The subject of the subcommittee investigation was the "impact of the Presidential signing statement on the Department of Defense's implementation of the Fiscal Year 2008 National Defense Authorization Act," and in attendance were the normal cast of characters: TJ Halstead, who works at the Congressional Research Service (CRS) and was an author of two CRS studies (here and here) of the signing statement; Gary Kepplinger of GAO (and whose testimony I will address below); and finally Bruce Fein of Fein and Associates and Nicholas Rosenkranz of the Georgetown University Law Center.
The Committee hoped to create another public controversy for the Bush administration by using the hysteria of a couple years ago regarding the signing statement to beat up the administration over its signing statement to the National Defense Authorization Act of 2008, of which I wrote about here. This was a controversial signing statement because it followed a veto Bush issued (where he attempted a "protective return" pocket veto) after the Congress expected he would sign. The controversy ensued when the administration and the Congress quickly worked together to iron out the problems, only to learn that Bush singled out four different provisions as constitutionally obnoxious--one because of an appointments violation, another because of whistleblower protections, another because it required the intelligence agencies to turn over information to congressional committees or claim executive privilege, and finally another because it interfered with the president's Commander in Chief powers.
The problem for the Committee is that no one paid attention. The testimony and the administration bashing was akin to the tree falling in the woods--if no one is there to hear it, does it make a sound? This at least confirms a hunch that I had back in 2006 when they were handing out Pulitzer's for exposing the signing statement, that when the election took off and the Bush administration was heading out the door, the press no longer care if Bush is issuing challenges and the agencies were following his lead (that is all the press except the Libertarian-bent Reason). But that is for another day.
Kepplinger's testimony essentially was a summary of the two GAO studies on the effect that Bush's signing statements had on agency compliance. The GAO found that in a third of the cases, the agencies failed to comply with the law. But Kepplinger and the others were there to speak about the signing statement to the current defense bill, and here is where the testimony was interesting. In the current bill where the intelligence agencies are required to turn over information to congressional committees or assert executive privilege, in the 2006 bills the same requirement was laid upon the DoD, and the information never reached the Congress. Second, and an area of consistency for the administration, where a whistleblower protection provision was placed in the legislation, the administration refused to comply then and now (and in 2002, it reached a crisis when the administration changed the language of the whistleblower protection in Sarbanes-Oxley). And regarding those appointments problems: In the defense authorization bill, Bush objected to the Commission on Wartime Contracting because it allowed the leadership from the House and Senate to select members in violation of the president's prerogative to make appointments. To date, the Commission has not come together because, as Senator Webb (D. VA) recently stated, the Congress is waiting for the President to make the first appointments. I am not sure which president he was talking about because this president isn't going to do it. According to Kepplinger, a committee that was part of their 2006 study--the "Rio Grande Natural Area Commission" that still hasn't met because the president has not made any appointments.
Kepplinger's testimony was at least a step in the right direction. He stated:
To reduce any effect signing statements may have on agency execution of statutes, Congress may wish to focus its oversight work to include those provisions to which the President objects to ensure that the laws are carried out. We note that the Attorney General is required to submit a report to Congress of any instances in which the Attorney General or the Department of Justice implements a formal or informal policy to refrain from enforcing or defending a federal law or regulation on the grounds that such provision is unconstitutional. This reporting requirement also extends. albeit more narrowly, to the President himself with respect to any unclassified executive order or similar memorandum, and to the heads of executive agencies and military departments that establish or implement a nonenforcement policy.
I am puzzled at the timidity Kepplinger displays at the outset: "The Congress may wish to focus its oversight..."? We have great evidence from the past--even from this Bush administration--that where Congress shows a willingness to challenge the president, the president will often back down. We saw that when Senators Grassley (R. IA) and Leahy (D. VT) went after the Bush administration's interpretation of the whistleblower protections in Sarbanes-Oxley. In addition, back in the 1980s, the Reagan administration attempted to force agency noncompliance even in the face of two federal court orders against them, and when the House Judiciary Committee commenced hearings on cutting off appropriations for the Department of Justice, the Reagan administration quickly capitulated. I suspect the GAO's timidity comes from dealing with the wrath of Congress in the first term after the GAO sued the vice president over the Energy Task Force meetings. Given the close divide of Congress today, who knows when the Republicans might return and take it out on the GAO for demanding that Congress fight the president.
The second suggestion is puzzling. The law that Kepplinger refers to was part of a DOJ authorization bill in 2002 that required the Justice Department to inform Congress whenever the president refused enforcement or defense of the law. This was an update to a 1978 law that required Justice to inform Congress whenever the president refused to defend the law in federal court, then it had to give the Congress the opportunity to hire its own legal team in order to defend the law (placed into the law books by former Georgia Congressman Elliot Levitas, who was infuriated over the Carter administration's refusal to defend legislative vetoes). Here is what puzzles me. Nowhere in any of the GAO studies do they actually attempt to determine whether the Bush administration has complied with the 2002 law (by the way, when President Bush signed that law, he challenged this particular provision--and many others--by claiming that it violated his duty to supervise the unitary executive branch and his right to withhold information that "could impair foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties." Take your pick!). Now why would the GAO go to the trouble of determining compliance without also asking around the Congress whether anyone has gotten the "411" from the DOJ? Or they could of asked me, and I could have told them that based upon a FOIA request that Justice fulfilled, they have not informed Congress of any nonenforcement or non-defense actions by the Bush administration, but they did give the Congress a bunch of information on that lousy Clinton administration.
But then again, Kepplinger concludes that he cannot tell Congress that there is a connection between the signing statement and agency noncompliance. Why? Because they never asked anyone while doing this study. But then again, they never say--and apparently no one has asked the question--if agency noncompliance is not a result of the president's signing statement, then what is it?
