Saturday, July 21, 2007

Circumventing the Veto

It appears that Senator Arlen Specter (R. PA), with John Kerry (D. MA) as a co-sponsor, has decided that the better route for his bill limiting the use of the signing statement by Federal and State courts. Specter has decided to envelope his bill into the DoD authorizations bill for the next fiscal year (H.R. 1585).

Senate Amendment 2021 to HR 1585 is precisely the same as his stand-alone bill. And it appears that it will have the support of the House given that Specter found a Representative to introduce a companion bill there. So far, the administration has not responded to it, but I am sure they will.

Given the purpose of this bill, it is not likely to have much of an effect on the influence of the signing statement given that it only focuses upon the courts, and not the bureaucracy.

I will keep you posted.

Friday, July 20, 2007

The Hits Keep A Comin'

You have to love this administration and its tendency to push the boundaries of the Article II powers beyond its limits. Just a couple of weeks ago we were debating whether the vice-president is an executive branch official and today the administration handed Congress a whopper--that an executive privilege claim trumps a contempt of Congress complaint. I am still puzzled over the administration's strategy.

The Congress, as you recall, has moved on a contempt of Congress claim against former White House Counsel Harriet Miers and White House chief of staff Joshua Bolten for their role in the Justice Department attorney firings. The new Congress had moved to uncover why these select US attorneys were fired, amid allegations that their removal came as a result of their unwillingness to play ball when asked to go soft on Republicans under investigation and to pursue Democrats who were not. When they refused, they were fired, or so the allegation goes. The administration first advanced a constitutional argument that the president may hire and fire whomever he chooses. The only caveat is that the Senate gets to confirm many of those who are hired, but on the firing question, the president's role is nearly absolute. Why not totally absolute? Because their is a political process that is also occurring that can either support or attack the president's argument--and to the American public, and the Congress--firing just a few of the 94 attorneys looked suspicious. So the administration fell back to another constitutional position--assert executive privilege, which closes the investigation into Executive Branch matters. But it is also not absolute, and most recently the Supreme Court has not looked kindly on broad claims of privilege.

This brings us to today. When Congress votes a contempt citation, it is up to the U.S. Attorney for D.C. to prosecute the citation. But the U.S. Attorney comes under the direction of the attorney general, who comes under the direction of the President of the United States. And the President has told the U.S. Attorney that he may not bring this charge forward. So what can be done?

We are not in uncharted waters. Back in 1983, the Congress was investigating the EPA director Anne Gorsuch-Burford and her lack of enforcement of Superfund violations. The Congress believed that the Reagan administration was purposefully not pursuing environmental abuses as a payback to corporate contributors, something the administration denied. The Congress wanted internal memos sent between Gorsuch-Burford and the White House, which the White House refused to provide. When Burford-Gorsuch was brought before a House Committee, she claimed executive privilege over the memos and Congress responded with a contempt citation, making her the first high ranking official ever to be charged with contempt of Congress. The Congress turned over the citation to the U.S. Attorney in D.C. and the DoJ refused to act on the citation. Instead, DoJ decided to file a civil lawsuit asking the federal district court to throw the case, reasoning that the executive privilege claim trumped the contempt citation (sound familiar?). The case, U.S. v House of Representatives was dismissed under the "Political Questions" Doctrine, arguing that it is inappropriate for the Judiciary to settle disputes between the Article I and II branches of government (these cases are a no win for the federal judiciary, which is really why they bow out).

However, the Congress (and the media) beat the administration up as acting above the law, and once public heat got too intense, the administration backed away and made a compromise where the Congress got to review the memos, but in private and without staff or the ability to take notes. Again, the political process trumped the claim of constitutional prerogative.

In the current case, the Congress would do well to blow the dust off the Burford-Gorsuch controversy and use the political process to mediate the constitutional controversy. The Congress can also turn up the heat by refusing to fund the DoJ--or cutting off any funds for the DoJ to pursue the case against the Congress. But that should come after the Democrats have brought supernova heat against the Bush administration, which will cause a loss of Republican support in Congress as well as outside of D.C. One interesting caveat. The administration, should it decide to take this to court, knows that it won't be around when the case is finally decided. It could be thinking about dumping a mess into the lap of the next president, who, given the way the money has been flowing, might very well be a Democrat. Just a thought.

Wednesday, July 18, 2007

The Companion Piece

A couple of weeks ago, Senator Arlen Specter introduced the "Presidential Signing Statements Act of 2007," (S. 1747), which is mostly an update of the bill he introduced a year ago, the "Presidential Signing Statements Act of 2006." Now there is a House version of Specter's bill.

Congresswoman Carol Shea-Porter (D. NH) has introduced HR 3045, "The Presidential Signing Statements Act of 2007." The bill is identical to Specter's bill, complete with all the problems.

In her press release, she includes all sorts of incorrect facts. First is the rhetoric, which continues to ignore the larger problem that the signing statement has become an institutional prerogative of the executive branch, used systematically for over 25 years. She writes:

President Bush has trampled on the constitutional separation of powers through his abuse of signing statements. He has attempted to usurp power that was given to the Congress, not the President, and has severely bruised the system of checks and balances. This is an insult to the founders of this country and to the American people, and it cannot be allowed to continue.

He has attempted to usurp power? She later gives us a lesson in constitutional process: "Every third grader learns about separation of powers and checks and balances--the Congress writes the laws and the President signs them...nowhere in the Constitution does it say that the President can approve part of a law and ignore the rest." Yet in one of her examples of a signing statement used to challenge a provision of a bill, she highlights a legislative veto provision as an example of the usurping of power. Yet the the legislative veto orders the executive branch agencies into a particular course of action without backing it up by law. If we take her sterile view of the process, Congress is supposed to "present" the president will a bill for his consideration.

In the history of the signing statement, she claims:
* The first president to use the device was Jackson (wrong).The first was Monroe;
* As of April this year, Bush has issued 127 signing statements to challenge over 700 specific provisions of law (wrong). As of April this year, Bush has issued 150 separate statements to challenge 1,149 specific provisions of law;

She also lists a number of signing statements where there is no evidence that they were used to influence implementation. She uses, as her source, the ABA report from last summer and not the GAO report from this summer.

This is precisely why Congress is both behind the curve on the signing statement and unable to come up with legitimate counters to the use of the device. I have contacted a number of congresspersons offering my assistance in helping them understand what the signing statement is and how it is used, as well as acting as a sounding board for proposed reactions to the use of the signing statement, and to date my phone grows dusty from lack of use. At some point I am going to have to wash my hands of them!