The conference committee is a closed committee that contains hand-picked members to work out the differences between House and Senate bills. In the conference for the "National Defense Authorization Act for FY 2000," however, the Republicans created the "National Nuclear Security Administration," whose director would enjoy semi-autonomy to care for "the safety, reliability, and effectiveness of the US nuclear weapons stockpile, nuclear non-proliferation, and naval nuclear reactors." In President Clinton's signing statement, he noted his displeasure for the sneaky way the Congress went about creating this new office in light of the repeated communications from the administration that it opposed it. Clinton argued that the new director, free from the president's direction, would "impair effective health and safety oversight and program direction of the Department's nuclear defense complex." So in response to the strategy the Congress deployed to get around the veto (placing this language in a necessary bill), he ordered the Secretary of Energy--Bill Richardson--to take on the duties of this new director until one could be appointed, at which time that person would fall under the president's direction.

The Republicans in Congress were furious that Clinton put his own crony in a position that was meant to be free from political pressure and then claimed that once appointed, the director would not enjoy the autonomy they envisioned. So Congress did what it failed to do the first five years of the Bush administration--it called in a member of the President's Cabinet for tough questioning. The Congress called in Richardson to explain why he--and the president--were ignoring he law. Rather than showing contrition, Richardson told the House Armed Services Committee that he did not feel any obligation to follow the intent of the law because the version the administration supported was sunk in an underhanded way by the congressional Republicans and this new agency, which the administration vociferously opposed, was added in secret in order to embarrass the administration. When Richardson was shown testimony given by the General Accounting Office (now the Government Accountability Office, or GAO) and the Congressional Research Service that the action by the administration undermined our national security, Richardson responded with: "I have yet to find the GAO to say something positive about anything."

The administration did appoint a new director in the spring of 2000, but by this time the Congress had passed additional legislation specifying the responsibilities of the new office and outlining the circumstances of removal, which would be for "inefficiency, neglect of duty, or malfeasance in office." President Clinton qualified this language in a signing statement by defining "neglect of duty" to mean "a failure to comply with the lawful directives of policies of the President." Days later Congress sent another bill to the president, with a provision meant to respond to his signing statement, by stating: "The exclusive reasons for removal from office as Under Secretary for Nuclear Security of the [new director] shall be inefficiency, neglect of duty, or malfeasance in office." Not to be outdone, Clinton again qualified in his signing statement that he understood "neglect of duty" to "include, among other things, a failure to comply with the lawful directives or policies of the President." And so it stood. Clinton never acquiesced, though his time in office quickly ran out.

The bigger part of this story is the role Richardson played in defending a strategy ripped right out of the unitary executive playbook. And the fact that it was a strategy advanced by Democrats, and not Republicans. Here was a great chance to ask a presidential candidate a question that gets at the heart of presidential power in the 21st century, and Stephanopoulos chose to let it slide in the interest of letting Richardson know that he is not a credible candidate.

Breathless

Michael Collins joins a long list of contributors to the website OpEd News in arguing against the use of the signing statement my misconstruing what the signing statement may be used to do.

The contribution is an opinion piece, and opinion pieces often selectively pick the evidence in order to bolster the argument. But good opinion pieces don't deliberately make up things in order to win. That tactic is left to the likes of Bill O'Reilly and other howlers on the Right (and yes, I have just selectively picked my evidence).

Collins begins by referring to a "New York Times" editorial that claimed the signing statement is used by President Bush to declare "his intention not to enforce anything he dislikes."

As I have argued before, even this president grounds his challenges within the parameters of the Constitution. Never has this president or any other made a claim: I challenge the First Amendment, therefore the rights guaranteed under the First Amendment no longer apply. Or "Section 202 of this bill provides funding to clean up Lake Erie. I don't like clean lakes, therefore tough luck Cleveland." You may say that my examples are distorting and extreme, but if so, then how do you justify "the signing statement is used by President Bush (or any president) to refuse enforcement of anything he dislikes"?

If you read Bush's signing statement (or any president's signing statement), when he challenges a provision of law, he does so by asserting some constitutional obligation to refuse enforcement or defense. Now you may disagree with the way in which he is interpreting the Constitution, but that doesn't seem to be what is happening here. Even the Congress, which is clearly the body that should be challenging the signing statement, refuses to go toe to toe with the president's understanding of the Constitution, instead wagging its collective finger at the courts and telling them: "You are not to use the president's signing statement as guidance to interpretation." Why aren't there OpEd pieces about this?

Other problems with Collins's article:

• Like a great many other people, he declares the signing statement illegitimate because it isn't mentioned in the Constitution. Come on, are we all that simple? The Constitution doesn't say anything about funding a space program, but that doesn't stop the Congress from doing so. The Constitution does not say anything about judicial review, but do we deny that it exists? This represents the worst form of argument.
• Collins also claims that the power to resist items deemed unconstitutional is a power "not granted to the president." He doesn't say who it is granted to, but my guess would be that he thinks this is a power given only to the courts. But if we believe only the courts have final say, then we will have thrown out checks and balances and placed primus inter pares, the court's place as first among equals. Instead, the Constitution places within each institution the power and obligation to interpret the meaning of the Constitution for itself--a theory known either as Departmentalism or Coordinate Construction. And if you do not believe the Founders meant for this, then why not read them yourself.

The final thing that makes for poor argument is to be so blatant about your evidence. Collins, in treating the recent history of the signing statement, only singles out Republican presidents. It is clear that if the challenges were made by a Democrat, then the bluster would turn to praise.

Tell No Secrets

Charles Fried once stated at a conference on the Reagan administration that the goal of the Reagan legal team was to leave the Office of the Presidency much stronger than the way they found it--that is to allow a future president an easier ride than they had. This means that the administration would push back against any advance on executive branch prerogatives from Congress, the Courts, the media, and the public. It also meant the adoption of a unilateral strategy, complete with the development of unilateral devices, in order to advance preferences that were blocked in the normal channels of doing business. And finally it meant not pushing unilateralism in a way that lost the support of the public and fellow partisans.

The current Bush administration took that advice to heart in the first term, aided of course by the wide berth given it following the 9/11 attacks. But the second term has been set backs a plenty. And it appears that one more may be in the works. Steve Aftergood over at the Federation of American Scientists Secrecy Project tells us that the Supreme Court has is considering hearing an appeal challenging the "state secrets" doctrine.

For those who do not know what this is (as if!), the doctrine was borne out of a 1950s airplane accident (actually a B-29 bomber) that killed three civilian engineers. The widows sought information as to the cause of death, and the government refused to provide it because it endangered national security. After the government lost in the lower courts, the Supreme Court took the case in 1953 and the doctrine was born--where asserted, the executive branch can prevent even the courts from reviewing protected information (this LA Times story does a great job providing an overview of what the doctrine is and why it is at the center of a controversy today).

The courts have supported the doctrine ever since, but the Bush administration has begun to assert it so often that it has finally drawn the ire of the federal courts, and potentially the Supreme Court. Aftergood quotes the petitioners: "The proliferation of cases in which the government has invoked the state secrets privilege, and the lack of guidance from this Court since its 1953 decision in Reynolds, have produced conflict and confusion among the lower courts regarding the proper scope and application of the privilege."

Whatever the outcome, clearly the Bush administration is breaking the Fried rule, and if you listen to them, their own rules about handing off a institution better than they found it.

Read em and Weep

If you needed an example of the typical rhetorical signing statement, then look no further than to President Bush's signing of S.1--"The Legislative Transparency and Accountability Act of 2007."

This bill is in response to a theme the Democrats ran on in the 06 Midterm election, where lobbyist corruption became the Republican's Waterloo.

This bill was introduced back in January of this year, and immediately drew a "Statement of Administration Policy," or SAP. There Bush blasted the bill for not containing earmark reform (even though he is responsible for a number of earmark requests in many of the bills in this Congress), and he admonished Congress to give him the Line Item Veto (despite the fact that he has not used the veto responsibly--see Woodward's expose on Greenspan).

This type of signing statement is what you get when the President's opinion numbers are down AND he is faced with a bill that resonates with the American public. Because interest is high, the chances of using his signing statement to eradicate parts of the bill would only bring him more grief.

So he is happy to sign, but then launches into a tirade about the shortcomings of the bill: The language is confusing, it will hurt the recruitment of qualified candidates (as if a qualified candidate truly exists), and so on.

But what you get is a president who is clearly not happy to have to sign this particular piece of legislation.

Forget What You Have Learned

You probably already know what happens when the lame duck period kicks in for a president, right? It is the period of time where the president is at his weakest, as the country, and more importantly, political elites begin looking to the next administration and how to deal with the next president. The new president will not be able to get anything ambitious passed through the Congress because the Congress has no incentive to work with him, particularly when the other Party controls the Congress. You are probably taught this iron law of presidential power as early as high school government class, and most definitely there will be an instructor in the American Government 101 who will not just teach this fact, but will also include it on the exam. Typical of just how powerful this ideal is can be found in this May 17 story by CBS reporter Dick Meyer, who wrote: Short of another disaster on the scale of 9/11, George Bush no longer has the power, credibility or ability to effectively govern for the rest of his term in office.

While your Intro to American Government professor may want you to believe this, and even a reporter at CBS News will write it with certainty, the fact of the matter is, it is not true--or at least it is not true to the level of an iron law. Sure, the president's ability to get anything through Congress will be greatly diminished, and his ability to move the public won't be what it once was, it is wrong to count the president out. In fact, the president may be able to exercise as much power at the end as he did at the beginning.

Several years ago I served as a discussant on a panel where the theme was unique exercise of presidential power, and one paper described this lame duck power exercised by the president. The paper went on to get published in the flagship journal Presidential Studies Quarterly, and I recommend it highly to any of you interested in presidential power.

Titled "The Last One-Hundred Days" and written by William Howell (then at Harvard and now at the University of Chicago) and Kenneth Mayer (at the University of Wisconsin at Madison) looked at how the president turns to the administrative agencies in order to accomplish his goals, thus succeeding administratively where he would fail legislatively. Here is a list of things that President Clinton managed to do in his last year in office:

• He lowered the acceptable levels of arsenic in our drinking water from 50 parts per billion (ppb) to 10 ppb, which would go into effect in March 2001--leaving the political controversy in the lap of the new administration. When President Bush hinted at scrapping the rule and moving back to 50 ppb, the DNC ran television ads with a child asking its mother: "Can I please have some arsenic in my water, mommy?"
• In his last week in office, he issued a presidential proclamation which declared one million acres private land as public monuments. If the Congress wanted to reverse, it would have to repeal a 1906 law with a new law of its own.
• He had the DC license plates changed so that the words: NO TAXATION WITHOUT REPRESENTATION appeared, knowing that this was a thumb to the eye of the incoming Bush administration, which had publicly stated its opposition to statehood. Bush had to order the plates removed from the presidential limo before it drove him to the inauguration.
  

Today's "New York Times" has an article documenting the energy in the the Bush administration to push through as much of its remaining goals administratively before the clock runs out. "Times" reporter John Broder writes: "...President Bush has his cabinet and staff busily writing far-reaching rules to keep his priorities on the environment, public lands, homeland security, health and safety in place long after the clock strikes midnight and his limousine turns into a pumpkin." And sure enough, the administration is changing a number of rules that will benefit key political interests as he is leaving office--in such areas as environmental conservation and health insurance. All the rules represent the potential to add millions of dollars to the coffers of these business. For instance, the Office of Surface Mining just changed a rule regarding the waste from blowing the lid off mountain tops. It appeared that when coal companies would blast the top of a mountain, the run off would be allowed to spill into the valleys and rivers below, which led to the blocking of water flow or worst, poisoning the drinking water for hundreds of thousands poor families. The rule had been that the companies would need to insure that this didn't happen if they wished to engage in this manner of mining, but the new rule now clears the way for the dumping of "excess rock and soil into valleys and streams." So much for the poor Appalachians whose pitiful lives just got worse.

Before we all start looking toward the next administration, it would do us well to continue to keep an eye on the current one. The Founders worried that if you remove the prospect of facing the voters from a president, you take away any incentive he has to behave himself. Sounds about right.

Signing Statement Database

Neil Kinkopf, a law professor at Georgia State University School of Law, has published an index to all of George W. Bush's signing statements from 2001 to the present. Neil's categorization represents a continuing problem with reading the Bush administration's challenges--that there are terms that shift, which I presume was deliberate on behalf of the administration, to make it difficult to track. And Neil's count is about 100 less challenges than I have recorded to date. I spoke with Neil last February when we both attended the William and Mary Bill of Rights Society conference on presidential signing statements. He told me that he was working on a database, and that he was applying a more restrictive lens to recording a challenge, although I cannot recall what that is. I am in the process now of sorting out where are counts differ and why. I am sure this is something the administration hoped for as well. "Let's get several different counts out there, and then we can make the case how does anyone know what is and is not a challenge?" Maybe.

Either way, it is a handy index which I encourage you to use and critique, if necessary.

The "Terror" Presidency

Jeffrey Rosen has an article coming out in next Sunday's New York Times Magazine on Jack Goldsmith, an attorney who led the OLC in the Bush administration, and who resigned over the politicization of the DOJ, particularly over what he referred to as the "tendentious, overly broad, and legally flawed" torture memo. Goldsmith has a book coming out later this month titled "The Terror Presidency." After Goldsmith left the Bush administration, he landed at Harvard Law School, where his arrival was not warmly welcomed. Rosen writes: "During his first weeks in Cambridge, in the fall of 2004, some of his colleagues denounced him for what they mistakenly assumed was his role in drafting the torture memos. One colleague, Elizabeth Bartholet, complained to a Boston Globe reporter that the faculty was remiss in not investigating any role Goldsmith might have played in 'justifying torture.'"

Rosen interestingly characterizes the OLC, inside the Department of Justice, as "an entity that Rosen interestingly characterizes as "the division...that advises the president on the limits of executive power." I am not sure where he derives this description for the OLC. I would define it as "the division...that advises the president on ways he may push the boundaries of Article II power." For instance, how do you describe Walter Dellinger's memo titled "Presidential Authority to Decline to Execute Unconstitutional Statutes." Is that a memo on the "limits of executive power?" Only if it was titled: "The President's obligation to enforce unconstitutional statutes." This is made all the more interesting because later Rosen says that the OLC "interprets all laws that bear on the powers of the executive branch." That suggests far more aggressive behavior than one advising the president of the limits to his power.

Goldsmith makes alludes to the central role of the unitary executive theory and the problems it created--something he callls the "go it alone' view of executive power." He says: "They embraced this vision...because they wanted to leave the presidency stronger than when they assumed office, but the approach they took achieved exactly the opposite effect. The central irony is that people whose explicit goal was to expand presidential power have diminished it." This is similar to a paper written by Political Scientist Nancy Kassop at this past week's meeting of the American Political Science Association.

What does come out clear in the piece, and something that needs more investigation, is how the central role of the OLC broke down during the current Bush administration. It is clear that the power of the OLC derives from its ability to have the definitive say over what is or is not constitutional, overridden only in extraordinary circumstances by the attorney general or the president. In the Bush administration, there exists a group of individuals who can add to or take away from the OLC decisions from positions outside the normal loop that these decisions are made. These individuals can add constitutional challenges to bills moments before the president signs them, or they can "usurp legal-policy decisions that were properly entrusted to the attorney general." These individuals, who Rosen calls the "war council," are Alberto Gonzales (when he was White House Counsel), Cheney and Addington (and Libby), and John Yoo, who had "direct access to Gonzales [which] angered his boss, AG Ashcroft." If you wish to see the explicit influence of this group, then look no further than to the well-above average challenge contained in the Bush signing statements. It is clear that most of them are not coming from the OLC, which is where they normally originate. This goes a long way toward explaining why morale is very low among career professionals at the DOJ.

In all it is a very good article made possible by Rosen's relationship to Goldsmith, who he attended law school with. There are some parts that I quibble with. For instance, he argues toward the end that :

...the Bush administration’s legalistic “go-it-alone approach is the antithesis of Lincoln and Roosevelt’s willingness to collaborate with Congress. Bush, he argues, ignored the truism that presidential power is the power to persuade. “The Bush administration has operated on an entirely different concept of power that relies on minimal deliberation, unilateral action and legalistic defense. “This approach largely eschews politics: the need to explain, to justify, to convince, to get people on board, to compromise.”

First, during most of the time under discussion, the Congress was on board with whatever the administration wanted it to do. The fact is that the Congress was not exercising its constitutional responsibility to challenge the president and his approach to governing. Instead, they saw themselves as the "junior partner" to the president. If there is a danger that stems from the Bush administration's approach to governing, it was placed there in large part by the unwillingness of the Congress to stand up and block a number of these actions that we now regard as constitutionally offensive. Second, I again assume that the "legalistic go it alone approach" Rosen refers to is the unitary executive, and where the Bush administration is mistaken on how it works is to completely ignore the fact that there is a larger political context in which these arguments take place. Bush may be right on the merits, but if the political process and political climate is not sensitive to those merits, he might has well be "pissing in the wind," to use common vernacular. It is especially clear that the administration is tone deaf when it comes to recognizing the political climate.

It Is About Time

"Have you heard the good news?" This was the question that a character on "The Sopranos," who briefly dated Tony's sister Janice, would ask anyone he came into contact with. The good news for him was the message of the Lord.

The good news for Republicans and Democrats alike (and even for President Bush if he is too stubborn to see it himself), is the resignation of attorney general Alberto Gonzales, who announced his resignation this morning (although officially gave it yesterday while he and his wife dined with the Bush's--can you imagine what an awful meeting that was? Do you hand in your papers at the beginning or end of the meeting?). Gonzales, who if you recall was initially President Bush's White House Counsel before stepping into the empty AG post at the start of Bush's second term in office. Gonzales was always a polarizing figure, yet won confirmation by the Senate--a major accomplishment given the number of recess appointments that currently exist. His recent troubles stemmed from his role in the firing of a few US attorneys who the Democrats claim were given the boot because they would not play political ball with the administration. Gonzales has gone to Congress in an effort at damage control, and in every appearance he has made the situation worse than if he had not go, which begs the question of why the administration even allowed him to go after his disastrous first appearance?

What is clear about Gonzales's tenure as AG is that the DOJ is in disarray, and things are not likely to get any better any time soon. It is crystal clear that Gonzales saw the AG as another type of White House Counsel, when clearly it is not (though this isn't the first time where the functions were blurred). The AG also has to represent US law even if it looks poorly upon his or her boss. Remember the relationship that Clinton had with his AG, Janet Reno. There were instances where Clinton wanted her to act differently than she did. So for the next AG, look to questions of political independence.

Which brings up another point--the next AG. It is likely that the problems within DOJ (low morale, political "camps") will not be dealt with by a Bush appointee. Today, Jeffrey Rosen on NPR noted that the current DOJ is filled with people who have divided loyalties and as such, will not be in the same room with one another. And it is easy to see that the next Bush appointment won't ease those problems. Furthermore, the next Bush appointee likely will be a recess appointee. The Senate Judiciary Committee is likely to pin confirmation on information that it wants, and the president simply doesn't want to give up information. And with months left in the presidency, what incentive does he have to play ball anyway?

Thus the chief law enforcement officer in the chief law enforcement agency will be non-functional until after January 20, 2009. That seems to me to be a bigger question than what is being asked so far.

FOIA Response

As I have discussed before, I had sent two FOIA requests to the DOJ asking them for copies of any communications they have had with the Congress regarding the president's refusal to defend or enforce provisions of law. And in both of this instances, I have not had an answer. In the first instance, I requested information back in 2001 on any refusal to defend, as that was the state of the law at the time. I never heard back after the initial response telling me that they received my request. In 2002, the law changed as a result of the administration's narrow interpretation of the whistleblower protections in the Sarbanes-Oxley law. Senator Patrick Leahy (D. VT) added language to the Department of Justice Appropriations bill that required the administration to inform the Congress when ever it refused to defend or enforce the law. So I sent another letter asking for information on either of these, and I heard back from them that they needed to take more time. That was over a year ago, and I chalked it up once again that I would not hear a thing.

And then this week, the DOJ surprised me and sent an answer to my request, although I am not sure that it is what I was looking for. The letter, from Carmen Mallon, the Chief of Staff, is titled "Report on Enforcement of Laws: Policies Regarding the Constitutionality of Provisions and Non-Acquiescence." To my knowledge, there is nothing like it available online, although I will allow you, dear reader, to prove me wrong.

The letter is broken down into two parts, with several subsections. The first part outlines "policies regarding the Constitutionality of Provisions" and the second part outlines "Non-acquiescence Determinations." So here it is--"a description of policies not to enforce or defend federal provisions on the ground they are unconstitutional." Now I did not ask "for descriptions," I asked for actual refusals. So this could very well be a slippery legal trick in case someone ("Ahem--Congress??) decides to find actual non-enforcement (say, like the GAO, for instance). The DOJ can always say--we never told him that we were giving actual orders of non-enforcement--our letter clearly say we were describing the kind of policies that generate non-enforcement demands. My apologies. I am getting a bit off track.

1. The administration would not enforce any policy that makes it unlawful to broadcast any ad for any game of chance (lottery, gift enterprise, etc.). The administration argues that the Supreme Court ruled, in 1999, that this restriction (18 U.S.C. 1304) is unconstitutional, and there the "Solicitor General determined that...[it] could not be applied to truthful advertisements..."


2. The administration would not enforce any policy that makes it a crime for anyone to send out information, via computer or otherwise, information on how to obtain an abortion (18 U.S.C. 1462(c). The letter referred to a Clinton-era decision arguing that the policy was unconstitutional and would not be enforced.

Subsection B deals with decisions not to defend laws deemed unconstitutional.

1. P.L.. 102-393, section 633. This law sought to deny any distiller from using the name "Crazy Horse" on their liquor. A district court found the law unconstitutional, and the Solicitor General refused to appeal it.

2. 29 U.S.C. 2613 (a)(1)(D)--the administration refused defense of the "abrogation of Eleventh Amendment immunity" related to the sick leave provisions of the Family Leave act.

3. 11 U.S.C. 106(a)--this section dealt with the Bankruptcy code and its impact upon states and their agencies. In a Clinton-era decision, "at least five courts of appeals" found the section unconstitutional, and Clinton's SG refused to appeal to the Supreme Court.

4. 26 U.S.C. 4121--this section placed a tax on coal, and again, in a Clinton-era decision, a district court held the provision unconstitutional "as it applied to sales of coal to foreign customers," and the SG decided not to appeal.

Part II, which dealt with orders to disobey a court ruling--called "non-acquiescence determinations." The administration is only obligated to report non-acquiescence of appellate and Supreme Court decisions, and not of federal district court decisions because they "are not binding precedent."

The only action listed in the letter is a decision that arose from the "Coal Industry Retiree Health Benefit Act of 1992," where the 6th Circuit found the Commissioner of Social Security lacking the authority to make certain liability decisions. From there is a list of conflicting decisions to give proper guidance, and thus the order to simply "do nothing."

Nearly all of this deals with actions from the previous administration, and not one says anything of relevant to the numerous challenges made since President Bush took office in 2001. Nor does any address the conflict with the GAO findings of non-enforcement in appropriations bills in 2006.

See what you can make of it.

It Picqued My Interest--Did It Yours?

I was speaking via email today with Patrice McDermott of the organization Open the Government regarding Bush's recent signing statements. Since last Thursday, Bush has issued three new signing statements, yet even for seasoned "signing statement" watchers, they were not easy to catch, which I suspect is deliberate. Here is why.

If you check out the News site at the webpage for the White House, you can see why. If you look at the most recent signing statement, which occurred yesterday the 9th, there are more than a dozen hyperlinks on that news day alone. So you go looking for the signing statement, you look at what should be the most obvious link to the signing statement--"President Bush Signs into Law S. 1099," yet clicking it, all you get is the following:

On Thursday, August 9, 2007 the President signed into law:
S. 1099, which extends Federal Employee Health Benefits to United States citizen employees of the Roosevelt Campobello International Park Commission.

If you make it a habit of checking the "News" page each day, you will find that the press office at the White House put one of these links whenever the presidents signs a bill into law. They are not a signing statement, but rather a signing "announcement." So for the seasoned veteran, he or she may have clicked the link above, saw that it was an announcement, and then moved on. Even if that doesn't get you, on the news page for the 9th, there are two links titled "President Bush Signs America COMPETES Act (the clever acronym for the bill). There are also two links for "Fact Sheet: America Competes Act (without the All Caps), a link for a bill that renames a post office, and some other miscellanea mumbo jumbo. If you click the link for "President Bush Signs America COMPETES Act," you find a similar announcement for the link to signing S. 1099. Only if you click the second link, which only slightly alters the first, will you find the actual signing statement. Seems like a lot of stuff crammed around the bill signing statement to be attributable to mere chance, don't you think? And if you continue in earnest to find the actual signing statement, you will find that it is of the garden variety rhetorical statement and not of the challenges which Bush is so famous for. So you may simply just give up looking, which of course is precisely what the administration wants you to do. Stop looking so they can go back to ostentatious challenges in bills of all sizes and sorts (of course we have not gotten to the big appropriations bills yet). So if you want to aggravate the administration, then continue clicking all the links of every page that mentions the fact that a bill has been.

Now the rhetorical signing statements. The three signing statements issued since last week have all been rhetorical signing statements. Remember that a rhetorical signing statement is designed to catch the attention of a particular audience--press, Congress, interest group, and/or the public. Rhetorical signing statements generally say something about the bill and then say good/bad things about Congress. And these three did not disappoint. In the bill under scrutiny here, President Bush throws in a phrase that always gets Americans humming--Bipartisan: "This bipartisan spirit of cooperation continues with the legislation I signed." But a paragraph later, he uses the rhetorical portion as it was intended:

I am, however, disappointed that Congress failed to authorize my Adjunct Teacher Corps program to encourage math and science professionals to teach in our schools. I am also disappointed that the legislation includes excessive authorizations and expansion of government. In total, the bill creates over 30 new programs that are mostly duplicative or counterproductive -- including a new Department of Energy agency to fund late-stage technology development more appropriately left to the private sector -- and also provides excessive authorizations for existing programs. These new programs, additional requirements and reports, and excessive authorizations will divert resources and focus from priority activities aimed at strengthening the basic research that has given our Nation such a competitive advantage in the world economy. Accordingly, I will request funding in my 2009 Budget for those authorizations that support the focused priorities of the ACI, but will not propose excessive or duplicative funding based on authorizations in this bill.

In one paragraph he jabs at Congress for cutting funding that would help American children to be more competitive in math and science--two areas where our children lag way behind other advanced industrialized nations--and secondly he throws that right hook about costly and unnecessary additions that stem from Congress's love of pork (and something he rarely if never complained about when he signed a number of pork laden bills passed by the Republican majority). And don't think that these are jabs that go unnoticed. Not long after President Bush signed the bill did an organization in support of it send out a press release of its own declaring victory for their members.

An organization known as the "Council on Competitiveness" (which shares the name of a White House entity in the Bush I administration that was chaired by VP Quayle) sent out a press release titled "President Signs America COMPETES Act, Major Step Toward National Innovation Agenda." This warms the heart of political operatives inside the Administration who can feel safe in the knowledge that their statement hit a target.

So in conclusion, the theme of this post is as follows: Nothing this White House--or any recent White House--is done for no reason. The decision over what type of message cast as part of the signing statement is the subject of intense inter-office deliberations (in fact, in 1985 it was because someone inside the White House removed a DoJ signing statement that the Reagan administration actually discovered its importance), which is why the president is so aggressive in protecting these inter-office memos. And the decision to provide cover for the signing statement is also a calculated decision designed to throw the scent off the signing statement.

Is This Any Way To Choose A President?

You may have heard that the 2008 primary campaign season has just gotten sillier. It all started awhile back when a number of states--more than 20 in all--moved their primary election date to February 5, 2008.

Today, South Carolina announced that it will move its presidential primary to January 19--ostensibly to preserve its "First in the South" title. We have also heard from Iowa and New Hampshire, who are only trying to preserve their "First in..." titles. This move by South Carolina is set to cause New Hampshire and Iowa to hold their primaries in early January (even possibly on New Years Day) or after Xmas--the chance that we will have a primary to select delegates in a different year than the actual presidential election.

I have argued elsewhere that this is the worst possible way to select a president. The primaries happen so fast that it keeps most Americans from registering their vote. Why? The typical voter needs a particular informational level to head to the polling place and cast their vote. The reason why more Americans vote in the presidential general election than any other election in the United States is because of the massive and sustained information blast leading up to the November vote. This is why the real general election begins following Labor Day--it is close enough to the general election to allow the typical voter to satisfy his or her informational needs. The reason why few people vote in a primary election is because it happens so far in advance of the general election and is largely over before March that most are turned off to the process. This is why primaries are dominated by the wings of the Democrat and Republican Parties. Holding a primary after Xmas or on New Years Day will not induce the typical American voter out of his or her house.

This "First in the Nation" nonsense has nothing to do with preserving an historic place in presidential elections. Like nearly everything else in American politics, it has everything to do with money. The amount of money poured into the first states is enormous--so much that Iowa and New Hampshire factor it into their budget come a presidential election year. Thus all states want a slice of that pie--hence this rush to be first.

The national political parties (DNC and RNC) have threated to block any delegate from a state that moves their date forward. For instance, the Washington Post notes that the "RNC can block half of a state's delegates to the national convention" for moving their primary date. The DNC has made a similar threat. This apparently has not struck fear in the states that are moving their date forward. Most do not believe that, come Convention time and the need to heal wounds, the national party will follow through on its threat.

Not all believe the compressed primary/long general election season is a bad thing.

Jonathan Rauch, the superb reporter/columnist at The Atlantic Monthly (as well as the National Journal) argues (sub. req.) that the compressed 08 primary season may be in the best interest of all Americans, and not in the worst interest.

Rauch suggests it works in our interest in the following ways: First, it allows more time to get to know the nominee in the general election. He uses Barack Obama as his example. Obama "entered the race with a record of inexperience no other serious contender could match." If Obama wins the nomination, he would have nearly 3/4 a year to get to know him, "an insurance policy that the country's most recent experiments with inexperience--Jimmy Carter and George W. Bush--suggest is wise."

This only holds true assuming that the average voter is already following the election, recording the positions of the candidates, and then sifting through the pros and cons to come to a rational decision. Thus in Rauch's analysis, more time would make perfect sense. The problem is that this is not the typical voter.

The larger reason that Rauch likes the compressed primary/long general election model is that it comes in close proximity to "British-style parliamentary politics: the shadow government." As he notes, in parliamentary systems like Britain, the elections happen over the span of weeks, yet candidates announce their intentions to lead years in advance. And these leaders also select "the men and women who would ascend to ministerial" positions should their party win the majority in an election. Thus in this type of system, the public gets to know the incumbent, the challenger, and knows what type of government would be in place since the inferior officers are already selected. To borrow an English phrase: Bullocks! Britain has a strong party system which makes sure that voter interest is kept high. We have nothing that works in a similar way.

Rauch is overly optimistic about the long general election season and its ability to give us a better president. He argues that in the long general election, the candidates will have more time to put in place the people who would fill the top positions. As it is now, once the candidate wins the general election, there is a mad scramble over an 11 week period to staff the Executive Branch. The fact of the matter is, the nominee already, quietly, picks who would fill the top positions. He just doesn't make that information public. In 1992, the Bush campaign cause the Clinton campaign to briefly spin out of control when Bush charged that Clinton was already "measuring the curtains" in the White House. The underlying message was the Clintons were drunk on hubris and were cock-sure they had it wrapped up, which they hadn't. Americans like a race, and they like an underdog. If a candidate assumes he or she has won, there is the prospect that some voters (and in close elections "some voters" matter a lot) will throw their support to the underdog. Hence the Clinton campaign changed strategy to make sure Americans understood that they--and not the incumbent Bush--were the underdogs.

I continue to hold hope that one day we rid ourselves of the primary and allow the political parties to make the nominee decision for us. This seems autocratic to most Americans, but in the end the party--recognizing the importance of the Independent--will produce a nominee that is more a centrist than an extremist. It also does away with the general election advertising that uses primary campaign rhetoric against the opposition. And it undermines the importance that the press has in this decision--and for my money, that is reason enough to do away with the primary.