I was checking the news releases at the White House homepage this evening when I came across an interesting blurb from yesterday's news. It states simply: On June 14, 2007, the President signed into law S. 214, the "Preserving United States Attorney Independence Act of 2007." When I took a look at what S.214, it places limitations upon the president's appointment power and also mixes up the separate powers by allowing a district court to appoint a US attorney until a vacancy is filled.
I immediately wondered why there was no signing statement to this bill, because this is the kind of legislation ripe to draw a signing statement that says something like this: the president has the sole authority to appoint inferior officers as the head of the unitary executive branch. Since there was no signing statement, I looked to see what the Statement of Administration Policy (SAP) said about this bill, and lo and behold, there was no SAP as well. What gives?
Well, here is the long and short of the story. S.214 strikes out an amendment added to the Patriot Act reauthorization last year by Senator Specter which eliminated a practice that had existed for decades prior to Specter's Amendment. The practice dictated that when a vacancy occurred in a US attorney position, the Attorney General had 120 days to make an interim appointment so long as it was not a person who the Senate had already rejected. At the end of the 120 day period, if a successor was not appointed, then the district court could appoint the person until the vacancy was filled.
To give you a sense of just how much the Congress enabled the exercise of power in the first six years of the Bush presidency, Senator Specter's amendment eliminated the district court's role in the process and allowed the AG to appoint a person permanently or until the vacancy was filled. The only thing that remained was the prohibition on naming someone who had already been rejected.
So the White House could get around the confirmation process by naming an interim attorney (say eight persons recently canned for performance related issues/because they serve at the pleasure of the president/because they would not engage in political prosecutions/persecutions) who would serve while the administration "searched" for a suitable replacement.
S. 214, introduced by the honchos in charge, simply reset the process as it existed for the 20 years or so prior to Specter's actions last year. According to the bill's author Senator Diane Feinstein (D. CA), the administration planned to target those attorneys who were either not playing ball (politics) or who occupied a position promised to a political hack, force them to resign, and then skirt accountability by appointing an interim attorney who would not have to answer to the Senate. The Attorney General, Alberto Gonzales, initially blasted the legislation, promising vigorous opposition because the attorneys serve at the pleasure of president (while staying mum on the other crucial part, that they serve at the pleasure of the president "after receiving confirmation from the Senate). In an effort to short-circuit the legislation, Gonzales promised to bring every interim appointment to the Senate for hearings and a vote.
In the end, that wasn't enough. This past March, after Gonzales had received his first round of spankings from the Congress, he dropped his opposition to the bill, signaling to the Senate that the administration would not stand in the way. If the Democrats managed to get it out of Congress, then the President promised to sign it, which he did yesterday.
This is extraordinary, and yet there doesn't seem to be much discussion in the usual places, particularly those who howl that the administration bends to no one. That the unitary executive is code for absolute monarchy, a king who neither listens to the public or the law. And yet politics in this case--the white heat the administration has taken over the firings of a few select US attorneys demonstrates that there are limits to how far the power of the president can be stretched. As I have argued elsewhere, the unitary executive theory assumes vigorous offense and defense from all the branches. The only reason it seemed so stark these past couple of years is because the Congress was not living up to its side of the bargain. Well now you see that a Congress, backed by the public, can provide limits when presidential power goes too far.
