Congress is flexing muscles that have nearly atrophied from the previous six years of not standing up to the Bush administration, and like all experiments, some are good and some are just bad. The thing that leaves me scratching my head is why Congress does not seem to want to look to its past at what has and has not worked. Furthermore, Congress is approaching each challenge as if it is not related to one another to paint a larger picture of presidential power.
On the issue of the presidential signing statement, Senator John Kerry, apparently giving up aspirations of becoming president, has signed on to Senator Arlen Specter's terrible bill aimed at curbing the use of the signing statement. As I noted earlier, Senator Specter has updated his bill from last year and continued his approach at curbing the use of signing statements by Federal and State courts, even though the GAO report (which he refers to in his bill) found that the courts rarely rely on the signing statement and when they do, it isn't for any meaningful purpose. Furthermore, Congress needs to sit back and think to itself: Would it allow a judicial decree to stand that basically told the institution what pieces of information it could or could not rely upon in the course of the legislative process? Clearly that would be laughable, yet why does it now think that it can tell judges what sorts of information they can and cannot rely upon in the course of making a decision regarding the meaning of law? Other than the same knuckleheads who found it an "interesting constitutional conundrum" regarding where the vice president is situated--in Congress or the Executive Branch--most of us have long concluded that the president is a participant in the legislative process, and therefore his understanding of the law matters, and should be considered when judges seek to find the legislative intent or purpose. As to how much it matters, let me give you a story. Back in the late 1990s and into 2000, when the Clinton administration was rocked with controversy over the security of our nuclear secrets contained within our nuclear labs, the Congress wanted to establish an office inside the Department of Energy that would be semi-autonomous and responsive to the Congress regarding our nuclear secrets. The Clinton administration negotiated a deal that the individual appointed to this position would ultimately come under the direction of the president--mind you, these same Republicans that have been up in arms regarding the president's sole authority to hire and fire whomever he wants and for whatever reasons as part of the DoJ attorney firings were also working back in the late 90s to create an executive officer free from presidential control. That sleight aside, in Conference, the Republicans reneged on their deal with the Clinton administration, and put in place an individual who could only be removed due to "inefficiency, neglect of duty, or malfeasance in office." Again, Republicans placing fairly stringent qualifications on the president's right to control inferior officers. When President Clinton signed the bill, he simply understood "the phrase 'neglect of duty' to include, among other things, a failure to comply with the lawful directives or policies of the President," meaning if President Clinton told the new agent that he could not share certain information with Congress without first getting clearance from the president, and the agent disobeyed, the president could fire him or her for insubordination. Now Congress could have sued President Clinton for his interpretation, but they didn't. Why? Because Clinton, as a participant in the legislative process, made a deal in good faith with the Congress where opposing parties shook hands and, without any chance to reply and solely for political purposes (Clinton diminishing the power of the presidency by pissing away executive prerogatives), Congress could be found in the wrong. No reason to take the chance of having the courts establish a precedent against the powers of the Congress.The
The second issue involves the politicization of the administrative process. The first comes from Kenneth Silverstein that looks at the politicization of some advisory boards. For instance, one individual ("highly respected) who was up for an appointment to serve as on an advisory council on drug abuse was passed over because his politics were not right. This screening, or "vetting" is "unprecedented" according to Silverstein. But this isn't unprecedented, but instead is part of a bigger picture of the post-Watergate presidency and the attempt by all of those presidents to protect their power and policies. Just like the recent Executive Order by President Bush to place political appointees over the shoulders of career civil servants is an evolution of presidential influence that dates to the Reagan administration (and continued through the Clinton administration), the placing of political loyalists into as many openings as possible did not start with this administration. The Carter administration pushed through the Civil Service Reform Act of 1978, which created a new tier of bureaucrat known as the Senior Executive Service (SES) who is politically sensitive to the wishes of the president. Carter didn't get to reap the benefits of the change, but Reagan did. When the Reagan administration came to office in 1981, it had a rigorous vetting system that even threw out Republicans who supported George H.W. Bush. So no, what the Bush administration has done since it took office in 2001 is not "unprecedented," and to continue to believe that it is leaves everyone grossly ignorant about the history, evolution, and nature of presidential power in the contemporary period. It continues to mean that Congress will remain politically divided when facing an aggressive president rather than united in protecting its own prerogatives. The second is a story that is featured in a number of publications, and involves the former Surgeon General of the US. Richard Carmona, who was the SG from 2002-2006. He testified today before Representative Henry Waxman's (D. CA) Committee, and told that he was consistently kept under wraps by the administration during his tenure as SG. He was unable to add anything to the stem cell debate or his opinion about sexual abstinence. He also told about being pressured to attend "internal political pep rallies" and consistently had research reports spiked by higher political officials. He told the Committee that his research and opinions were "ignored, marginalized, or simply buried."
There were two unusual things that came from the testimony: First, when he asked to attend the Special Olympics, which was founded by a member of the Kennedy family, he was asked why he wanted to "help those people?" It isn't clear whether "those people" were the Kennedys or disabled individuals. Second, all of his speeches were edited "to add references to [President] Bush" where he was told that there should be "at least three references per paragraph." That is crazy, bordering on Personality Cult issues. Only unlike the Personality Cults that were part of Soviet history, where the Cult originated with the man (such as Stalin), the Cult in the current circumstances comes from the institution--those working under the President who wish to promote the image of the "Great Man."
Those two things aside, there are questions that stem from this breathless article that go unanswered. First, if the conditions were so bad, why did he serve a full four years? How credible are you to serve four years, and then go around complaining about being boxed in? Second, going into this presidency, knowing what we all knew about President Bush's stance on stem cell research, contraceptives, family planning, etc., did he really think he was going to have the freedom to go "off the reservation?" And given just how protective these recent presidents are of their agendas, do we really think that any of them would appoint people who would contradict their message? What I would want to know from the SG is whether he produced scientific studies concerning life or death issues that were spiked by political appointees? That would be troubling. What I see from these stories is not out of the norm for the recent presidencies, and not just the current one.
