I received a press release this afternoon from the Senate Committee on Appropriations regarding a new Government Accountability Office (GAO) report on the effect of the presidential signing statement. The press release caused my heart to flutter: "GAO researchers found signing statements in 11 of 12 appropriations acts in FY 2006 and examined a sample of 19 provisions with which the President expressed concern in his signing statements. The President objected to, and federal agencies failed to execute, public law in six of those cases--30% of the total sample."
House Judiciary Committee Chair John Conyers (D.MI) charged that "the Administration is thumbing its nose at the law" while Senate Appropriations Committee Chair Robert Byrd (D.WV) fumed: "The White House cannot pick and choose which laws it follows and which it ignores." The press release itself was titled: "GAO Examination Shows White House Power Grab."
Now that I have had time to digest the report, I am not so certain that "Power Grab" is the appropriate terminology for this Report--in fact, it sends out mixed signals that will give both sides of this issue reason to claim victory. But before I go there, let me say something about the report itself.
GAO was asked by Senator Byrd and Congressman Conyers to assess what impact, if any, the Bush signing statements have had on the execution of the law, and whether they have had any effect on how judges read the law. Remember that a long standing claim (at least since 1986) has been that the signing statement was added to the legislative history of bills the president signed in order to give judges a complete picture of the meaning of law. I have long argued that the purpose was never designed to influence judges, although if it did, what a bonus!
The GAO investigators looked at 2006, the last of Republican control of the Congress (and this makes a difference, as I will show below). They looked at 12 federal appropriations bills (normally 13), and found that 11 of the 12 carried a signing statement. In context, I can attest that a government appropriations bill is always an indicator of when a president will or will not issue a signing statement. To put another way, the presence of an appropriations bill will likely cause a substantive signing statement. A substantive signing statement is one where the president either challenges the constitutionality of a provision of law, instructs an agency or agencies on how to implement the law, and/or defines a vague or undefined provision of the law. In those 11 signing statements, GAO found 160 specific challenges by the Administration. In context, and something I can attest to, this is an undercount of the actual number. As GAO notes in the "Methodology" section, they counted only those challenges where it was specifically clear what the president was objecting to. This Administration has commonly made general objections, thus making it difficult to both "count" the challenges, but more importantly, to ascertain specifically what the Administration is doing about the challenge. Not an accident.
From those 160 challenges, GAO selected 19 to determine how the agencies responded to the challenge. Their finding? The agencies followed congressional intent in 10 cases, did not follow congressional intent in six of the cases, and in three cases, they took no action because there was no "trigger" to cause action. Often time Congress will place into the law some action an agency must take in the case of a particular event. If the event does not take place, the agency is not "triggered" into action. The GAO--in an effort at greater precision--placed the challenges into "12 interconnected categories or concerns" and then into four large groupings. Thus the signing statement challenges were grouped into the following groups:
1) Unitary Executive
2) Commander in Chief, National Security, Foreign Affairs or Policy, or Law Enforcement
3) Bicameralism/Presentment
4) Miscellaneous--Recess Appointment, Fifth Amendment
I understand the need to place the challenges into groups. I have done that in my work on the signing statement, and Phillip Cooper, another political scientist who studies the signing statement, has also recently clumped the Bush challenges. I have approached the process of grouping by allowing a reason to drive the categories. As I look at the GAO groupings, I don't quite understand how they derived the categories. First, Unitary Executive is a theory that explains why a president uses the signing statement, and is not a subset of the object itself. The GAO knows that the Unitary Executive is a theory because they cite recent work on it, albeit incomplete. I get the feeling that the researchers did not know anything about the theory, and once seeing that President Bush makes so many references to it, quickly did a search to find as much about it as quickly as possible. I don't know that for fact--just a hunch. But one thing they don't grasp is the fact that the theory explain the action, and not the other way around. When President Bush references it, he is taking a shortcut that saves him the time of listing all the specific violations that he (or rather his henchmen) have found. The second grouping is just so large that it doesn't really tell us anything--and why "Law Enforcement" was clumped into it is beyond me.
But the more substantive finding? In six cases, the signing statement seemed to prevail. Or did it? Before I answer that, let me say something about the six cases of defiance.
The first three are Chadha violations, or instances of a legislative veto (which violates the Presentments Clause and violates the constitutional principle of Bicameralism--for a law to take effect, it must pass both Houses of Congress (Bicameralism) and be presented to the President for his signature or veto (Presentments). In the first, the Pension Benefit Guaranty Corporation was supposed to ask for Committee approval before spending extra money. Instead, it spent money on administrative costs without asking for approval, yet it did notify the Committee of the action. Is that a violation? In the second, FEMA was supposed to submit a plan for housing to a Committee, yet refused to do so because it normally did not produce the sort of plan that was required before taking action. Clearly a violation. There is always a first time, and any time before the first time can be chalked up to "never having done" the particular action requested. In the third, the Department of Agricultural was supposed to get prior approval before transferring funds, which it did not do. It did, however, notify the Committees prior to transferring the funds and it responded to Committee requests for more information on the action. Is that a violation? In the first and third, there is no evidence that the Committees objected to the manner in which the agency executed the law. Furthermore, the presence of a legislative veto is dicey stuff. Formally, the Supreme Court has found them to be unconstitutional, yet informally, the president and the Congress has worked out a deal (often referred to as "comity") whereby the agency may comply, in some way, to what the Committee is requesting. And the way in which the agencies behaved is nothing new--this has been going on since 1983, the year the Supreme Court invalidated the legislative veto. In fact, you could refocus blame here--Should the President executive a provision of law that the Congress knows is unconstitutional, yet threatens the agencies (and the President's policies) if he does not comply? Who is the true victim here?
The fourth and fifth groupings were for Unitary Executive reasons. The fourth involved the Department of Defense refusing to provide separate budgets justifying the costs and contingency for a variety of policies wrapped up in the GWOT (Global War on Terrorism). The fifth again involves the Department of Defense responding to "an inquiry from the Chairman of the Subcommittee on Military Quality of Life and Veterans Affairs, House Committee on Appropriations, in 38 days, instead of 21 days as directed by the appropriations act." I placed the full quote because I couldn't believe that it was added in the study. Is responding to the request a couple of weeks late the same as refusing to enforce the law?
Why are these two considered "Unitary Executive" groupings? Because the President, as the "head of the Unitary Executive branch," gets to decide what information the Congress gets, and when. That is the rationale, at least, offered by the GAO.
The sixth group is Law Enforcement. Here the Customs and Border Patrol refused to relocate their checkpoints along the Southern Border every week because it determined that the requirement violated its mission. Instead, it shut checkpoints down "for short periods."
Finally, the GAO looked at the question of whether the Federal Courts were influenced by the signing statement, and found that they were not--the Courts only infrequently cited a signing statement, and mostly for technical or summary reasons. It rarely factored into a key part of an opinion by any Federal Court.
That is the Report in a nutshell. They offer a great section on Methodology and a nice table that breaks down the signing statement and its effect. The Report has been seized upon by the opposition--particularly the tagline that the Bush administration has refused enforcement of "30% of laws it signed." The Report does not explain what motivated the executive branch agents to not enforce a particular provision of the law. And here is where I find the Report most troublesome. On page nine, the authors add this zinger in their conclusion: Although we found the agencies did not execute the provisions as enacted, we cannot conclude that agency noncompliance was the result of the President's signing statements. I got to this part of the Report and sat back and muttered to myself: "You have got to be kidding me!" If not the signing statement, then what? Does this imply that rogue agents are violating the law on their own? Are they not effected directly by the signing statement, but instead told what to do (or not to do) via a political appointee? This conclusion, to me, is mindboggling. And I am sure it will be seized upon by the supporters of the President. In fact, the discussion ahead will proceed on political lines--what did this Report say or not say with few actually taking the time to Read it.
Here is my take on it. This Report confirms something I have long believed (and advocated): look to the areas deemed important to the President, and you will find a President willing to see the signing statement through. In the areas that are not so important? You are likely to see agency personnel following the intent of the Congress. It is clear that of the 1,100+ objections that President Bush has made, he has not seen that many through. But the same can be said in reverse. That the President also is not making all of these challenges without seeing some of them through, in some way or the other. This Report should energize congressional staff and media alike--What lies below this tip of the iceberg? Problem is that this question is not going to be asked, or attempted to be answered. At least by those in better position to get an answer than me. I shall "endeavor to persevere," as Chief Dan George was want to say.
