LaFolla's article also quotes other luminaries for their thoughts about presidential power in light of Bush--one of whom is Representative Jerold Nadler, a Democrat from New York, whose mindset reflects why most don't have a grasp of executive power. Nadler says, in only the way Nadler can say it:
"One of the things you're going to hear is, 'You don't have to worry now, Obama wouldn't [abuse power]. But that still leaves a loaded gun for the next jerk that's elected - and this country will elect another jerk. We have to get rid of these precedents before it happens again."
This is precisely the Republican mindset circa December 2000--that Clinton had openly abused the Constitution and "our guy" will never do that. The congressional position should be on heightened alert regardless who is in the White House.
Which brings me to the Huffington Post, and this posting by Peter Shane, a legal scholar and a member of the Carter Justice Department. Shane offers his recommendations on how Obama can stuff the executive "genie" back into the bottle, or in this case, back inside Article II. Shane, which should be no surprise coming from the Huffington Post, sees abuse of office only in terms of the Bush administration, which "embraced a double-barreled theory of presidential power"-where one barrel is "an assertion of unilateral presidential power in military and foreign affairs that is unprecedented in the breadth of its ambition to fend off congressional regulation and judicial oversight" and the other barrell? Why you guessed it--the "so-called 'unitary presidency' under which the President is entitled to exercise personally any or all policy discretion vested by Congress in any officer of the executive branch." It has almost become cliche to speak of the unitary executive in terms of the "so-called" unitary executive. And Shane's description of the theory really misses the target as to what the theory postulates--but that I will save for another time.
Shane targets specifically Bush's abuse of the signing statement, referring to his and UGA Law professor Neil Kinkopf's dataset on Bush signing statements. So what can be done to make sure this sort of abuse can't happen again? Shane urges Obama to issue an executive order, which to me seems like grounds for impeachment. But nonetheless, his proposed executive order has four sections that you can read for yourself. Here is what I find problematic. His first section reads as follows:
Except in the rarest of cases, the executive branch is constitutionally obligated to enforce the laws of the United States as enacted by Congress.
If you know anything about politics, you know a great deal of it is a result of mastering the art of definitions. Who gets to define "the rarest of cases?" What does that term mean? If the Congress were to accept this order, they would have done themselves a great disservice by allowing the president to neglect enforcement of the law because he determined it fell under a rare necessity.
Shane argues that this order would "demonstrate presidential vigor" (or unilateral disarmament) and would nail down three things:
[R]epudiating any claims for the legal force of signing statements, pledging allegiance to the executive branch's obligation to enforce the law, and promising transparency on those rare occasions when the president's obligations to the Constitution mean that a statute cannot be enforced consistent with our supreme national law.
First, this assumes that signing statements are inherently bad. I have argued elsewhere that they serve an important role in communicating to the executive branch agencies what the president believes the law means. And because the Congress is notorious for writing legislation that is incredibly vague, it leaves to the president the job of administering the law. This means putting meaning to word. If Shane and other critics of the signing statement find them so repugnant, then place the onus on the Congress to be clearer in the legislation it sends to the president. Also, the Congress is notorious for passing legislation that gives itself executive powers--from telling the president what he should recommend to the creation of hybrid executive agencies. Would this sort of thing constitute the "rare" instance where a signing statement would be appropriate? If so, then it is hard to criticize the thousands of challenges the Bush admininstration has made. The last recommendation I am not sure how to read? The president should be more transparent when he has to refuse enforcement of the law. Transparent how? Already the signing statement appears in a number of publicly available sites. Why not instead ask Congress why it cannot do a better job in monitoring the effects of the signing statement? There are already laws on the books that require the president to communicate to the Congress those instances when the laws are not being defended or enforced. The former has been on the books since 1978. And yet the Congress is clueless in he use of the signing statement? Why? Because the Congress is incapable of seeing past the nose on its collective face. How do we know? Well, the use of the signing statement first became controversial in 1986, when Reagan issued a number of challenges to the "Immigration Reform and Control Act of 1986." Among the outraged were Congressman Barney Frank and Senator Ted Kennedy, as well as Senator Patrick Leahy. And yet in 2006 they outraged anew in 2006--20 years after the fact--when President Bush was caught issuing his challenges.
I am all in favor of placing checks on the kinds of constitutional abuses in the Bush administration--but many were caused because they were encouraged by the Congress. Congress is the first instittution of government, and the one most capable to reign in an "imperial presidency." It is time that we start there when urging a reform to executive power.
