Yesterday, as the rest of the country headed to their favorite restaurant, bar, or friends home to celebrate the end of the old and the beginning of the new, the administration signed a bill that it was not jazzed to see on its desk. The bill, S. 2271 is titled the "Sudan Accountability and Divestment Act of 2007," a bill designed to force the administration to take more action than it has in Sudan, a country ravaged by civil strife and, most agree, a country that has instituted genocide against its own. There has been intense pressure domestically and internationally to bring US action to bear against the country, and the administration has only recently come around. The Democrats promised action if elected, and the president signed that action yesterday. In President Bush's signing statement, he acknowledges the actions he has taken thus far (the use of sanctions against the Government of Sudan and high level diplomatic engagement), and then challenges who may legitimately speak for the nation.
This Act purports to authorize State and local governments to divest from companies doing business in named sectors in Sudan and thus risks being interpreted as insulating from Federal oversight State and local divestment actions that could interfere with implementation of national foreign policy. However, as the Constitution vests the exclusive authority to conduct foreign relations with the Federal Government, the executive branch shall construe and enforce this legislation in a manner that does not conflict with that authority.
The reason for the challenge is because of the greater role that states and individuals may play in sanctioning individuals or private businesses that have relations with the Sudanese Government. As the "New York Times" explains, the bill:
...makes it easier for mutual funds and private pension fund managers to sell their investments and allows states to prohibit debt financing for companies that do business in Sudan. It also requires companies seeking contracts with the federal government to certify that they are not doing business in Sudan.In addition, the new law requires the State and Treasury Departments to keep Congress informed of the effectiveness of the sanctions, and it also requires any contractor that has business with the United States Government to divest of any times with Sudan.
Deputy Press Secretary Scott Stanzel was asked about the signing statement in his meeting with the press yesterday morning at the Western White House. His answers were interesting. First, in speaking about the potential constitutional problems with the new law, his explanation of the problem was not near as bold as explanations about who has power in our constitutional government in the past. Rather than declaring that the president has absolute (inherent constitutional authority) over the foreign policy of the US--something that has been "boilerplate" in the past--Stanzel said this: Under the Constitution, the federal government is entrusted with a full and exclusive responsibility for the conduct of foreign affairs." But that would mean that the Congress, and even the courts, have an important say in the foreign policy of the US. This statement is clearly a break from the past, and one wonders whether Messers Cheney and Addington either got by-passed when the statements were vetted OR have lost some muscle as the Bush administration comes to an end?
Stanzel then declares:
So to the extent that any actions taken pursuant to the act interfere with the federal government's foreign policy aims, that action would be unconstitutional. So as the signing statement makes clear, the administration will take appropriate measures to ensure that the United States, through the federal government, speaks with one voice in foreign policy matters.
When asked for specifics, Stanzel simply stated that he would have to get back to them once he has gotten "more guidance from some of our attorneys, who have obviously very closely examined this law." We should hope that these are not the same attorneys who completely missed the section of the recent defense authorization bill that led to the president's veto (more below).
What is clear is that President Bush has continued a practice, starting last year, of muting his challenges in his signing statements. Gone are the multiple vetoes of the past, and in their place are fairly lukewarm challenges coupled with an absence of sweeping claims to presidential power--the repetition, for instance, of the phrase the unitary executive. While I was a bit facetious above regarding the role of Cheney and Addington, I think it is clear that the challenges placed in any of the signing statements in 2007 have not seemed to originate in the vice-president's office. As the Washington Post detailed this past summer, the vice-president's office had inserted itself into the process whereby a signing statement gets attached to a bill the president signs. And clearly one of the reasons (I believe the only reason) why President Bush has more challenges than any other president is because of this abnormality in routine. It could very well be that the VP's office has been de-linked from the process.
The Defense Authorization Bill, redux
Deputy Press Secretary Stanzel was also asked again whether President Bush's "Memorandum of Disapproval" last week (documented by me here) consisted of a veto or a pocket veto. And Stanzel added a wrinkle that many of you may not recognize. Stanzel noted that they consider the bill "pocket vetoed," which would mean that the Congress could not take action to override. However, the Congress is refuting that claim, correctly noting that there was someone to receive the veto message by the president, thus the bill was "vetoed." The administration, if you recall, not only claimed the pocket veto, but also sent the bill back to Congress as a veto. Here is Stanzel:
In addition to that, that's why we took the additional step of actually returning the legislation on Friday to the House with a message of disapproval. So it's our view that we took the extra step -- what they call a protective return -- to make sure that Congress, when it returns in January, can move forward quickly with a fix to that legislation so the pay raises, the .5 percent can go into effect retroactively and we can make sure that Iraq has an opportunity to continue the process of rebuilding.
It isn't clear who the "they" is in Stanzel's statement. But he notes that what the administration did was execute a protective return, or a protective pocket veto. Now I am sure many of you do not know what the heck that is, still trying to get your mind around a pocket veto vs. a veto. To shed light on this, I turn to SUNY Political Scientist, and presidency expert Robert Spitzer. Bob contributed a chapter in my 2006 edited book on the protective return, and interestingly enough, some interest parallels between Bush I and Bush II.
This concept of pocket vetoing a bill AND sending it to the Congress as a veto began in the Ford administration, which Congress challenged in the case Kennedy v Jones (challenging when the president may actually use a pocket veto). In that decision, the DC Circuit ruled that pocket vetoes could only be used after Congress has adjourned, sine die, and then only if the Congress forgot to appoint an agent to stay in the Congress to accept messages from the president.
But Spitzer notes that it was the first Bush administration that pushed the use of the pocket veto any time that Congress stood adjourned, and not just at the end of a session. The Bush administration attempted to establish precedent by executing a pocket veto over minor bills, hoping that Congress would not pay attention and challenge the actions of the administration. In an interesting parallel, President Bush I attempted a pocket veto of a bill that he signaled to Congress that he would sign, but then at the final hour disapproved of it because of "technical" flaws in a few of its sections. He did not, however, return it to Congress and the Congress assumed the bill became law, an assumption that Bush I did not challenge.
President Clinton behaved similar to Bush I, and now Bush II in 2000, when he claimed a pocket veto and regular veto to the "Marriage Tax Relief Reconciliation Act of 2000," the "Death Tax Elimination Act of 2000," and the "Intelligence Authorization Act for FY 2001." Interestingly, when President Clinton sent the "Memorandum of Disapproval" to the Congress, he used the following language:
Since the adjournment of the Congress has prevented my return of (each of the 3 bills) within the meaning of Article I, section 7, clause 2 of the Constitution [the clause describing the regular and pocket veto], my withholding of approval from the bill precludes its becoming law. The Pocket Veto Case, 279 U.S. 655 (1929). In addition to withholding my signature and thereby invoking my constitutional power to "pocket veto" bills during an adjournment of the Congress, to avoid litigation, I am also sending _____ to the House of Representatives with my objections, to leave no doubt that I have vetoed the measure.
If you look at the current Memorandum of Disapproval, President Bush declares:
The adjournment of the Congress has prevented my return of H.R. 1585 within the meaning of Article I, section 7, clause 2 of the Constitution. Accordingly, my withholding of approval from the bill precludes its becoming law. The Pocket Veto Case, 279 U.S. 655 (1929). In addition to withholding my signature and thereby invoking my constitutional power to "pocket veto" bills during an adjournment of the Congress, I am also sending H.R. 1585 to the Clerk of the House of Representatives, along with this memorandum setting forth my objections, to avoid unnecessary litigation about the non-enactment of the bill that results from my withholding approval and to leave no doubt that the bill is being vetoed.
While the two are not exactly the same, they are pretty close. In fact, the same language can be seen in ever "protective return" going back to the Ford administration. Hence the practice is institutionalized within the Executive Branch and will probably be used again in our next administration.
This "protective return" issue is important for a couple of reasons, chief among them is the importance of Congress challenging an "aggrandizement of power." An important illustration for other unilateral claims, such as those found in the signing statement. But I think Professor Spitzer says it best, and thus I leave you with his conclusions:
One may be tempted to dismiss all this as inconsequential constitutional trivia. After all, if these dual vetoes...failed to spawn court challenges or disrupt the usual lawmaking process, why be concerned? The answer is that there are two sets of concerns: first, the procedure is flagrantly, even outrageously, extra-constitutional; and second, it may ultimately have profound institutional and policy implications.
