Strike Two

Last year, Senator Arlen Specter, from his perch as Chair of the Senate Judiciary Committee, held a day long hearing on the presidential signing statement, and then introduced legislation to curb the use (or abuse) of the signing statement by the Bush administration. That legislation went nowhere, although it did generate a lot of coverage for the Senator at the time.

Today, Senator Arlen Specter, now Ranking Member of the Senate Judiciary Committee, has introduced legislation designed to tackle the use of the presidential signing statement. S. 1747, "The Presidential Signing Statement Act of 2007" comes with a fairly detailed press release by Senator Specter. According to Specter, his bill is designed to "protect the constitutional system of checks and balances" in the following ways:

1. Prevent the president from using the signing statement "to alter the meaning of a statute" by ordering the courts--both federal and state--not to rely upon it when deciding a case;
2. Allow Congress the opportunity to participate in any case where the "construction or constitutionality of an act of Congress is in question and a signing statement was issued when the act was signed."

Specter acknowledged that there are legitimate functions for the signing statement--such as telling the executive branch agencies, departments, and commissions how to "administer a law" or the congratulatory/admonishment statements that act as a type of press release. I am struggling with the first legitimate use. Is Specter saying that it is legitimate for a president to order an agent not to enforce a provision of law because it "violates the supervision of the unitary executive branch" but it is not legitimate for the Court to follow that construction?

To be honest, after reading the bill and the press release, I can only conclude that Senator Specter is more interested in publicity than addressing the signing statement. I also think this particular effort is misguided for a couple of reasons:

First, I don't think he can tell the Supreme Court what evidence a member may or may not rely upon when deciding a case. As it is, there is one side of the spectrum, represented by Justice Antonin Scalia, that eschews relying upon anything other than the plain meaning of the text. Therefore he and others do not use any legislative history other than the bill sitting before them. On the opposite side of Scalia, representing the other end of the spectrum, is Justice Stephen Breyer, who believes that a judge should avail himself to all pertinent material when deciding the meaning of law--which includes congressional reports, statements of floor managers, conference committee memos, floor debate, and even presidential bill signing statements.

Second, it is sporadic when a signing statement comes into play in the outcome of a decision, and even when it does, it often isn't crucial to deciding the case. For instance, in the Chadha decision, the Supreme Court simply noted a past practice of Presidents objecting to the use of a legislative veto. When Justice White finished the decision, the legislative veto died because it violated the Presentments Clause and Bicamerialism, and not because of the president's signing statement. Some other decisions rely upon the signing statement in greater detail. When President Reagan signed the "Gramm-Rudman" balanced budget bill, he objected to the use of executive powers by a legislative agent, which the Supreme Court used in deciding the case. However, in the Hamdan decision, the Supreme Court rejected President Bush's signing of the Detainee Treatment Act outright (see Scalia's dissent where he scolds the Majority for relying upon all sorts of extraneous congressional documents, but not the signing statement, pg. 12-13.). As Specter rightly notes in his release, the recent GAO Report on the signing statement noted that reliance by judges on the president's signing statement is sporadic at best. So why go to all the effort of passing "veto proof" legislation for something that isn't much of an issue anyway?

Third, Specter continues to miss the target--the influence of the Executive Branch agencies. He charges: "If the President is permitted to rewrite the bills that Congress passes and cherry pick which provisions he likes and does not like, he subverts the constitutional process designed by our Framers." I don't think it is cherry picking that is the problem. The problem is that some agencies abide by the challenges in the statement while others simply do not. The GAO Report clearly showed that in areas that are important to the President--particularly in large appropriations bills--the President and his staff will dedicate resources to seeing the challenge through. We need a complete picture of where those areas are. The GAO Report provided an opening that Congress does not seem to want to take. If the Congress really wants to clamp down on the use of signing statement to challenge or reconstruct, it has to have some sense of where those are likely to happen. That is step one. Thus Congress should commission the GAO to follow up on the recent Report, be more thorough and systematic. Then, after identifying where those areas are, it should write its bills so that they are "signing statement-proof." For instance, a number of signing statements--particularly of the type that allow the President reconstruction of language--where contentious battles between the House and the Senate take place that leaves provisions vulnerable. Case in point was the 1986 Immigration bill that I have referenced elsewhere. In that bill, a provision that was designed to protect individuals fired because of discrimination was crippled after the House and the Senate could not come to agreement over proof of discrimination. Thus when President Reagan signed the bill, he took advantage of that contentious debate and defined the provision so that burden of proof was on those who were fired, which was completely at odds with the sponsor of the provision. Thus writing particular provisions so that they are clear and get Executive Branch agents on record agreeing with the intent of Congress might be a start.

Fourth, Senator Specter and others should begin to take into consideration the power of the President to interpret the constitutional meaning of legislation he signs into law. This power, which is referred to as "coordinate construction" or "departmentalism" argues that each branch of government must decide on what is or isn't constitutional. Therefore when a president signs a bill with one provision that he feels violates the Constitution, he has every right to do that. In fact, he is obligated by the oath he takes when he is sworn into office to protect and defend the Constitution. This theory often gets dismissed as "Right-Wing fantasy" or part of the "Imperial Presidency," but it is clear that it has had advocates or proponents in every administration since Nixon. And what's more, there are now a number of Supreme Court Justices, not to mention lower-court judges, who are orphans of the Justice Department's Office of Legal Counsel (OLC) since Watergate who are also proponents of the theory. Certainly Chief Justice Roberts, Associate Justices Scalia, Alito, and Thomas are firm believers of the unitary executive, and with it the belief that the president is as obligated to protect the Constitution from unconstitutional acts as the Court is. It may even be too late for Congress to mount a legal challenge. Better yet--Congress should step up and be vigorous protectors of their prerogatives and of the Constitution, and to start by dispensing with bills such as this one by Senator Specter.

Pay Attention

It appears that Congress has taken interest in a recent Executive Order issued by President Bush that enhances his influence over the regulatory process.

Back in May, I documented the importance of Executive Order 13,422 which built upon an Order issued by President Clinton back in 1993. The Clinton Order had wiped out two important Reagan Orders, and at the time went unnoticed as to the reach that Clinton had taken in his overhaul of the Reagan Orders.

As you well know, control over the regulatory process has been of prime importance for the post-Watergate presidents. If the President is not able to win battles with the Congress, then it is important that he mutes or negates those losses when it comes time to put rubber to road. Thus it was Reagan that empowered the new Office of Information and Regulatory Affairs (OIRA) inside OMB to be his eyes, ears, and muscle over the regulatory agencies. As I discussed last week, the first Bush administration empowered the Vice President to do the work of OIRA when Congress refused to fund it or confirm a Director. Clinton pulled a fast one largely because he had a Democratic-controlled Congress. He folded the Reagan Orders into a new Order, 12,866, and also required the independent regulatory agencies and commissions to inform OIRA of its regulatory planning agenda for the coming year--a way of monitoring the "independents," if you will. President Bush II seemed to like the Clinton Order, as he didn't mess with it when he took office. It took a loss of control over Congress for him to realize that he needed to modify and enhance that Order. And boy did he ever. The Congressional Research Service issued a report last February that breaks down the important components of Executive Order 13,422--but if you want my take, the most important component is placing "regulatory policy officers" (RPOs) inside each agency that filters the regulations on behalf of the White House. Furthermore, the RPOs are also placed inside the "independents," making the president's influence there more tangible than it ever has been.

It is not certain how any of this works because President Bush set the date for it to take effect this July 24, just in time for the 13 appropriations bills to come down the pike later this summer and early fall. By splitting the issuance of the Order from the date it takes effect, the administration was probably hoping that any initial interest would fade as other items clutter the political horizon. That strategy--if it was a strategy--hasn't worked. As reported in today's San Francisco Chronicle," Congress has already moved to short-circuit the Order.

The House has added an amendment to the "Financial Services and General Government Appropriations Act, 2008" (H.R. 2829) that would place inside section 901 of the bill a stipulation that cuts funds for the ability of OIRA to carry out any part of the Order. The amendment (H.AMDT.461), according to Representative Brad Miller (D. NC--there are Democrats in North Carolina?) and Representative Linda Sanchez (D. CA), is designed to stop "this President or any President from seizing the power to rewrite almost every law that Congress passes, laws to protect public health, the environment, safety, civil rights, privacy, and on and on, without answering to Congress or the American people." The amendment passed by voice vote.

There remains an uphill battle for the supporters of this amendment--does the Senate add a similar one, does the amendment survive the conference committee??--but if so, what happens? First, it is nice to see that the Congress is not just paying attention to this sort of activity but also that it actually does something to challenge it. However, these sorts of provisions have a hard time working given that the president has funds that he can move around to fund it anyway. Back in the 1970s, when President Carter granted amnesty to Vietnam War draft dodgers, the Congress passed, and the president signed, legislation that had one of these funding-killer provisions tucked inside. The Congress denied funding to the Justice Department to process the forms for those applying for amnesty. To get around the provision, which Carter declared unconstitutional, he simply moved funds for general purposes to fund their processing.

It is important that we keep an eye to see how this progresses. Currently HR 2829 is awaiting attention by the Senate Appropriations Committee, but considering that Senator Robert Byrd (D. WV) heads that Committee, the provision has a decent chance of staying intact at least until the conference committee. After that, who knows?

Pardon? Clemency? WTF?

If you are interested in the clemency that President Bush just dropped on Scooter Libby, then pay attention to my friend Mark Morris's website. Mark is the man for all things pardon. If you have a question, feel free to contact him or add a comment.

Just some thoughts. First, Janis Joplin's words "when you got nothing you got nothing to lose" never rang truer than Bush's decision to short circuit the prison term. Public approval in the toilet and a so little time left in his presidency, what can he possibly lose by making this decision? Second, will he pardon Libby? Clemency doesn't do much for the felony conviction. Where will Libby possibly get a job now that he has a felony wrap? Third, why not pardon? Is it that Bush wishes to remain loyal and on the side of law? Fourth, if Libby was assured clemency, why not hire the local ambulance chaser, who bills at either $50 an hour or for a percentage of the take? Instead, let him rack up the kind of legal bills that would collapse a small country only to let him off the hook after the appeals court spoke? Fifth, will Representative Dan Burton (R. IN) demand that Bush be investigated for using his power to bestow clemency for political purposes in the same way that he blathered and bleated when Clinton did?