Tomorrow, June 27 at 10:00 a.m., Northwestern University Law Professor, Founding Father of the Federalist Society, Founding Father of the Unitary Executive, and self-professed creator of the presidential signing statement Steven Calabresi will be on hand to take your questions at the Washington Post.
Calabresi's book on the unitary executive is due out next month (my co-edited book on the same subject will follow). You can submit your questions now.
The Post is tying Calabresi's visit with today's Judiciary Committee Subcommittee on the Constitution, Civil Rights, and Civil Liberties hearing on "Administration Lawyers and Administration Interrogation Rules." This hearing had, as "invited" guests, former Clinton OLC head Christopher Schroeder, and representing the Bush administration, VP chief of staff David Addington, and former OLC-honcho John Yoo. Of course the real focus was on Addington and Yoo, with Schroeder playing the straight man.
For most folks who are interested in issues of presidential power and watch C-SPAN, this was probably your first time to actually SEE and HEAR David Addington, and I am willing to bet that many of you were surprised to see his did not have horns on head or a spiked tail and fangs. For nearly everyone who has written on Addington, all have noted how he gets his way by bullying others in meetings, that he is sarcastic, and that he has a mind for legal details. And that was on display today. He got into a testy exchange with Robert Delahunty of Mass, who wasn't supposed to be there in the first place. Any way, their exchange involved Al Qaeda, classified information, and C-SPAN. Or better yet, when asked if he would be willing to come back and testify, perhaps in executive committee, over information that was privileged or classified. Yoo said he would be glad to come back if necessary and Addington flatly said "no." He didn't deal in any privileged information, and when challenged that he did refuse to comment on classified information, to which he said: "I am here now. Ask me whatever you want."
The best is the submitted testimony. Schroeder and Yoo, being law faculty, submit their 20 page or so report. Addington does not submit anything. Added for him is a 51 page series of letters between the Committee and Addington or his lawyer.
By the way--it did come up today. Question: "Is the vice president an executive branch agent or a legislative agent?" The answer was several paragraphs and didn't come any closer to clearing up the mystery!
Thursday, June 26, 2008
Tuesday, June 24, 2008
Losing Battles And Winning Wars
If you happened to hear about the report that the Inspector General at the Department of Justice released about the politicization inside the Justice hiring process, you probably are as appalled as some of the leading newspapers. At the Washington Post, their story quotes Senate Judiciary Chair Patrick Leahy who referred to the report as "troubling," versus the story at the New York Times which gets a quote from House Judiciary Chair John Conyers, who said the partisans at Justice were "putting politics where it doesn't belong." In fact, choose your news source, and nearly all the stories are the same, all fitting the same narrative of a problem that is germane only to the Bush administration and one that fits into a pattern of unilateral abuse of the laws and the Constitution.
The thing is that what the IG Report found as a problem is nothing more than an extension of bureaucratic politicization that stretches all the way back to the Nixon administration, who wanted to neutralize the "New Deal" controlled bureaucracy in order to get his policies moving forward. The Carter administration ushered through the Congress, and then signed the "Civil Service Reform Act of 1978" that allowed the president to set aside a number of appointments--at the top of key agencies--of individuals who not only answered to the president but also had incentives to make sure that the president's political objectives were realized.
It was the Reagan administration, however, that was by far the most overt--and most successful (at the time)--in moving the bureaucracy closer to the White House. For instance, before Reagan took office in 1981, his transition team established a litmus test for anyone applying to work in the administration. They wanted to make sure that every conceivable position where they had latitude over hiring was given to a true believer. The criteria for hiring? According to the two men in charge of hiring, Pendelton James and Lyn Nofziger, the candidate was asked:
1. Are you a Carter appointee? If so, you're rejected.
2. Are you a Democrat who didn't work for Ronald Reagan? If so, you're rejected.
3. Are you a Republican? Are you the best Republican for the job?
4. Are you a Ronald Reagan-George Bush supporter?
5. Did you work in the Reagan-Bush campaign? How early before the convention?
6. Are you the best qualified person for the job? But that's only number 6.
As Ed Meese, who would eventually be Reagan's attorney general in the second term (and the one who oversaw the push to make the signing statement a strategic weapon) remarked on this vetting process: "We sought to ensure that all political appointees in the agencies were vetted through the White House personnel process, and to have a series of orientation seminars for all high ranking officials on the various aspects of the Reagan program. We wanted our appointees to be the President's ambassadors to the agencies, not the other way around."
President Reagan would also issue two key executive orders that gave the Office of Information and Regulatory Affairs inside the Office of Management and Budget the power to make life miserable for any bureaucrat--political or career--who failed to live up to the Reagan vision. This enabled the "president and his agents to monitor and influence the substance of individual regulations." In essence, it established administrative clearance of any and all regulations. By the end of the Reagan administration, the entire bureaucratic apparatus was now highly sensitive to the political position of the president. It simply was not worth the effort to try to end run the White House. And despite the attempts of Congress to assert itself inside the bureaucracy, the truth of the matter was that each successive administration moved the bureaucracy much closer to the White House, leaving Congress with losing ground with each passing year.
The Clinton administration continued the efforts of its Republican predecessors. It enhanced the Reagan executive orders, it used a variety of unilateral devices (the signing statement, proclamation, executive orders, treaty obligations, etc.) and pretty much dominated the Republicans in Congress who were unable to combat how Clinton flew solo when he could not get the Congress to come along, leaving Clinton domestic policy adviser Paul Begala to conclude: "Stroke of the pen. Law of the land. Pretty cool."
Thus the Bush II administration came to power, and it simply extended the reach of the president even further than his predecessors. So after we are finished reading these various accounts, what should be the questions we ask? I think we should start first with a look at how we got here, because that will only help us understand why this happened and then to allow us to think about how we prevent it in the future. Because you can be sure of one thing. This OIG report is only a short term loss. This administration and the candidates running around the country are already thinking about how they will stretch their tentacles throughout the bureaucracy to compensate for the moments when Congress simply won't go along with the president's vision.
The thing is that what the IG Report found as a problem is nothing more than an extension of bureaucratic politicization that stretches all the way back to the Nixon administration, who wanted to neutralize the "New Deal" controlled bureaucracy in order to get his policies moving forward. The Carter administration ushered through the Congress, and then signed the "Civil Service Reform Act of 1978" that allowed the president to set aside a number of appointments--at the top of key agencies--of individuals who not only answered to the president but also had incentives to make sure that the president's political objectives were realized.
It was the Reagan administration, however, that was by far the most overt--and most successful (at the time)--in moving the bureaucracy closer to the White House. For instance, before Reagan took office in 1981, his transition team established a litmus test for anyone applying to work in the administration. They wanted to make sure that every conceivable position where they had latitude over hiring was given to a true believer. The criteria for hiring? According to the two men in charge of hiring, Pendelton James and Lyn Nofziger, the candidate was asked:
1. Are you a Carter appointee? If so, you're rejected.
2. Are you a Democrat who didn't work for Ronald Reagan? If so, you're rejected.
3. Are you a Republican? Are you the best Republican for the job?
4. Are you a Ronald Reagan-George Bush supporter?
5. Did you work in the Reagan-Bush campaign? How early before the convention?
6. Are you the best qualified person for the job? But that's only number 6.
As Ed Meese, who would eventually be Reagan's attorney general in the second term (and the one who oversaw the push to make the signing statement a strategic weapon) remarked on this vetting process: "We sought to ensure that all political appointees in the agencies were vetted through the White House personnel process, and to have a series of orientation seminars for all high ranking officials on the various aspects of the Reagan program. We wanted our appointees to be the President's ambassadors to the agencies, not the other way around."
President Reagan would also issue two key executive orders that gave the Office of Information and Regulatory Affairs inside the Office of Management and Budget the power to make life miserable for any bureaucrat--political or career--who failed to live up to the Reagan vision. This enabled the "president and his agents to monitor and influence the substance of individual regulations." In essence, it established administrative clearance of any and all regulations. By the end of the Reagan administration, the entire bureaucratic apparatus was now highly sensitive to the political position of the president. It simply was not worth the effort to try to end run the White House. And despite the attempts of Congress to assert itself inside the bureaucracy, the truth of the matter was that each successive administration moved the bureaucracy much closer to the White House, leaving Congress with losing ground with each passing year.
The Clinton administration continued the efforts of its Republican predecessors. It enhanced the Reagan executive orders, it used a variety of unilateral devices (the signing statement, proclamation, executive orders, treaty obligations, etc.) and pretty much dominated the Republicans in Congress who were unable to combat how Clinton flew solo when he could not get the Congress to come along, leaving Clinton domestic policy adviser Paul Begala to conclude: "Stroke of the pen. Law of the land. Pretty cool."
Thus the Bush II administration came to power, and it simply extended the reach of the president even further than his predecessors. So after we are finished reading these various accounts, what should be the questions we ask? I think we should start first with a look at how we got here, because that will only help us understand why this happened and then to allow us to think about how we prevent it in the future. Because you can be sure of one thing. This OIG report is only a short term loss. This administration and the candidates running around the country are already thinking about how they will stretch their tentacles throughout the bureaucracy to compensate for the moments when Congress simply won't go along with the president's vision.
Monday, June 23, 2008
Power, Power, Power
Two interesting articles on yesterday's Sunday papers--one in the New York Times and the other in the Boston Globe--that dealt with the question of presidential power.
First, the Times's James Risen examines the state of presidential power for the 44th president in light of recent set backs to the Bush administration, and finds that the 44th President--whomever that is--will inherit an office with more power than previous presidents (this axiom has been true for every recent president beginning with the Reagan administration). Risen, however, seems to think that the surplus of presidential power is a new thing:
"...the next president will inherit powers much expanded since the 2001 attacks on New York and Washington."
Granted, the Bush administration has been very aggressive in pushing the envelope of Article II, but so have previous presidents. The key difference between the current and previous administrations is public awareness of the push, and clearly this administration has made once obscure strategies household names. But it is not correct to assume that one is more aggressive than the others.
In Risen's piece, he refers to the group of legal minds advising John McCain, and the list is telling. Called the "Justice Advisory Committee," it includes a number of attorneys who have been proponents of executive predominance in the constitutional system, starting with one of the co-chairs--Ted Olson--who served in the Reagan, Bush I and Bush II administrations and has been clear on his stance regarding presidential power. It was Olson, recall, who was part of the Supreme Court case challenging the independence of the "independent counsel." From there, it is a who's who list of conservative legal scholars on the front lines of advancing the unitary executive theory of presidential power:
The law--and a big one--was the very first piece of legislation introduced into the House under Democratic control in 2007. H.R. 1 put into effect the recommendations made by the 9/11 Commission. This law was part of the promise that Democrats made in the lead up to the 2006 midterms that if elected, they would pass.
One part of the law ("Implementing Recommendations of the 9/11 Commission Act of 2007") requires the president to appoint a White House coordinator for preventing terrorism. In particular, Section 1841--"Office of the US Coordinator for the Prevention of Weapons of Mass Destruction Proliferation and Terrorism"--establishes this new office in the EOP with a Coordinator (and staff) who is appointed by the President and confirmed by the Senate.
It is the duty of the Coordinator to: 1) serve as principal adviser to the President on all matters involving the prevention of WMDs and terrorism; 2) developing a comprehensive and well-coordinated strategy for prevention of WMDs and terrorism; 3) lead inter-agency coordination of US efforts to implement the strategy and policies for the prevention of WMDs and terrorism; 4) conduct oversight and evaluation of any initiative or policy in the area of prevention of WMDs and terrorism; and 5) overseing the development of a comprehensive and coordinated budget for programs and initiatives in the area of prevention of WMDs and terrorism.
In January 2007, the administration sent a SAP to the House arguing that this new position had a number of problems. Mostly, it is "unnecessary given extensive coordination and synchronization mechanisms that now exist within the executive branch, including the Sept. 2006 National Strategy for Combating Terroism which sets forth a comprehensive multi-layered strategy to combat the threat of WMD terrorism." Bush echoed similiar concerns in the SAP he sent to the Senate on its companion bill, S.4.
Yet when President Bush signed the law in August, 2007, there is no mention nor challenge to Section 1841. The only thing that President Bush does write, perhaps alluding to this section, is that he has issued "numerous Executive orders, Presidential directives, and national strategies" as well as signing "into law the Intelligence Reform and Terrorism Prevention Act of 2004, the PATRIOT Act, and other important pieces of legislation." It appears that his position on the Section 1841 is that it is redundant and unnecessary. Bush further notes that Congress has not passed all the recommendations of the 9/11 Commission and most importantly the Congress has failed to implement the Commission's recommendations that Congress reform itself in order to better conduct oversight of the intelligence communities in the US. Thus Bush may also be reasoning that he need not act upon the mandates of the law because the work has yet to be finished. But whatever his reason, he didn't place it in the signing statement, where such challenges are normally found. As Bender writes: "This time...the White House seems to be ignoring the nuclear terrorism coordinator requirement not for constitutional reasons but simply because the administration thinks it is a bad idea. It is a stance some legal scholars called an even more blatant disregard of the checks and balances on presidential power."
There is nothing new in the actions (or non-actions) of the president. Quite often the Congress creates a position within the Executive Branch, demanding that the president appoint a certain type of individual and then share any of information coming from this position with the Congress itself, only to find that the president refuses to appoint anyone because it violates his constitutional powers.
I hope to find out more about this particular maneuver since it might represent a new manifestation of presidential strategy. Rather than make public the reasons why the president is challenging a provision of law (as is the case with signing statements, proclamations, or executive orders), the president may be making the case internally without public scrutiny. Or perhaps the president has invented a new device that we have yet to stumble upon. Whatever the reason, something different has happened and it behooves us all to find out what that is.
First, the Times's James Risen examines the state of presidential power for the 44th president in light of recent set backs to the Bush administration, and finds that the 44th President--whomever that is--will inherit an office with more power than previous presidents (this axiom has been true for every recent president beginning with the Reagan administration). Risen, however, seems to think that the surplus of presidential power is a new thing:
"...the next president will inherit powers much expanded since the 2001 attacks on New York and Washington."
Granted, the Bush administration has been very aggressive in pushing the envelope of Article II, but so have previous presidents. The key difference between the current and previous administrations is public awareness of the push, and clearly this administration has made once obscure strategies household names. But it is not correct to assume that one is more aggressive than the others.
In Risen's piece, he refers to the group of legal minds advising John McCain, and the list is telling. Called the "Justice Advisory Committee," it includes a number of attorneys who have been proponents of executive predominance in the constitutional system, starting with one of the co-chairs--Ted Olson--who served in the Reagan, Bush I and Bush II administrations and has been clear on his stance regarding presidential power. It was Olson, recall, who was part of the Supreme Court case challenging the independence of the "independent counsel." From there, it is a who's who list of conservative legal scholars on the front lines of advancing the unitary executive theory of presidential power:
- William Barr, who was head of OLC in the Bush I administration and wrote a famous memo to all executive branch agencies demanding they look out for the top ten types of congressional encroachment upon executive branch prerogatives;
- Rachel Brand--she worked in the Office of Legal Policy during the current Bush administration and a unitarian;
- Steven Calabresi--one of the founding fathers of the Federalist Society. He worked in the Reagan Justice Department and was instrumental in advancing the signing statement as a strategic weapon. Calabresi is also credited as a founding father of the unitary executive theory, unveling it formally in a 1992 law review article;
- Charles Cooper--worked in the Reagan Justice Department's OLC and was also on the ground floor in pushing the signing statement and presidential power;
- Charles Fried--worked as the Solicitor General in the Reagan administration, advancing the preeminence of presidential power in the US Courts. Fried commented back in the 1980s that it was the responsibility of the president and his staff to leave the Office in better shape than they found it.
The law--and a big one--was the very first piece of legislation introduced into the House under Democratic control in 2007. H.R. 1 put into effect the recommendations made by the 9/11 Commission. This law was part of the promise that Democrats made in the lead up to the 2006 midterms that if elected, they would pass.
One part of the law ("Implementing Recommendations of the 9/11 Commission Act of 2007") requires the president to appoint a White House coordinator for preventing terrorism. In particular, Section 1841--"Office of the US Coordinator for the Prevention of Weapons of Mass Destruction Proliferation and Terrorism"--establishes this new office in the EOP with a Coordinator (and staff) who is appointed by the President and confirmed by the Senate.
It is the duty of the Coordinator to: 1) serve as principal adviser to the President on all matters involving the prevention of WMDs and terrorism; 2) developing a comprehensive and well-coordinated strategy for prevention of WMDs and terrorism; 3) lead inter-agency coordination of US efforts to implement the strategy and policies for the prevention of WMDs and terrorism; 4) conduct oversight and evaluation of any initiative or policy in the area of prevention of WMDs and terrorism; and 5) overseing the development of a comprehensive and coordinated budget for programs and initiatives in the area of prevention of WMDs and terrorism.
In January 2007, the administration sent a SAP to the House arguing that this new position had a number of problems. Mostly, it is "unnecessary given extensive coordination and synchronization mechanisms that now exist within the executive branch, including the Sept. 2006 National Strategy for Combating Terroism which sets forth a comprehensive multi-layered strategy to combat the threat of WMD terrorism." Bush echoed similiar concerns in the SAP he sent to the Senate on its companion bill, S.4.
Yet when President Bush signed the law in August, 2007, there is no mention nor challenge to Section 1841. The only thing that President Bush does write, perhaps alluding to this section, is that he has issued "numerous Executive orders, Presidential directives, and national strategies" as well as signing "into law the Intelligence Reform and Terrorism Prevention Act of 2004, the PATRIOT Act, and other important pieces of legislation." It appears that his position on the Section 1841 is that it is redundant and unnecessary. Bush further notes that Congress has not passed all the recommendations of the 9/11 Commission and most importantly the Congress has failed to implement the Commission's recommendations that Congress reform itself in order to better conduct oversight of the intelligence communities in the US. Thus Bush may also be reasoning that he need not act upon the mandates of the law because the work has yet to be finished. But whatever his reason, he didn't place it in the signing statement, where such challenges are normally found. As Bender writes: "This time...the White House seems to be ignoring the nuclear terrorism coordinator requirement not for constitutional reasons but simply because the administration thinks it is a bad idea. It is a stance some legal scholars called an even more blatant disregard of the checks and balances on presidential power."
There is nothing new in the actions (or non-actions) of the president. Quite often the Congress creates a position within the Executive Branch, demanding that the president appoint a certain type of individual and then share any of information coming from this position with the Congress itself, only to find that the president refuses to appoint anyone because it violates his constitutional powers.
I hope to find out more about this particular maneuver since it might represent a new manifestation of presidential strategy. Rather than make public the reasons why the president is challenging a provision of law (as is the case with signing statements, proclamations, or executive orders), the president may be making the case internally without public scrutiny. Or perhaps the president has invented a new device that we have yet to stumble upon. Whatever the reason, something different has happened and it behooves us all to find out what that is.
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