Confoundment!

President Bush issued the 158th signing statement on Monday (28th) on the down lo (or what other commentators describe as "quietly" issued the statement). He seemed to have issued it when everyone else was focusing on his final State of the Union Address. I have to admit myself that I look at his activities every day and I did not catch it until today when the New York Times issued an editorial challenging Bush's use of the device. The Times notes that "Mr. Bush has issued hundreds of these insidious documents declaring that he had no intention of obeying a law that he had just signed." Actually what Bush has issued "hundreds" of is challenges contained within the signing statement document. To be precise, by my record, the four challenges that came in this signing statement bring the total number of challenges to 1,167--a record to be sure. And for my money, this statement continues to show timidity in the face of a Congress controlled by the opposition. Here is the substance of the signing statement:

Provisions of the Act, including sections 841, 846, 1079, and 1222, purport to impose requirements that could inhibit the President's ability to carry out his constitutional obligations to take care that the laws be faithfully executed, to protect national security, to supervise the executive branch, and to execute his authority as Commander in Chief. The executive branch shall construe such provisions in a manner consistent with the constitutional authority of the President.

The best we can say is that he challenged at least four provisions since he lists them. However, that sentence begins: "Provisions of the Act" and then includes the four provisions. It could very well mean that he has much more in mind, but is holding that close to his vest.

So, the sections themselves:

Section 841 creates a "Commission on Wartime Contracting" whose eight members are appointed by the House, the Senate, and the President, and requires that the Committee investigate private companies, such as Blackwater, who have contracts in Afghanistan and Iraq. This section gives the Commission the authority to obtain information from executive branch entities such as the Department of Defense, ordering that the "head of such department or agency shall furnish such information expeditiously to the Commission." You can imagine how the term "expeditiously" went over with such scrutinizers as David Addington.

It is my guess that President Bush's objections here involve the "supervision" of the executive branch, given that a Commission is formed with "hybrid" functions. This has long been a gripe of presidents--Commissions that allow appointments from other people than the president, who has the appointment power. In a 1989 OLC Opinion, William Barr, serving as the head of the Office of Legal Counsel, outlined "ten types of legislative encroachments into the prerogatives of the president." Number 1 was "Interference with the appointment power," where "Congress...seeks inroads into the president's prerogative of the appointment. Congress will set up commissions and give the commissioners executive power. The president must diligently use the signing statement to note that his appointees serve in an advisory or ceremonial fashion. Number 2--the creation of "Hybrid Commission" which involves "Congress creating commissions that contain members of the legislative and the executive branch, and often the numbers are tilted in favor of the Congress. (Barr, William P. "Common Legislative Encroachments on Executive Branch Constitutional Authority." 13 Op. O.L.C. 299, July 27, 1989.)" In the case of the Wartime Commission, Congress gets six appointees and the president gets two.

Section 846--The section, titled "Protections for Contractor Employees from Reprisal for Disclosure of Certain Information" gives protections to whistleblowers who come forward to:

• A Member of Congress
• A representative of a committee of Congress
• An Inspector General
• A GAO officer
• A DOD employee responsible for contract oversight or management

with information "that the employee reasonably believes is evidence of gross mismanagement of a DOD contract or grant, a gross waste of DOD funds, a substantial and specific danger to public health or safety, or a violation of law related to a DOD contract (including the competition for or negotiation of a contract) or grant."

The administration has been consistent in battling provisions that encourage people to come forward and blow the whistle. In my paper, Rethinking Presidential Power: The Unitary Executive and the Bush Administration, I document the effort the administration made to destroy the whistleblower protection in the Sarbanes-Oxley law.

Section 1079--This section requires any executive branch intelligence organization to turn over "any existing intelligence assessment, report, estimate, or legal opinion" requested by or relating to the jurisdiction of the Armed Services Committees in the House and Senate. If the president does not wish to comply, this section mandates that "White House Counsel shall submit to Congress" the president's assertion of executive privilege, which would stipulate the reasons why the president wishes to protect information.

Section 1222--This final section challenged in President Bush's signing statement has drawn the most attention. This section, by far the shortest, is titled "Limitation on Availability of Funds for Certain Purposes Relating to Iraq." It has two statements: First, there is no funds that can go to establish any "military installation or base for the purpose of providing for the permanent stationing of United States Armed Forces in Iraq" and the second demands no funding "to exercise United States control of the oil resources of Iraq."

As Elana Schor at the "Guardian" notes, this particular challenge may become "as controversial as the (2005) signing statement sidestepping the torture ban." This particular section is part of an on-going debate between the Bush administration and the Democratic Congress on US presence in Iraq for the long term. In particular, the controversy is grounded in whether this agreement is a treaty or not. Last fall, the administration embarked on an agreement with the al-Maliki government in Iraq to protect the long-term interests (the "Declaration of Principles for a Long-Term Relationship of Cooperation and Friendship.") The Senate argues that this agreement should take the form of a treaty, which the Senate would get a say over the terms and in the end, whether it would be ratified. Yet the use of an executive agreement, which has been apart of Republic since birth and what Bush is attempting to do, has allowed the president to get around the treaty process by making agreements with foreign governments that work the same as a treaty, yet without the need to have the Senate ratify. It seems clear that President Bush's challenge of the provisions under the "Commander in Chief" authority cited in the signing statement.

There are some great things that have emerged as a result of the use of the signing statement. The greatest maybe the rapid response by the Congress. Several members spoke out against Bush's challenges on the floor of the chamber, and not just a flip statement in response to a reporters question (see here and here for examples).

I found it interesting that in President Bush's challenge, he claimed that the Congress violated his prerogative to "supervise the executive branch." This is a back down from previous challenges which claimed the prerogative to "supervise the unitary executive branch." That was a meaningful declaration of presidential power, and it seems to have disappeared.

Despite some of the over the top criticisms and other "analysis" of this signing statement, it is clear that the hubris from previous years is gone. The use of the signing statement, coupled with the challenges, are not there.

Parsing the Lawyers for Fred

The Boston Globe's Charlie Savage has a piece in today's paper discussing the flood of attorneys from Fred Thompson's now-defunct campaign to the campaign of Mitt Romney. Savage argues that this particular move provides "clues about the kind of federal judges the candidate would appoint and the legal philosophy that the candidate would embrace as a president."

Putting aside the question of judges--since multiple forces are at play in the selection of judges--the question of what the president's view of his or her own power is the more important question. In one sense, the question of expansive power inside the Justice Department has already been settled regardless of who wins the election or who gets appointed. The Justice Department has been pushed to advance the cause of presidential power since the Ford administration, when assistant attorney general Antonin Scalia headed the Office of Legal Counsel. Irrespective or presidency, the Justice Department has been on a consistent tract in pushing presidential power, maintaining consistency among the career attorneys who stay in place when one administration leaves and the next comes in.

The more important players will be those the president surrounds himself with inside the White House Office--particularly among the White House Counsel Office. They whisper in the ear of the president, and are then when the president makes a final decision--often to the chagrin of the Justice Department. And what we know from the current administration is that the advice of legal counsel appears to have a greater effect on the president when the president has no clear understanding of the powers of the Office or no clear understanding of the law. Bill Clinton, for instance, drove the White House Counsels Office and the Department of Justice to support his particular conclusions, even ignoring the advice when it conflicted with his particular purpose. Whether it was the pardon process or going to the Supreme Court to support executive privilege, he understood what he thought presidential power enabled a president to do, even if it meant decreasing that power for future presidents. And Mitt Romney appears to be a president in the George W. Bush mold and not the Bill Clinton mold. Telling was a comment Romney made at a debate last October, when the candidates were asked whether a president could take the country to war unilaterally or does he need the support of the Congress, and Romney answered that he would first need to call his attorneys and ask them.

So what does Romney's selection of legal advisers say about a future Romney presidency? As an overall, it says that Romney would be a president who continued to push expansive presidential power, and certainly supporting the ideal of the unitary executive if not the ways the Bush presidency put the theory to practice. And if Rudy Guiliani does not do well in Florida on Tuesday and drops out, it is clear his lawyers committee will flock to the Romney campaign, making his lawyers committee even more conservative than it already is. So who are these lawyers for Romney? Of note:

• Douglas Kmiec--Kmiec was an architect in the Reagan administration of the use of the signing statement to advance presidential power. Kmiec served in the Office of Legal Counsel in Reagan and Bush I, and has been a support of the unitary executive in its theoretical form. Kmiec, who serves as a Co-Chair for Romney's legal team, has not been a supporter of many of the actions the current Bush administration has taken in the name of the unitary executive. Kmiec fought those who called themselves unitarian but acted contrary to the Constitution even when he was an attorney in the Reagan Justice Department. He found Reagan's interpretation of language that was part of the Immigration Reform and Control Act of 1986 as a gross violation of the president's executive powers.
  
• Charles Cooper--an attorney in the Office of Legal Counsel and in the Civil Rights Division of the Department of Justice in the Reagan administration. He is also a proponent of the unitary executive theory and was involved in the ground floor of the Federalist Society, a conservative legal organization founded by a number of conservatives affiliated with the Reagan Justice Department.
• Viet Dinh--A member of the Bush Justice Department, serving under attorney general John Ashcroft. Dinh is an avowed conservative, involved in the 1990s in the Senate Whitewater Committee investigations into Clinton wrong doings from the Rose Law Firm, where Mrs. Clinton worked, to the death of Vince Foster, which continues to be the Mother of All Conspiracies among the Clinton-haters. Dinh was also an architect of the PATRIOT Act, among other controversial Bush legal opinions, and thus is a proponent of allowing ideology to influence interpretation.
• Eugene Scalia, the son of Supreme Court Justice Antonin Scalia, served as the Solicitor of Labor under George W. Bush--one of Bush's many recess appointees. Scalia's confirmation was viscerally opposed by Democrats, in particular Senators Wellstone and Kennedy, who argued that he would be placed in the Department of Labor in order to undo regulations that supported the American worker, which is precisely what he did. Scalia was also involved in the Bush administration's attempt to water down the whistleblower protections that were part of the Sarbanes-Oxley bill. In Bush's signing statement to Sarbanes-Oxley, Bush interpreted the whistleblower protection accorded to those wishing to expose corporate malfeasance to only apply only when a congressional committee was actively investigating the corporation. Despite the protests of Senators Grassley (R. IA) and Leahy (D. VT), both who worked extensively on the bill, Solicitor Scalia filed an amicus brief to an administrative review board case using the Bush language of the whistleblower provision. In the end, the Bush interpretation was overturned by the new Solicitor for Labor Howard M. Radzely.
• Michelle Boardman--She was the Justice Department representative sent by the Bush administration to testify at the Senate Judiciary Committee hearing in 2006 on the presidential signing statement. She would certainly be a proponent of aggressive executive power couched in the theory of the unitary executive.

Of the 45 Lawyers for Romney on staff, 19 (or 42%) come directly from the Bush administration, most right out of the Justice Department. And given that Mitt Romney does not have a firm stand on constitutional issues, it could very well be a repeat of the Bush years where the ideologues ran amok, pushing constitutional powers well over the bounds of Article II. It is certainly worthy of attention, and Romney now needs to be pressed at every twist and turn by those who cover his campaign about his views of the power of the presidency--getting past the theoretical and right into the practical.