Wednesday, March 11, 2009

The Obama Signing Statement--More of the Same

As I promised in my last post regarding Obama's position on signing statements, there would be a constitutional signing statement in the immediate future. Two days later (today, 3/11), Obama issued his first constitutional signing statement. First, a couple of words:

  • A constitutional signing statement is defined as any signing statement that contains one or more provisions that challenge the constitutionality of a section(s) of the law, or where the president needs to define or "interpret" a section(s) of the law.
  • For all of his candidate Obama's talk of transparency, their website is anything but. The Bush administration placed all of their signing statements on the "News" section of the White House webpage, listed day to day. In fact, toward the end, they were pretty good about putting the signing statement on the White House webpage and not in the "Weekly Compilation of Presidential Documents," where you would normally find signing statements. The current signing statement, taken from the "Boston Globe," who was good enough to provide a .pdf copy, says it came from the Office of the Press Secretary, yet every link on the White House webpage to the press secretary or any official statements do not contain a link to the signing statement. To me, that is not transparency.
Now, the signing statement. The signing statement is the spending bill that is getting attacked tonight on the national news because it contained earmarks, going against Obama's promise to combat "wasteful" earmarks (Jake Tapper: "...contained 9,000 earmarks despite his promise not to sign anything with earmarks" Then, cut to John McCain. Then at the end, mention that 40% of the earmarks come from Republicans.).

Officially, it is H.R. 1105, the "Omnibus Appropriations Act, 2009," and it has $410 billion in spending. And Obama breaks precedent with previous signing statements by not just drawing attention to the constitutional challenges, but also placing them up and front in lieu of 1) a description of the bill and 2) all the good things that it does.

Obama writes:

As I announced this past Monday, it is a legitimate constitutional function, and one that promotes the value of transparency, to indicate when a bill that is presented for Presidential signature includes provisions that are subject to
well-founded constitutional objections. The Department of Justice has advised that a small number of provisions of the bill raise constitutional concerns.

He then bulletpoints the challenges:

1) Foreign Affairs--he singles out 3 provisions that "unduly interfere with my constitutional authority in the area of foreign affairs" because they purport to tell him how he should proceed with negotiations with international organizations and foreign governments.
His response: He does not take them to mean he is limited in how he negotiates with any foreign body.
Effect? Congress can tell him "til the cows come home" what he should or should not do vis a vis foreigners, but at the end of the day, he will do what he wants.

2) United Nations Peacekeeping Missions--this one was a favorite of the Republican Congress when Clinton was in office. To make sure that our forces are never under the direction of a foreign body, the Congress places boilerplate language instructing the president that he cannot send armed forces to international organizations if they are likely to receive orders from these organizations. In this bill, Section 7050 of Division H forbids the president from doing just this.
His Response: Since this bill seems to constrain his Commander in Chief power as well as interfere with international agreements, he is left with rectifying the provision so it does not conflict with those two things.
Effect: It remains to be seen how this gets carried out because it is not clear what Obama claims he will do. Rather than saying: "I won't execute this provision" or "I won't execute this provision until Congress corrects it," Obama says this: "I will apply this provision consistent with my constitutional authority and responsibilities." I will leave you to divine the meaning.

3) Interference with the control of information. This is an automatic challenge of each president since Reagan. Congress consistently attempts to force executive branch agencies to provide information about how it is carrying out the law, and each president since Reagan wants all interbranch communication to be funneled in and out of the White House. In fact, this is a central tenet of the unitary executive theory (and reason to believe it is alive and well). Obama finds two provisions defective: Sections 714(1) and 714(2) in Division D of the bill. They prohibit the use of "appropriations to pay the salary of any Federal officer or employee who interferes with or prohibits certain communications between Federal employees and Members of Congress." This is Congress's response to the unitary executive control over inferior executive officers. Congress has constitutional authority over appropriations, thus can say anyone receiving federal money cannot issue orders to bureaucrats telling them they cannot speak directly with Congress.
His Response: Despite what Congress says about its constitutional authority over appropriations, he is still the head of the executive branch, accountable for the actions of all inferior executive officers. Furthermore, some information is sensitive and needs to be approved before it is released. Hence:
"I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees' communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential."
In other words, to all executive branch employees, regardless of what the Congress demands, you are not to act until you have the approval of a representative from the White House (OMB).

4) Legislative Aggrandizements (committee approval, or "legislative vetoes"): In 1983, the Supreme Court found the legislative veto a violation of Bicameralism and the Presentments clause of the Constitution. What it does is condition the execution of the law upon post-enactment approval of a committee in Congress. Despite the Supreme Court decision, it has not stopped the Congress from using them AND from presidents objecting to them. This challenge seems to me to stand in clear violation of his promise in the memo to list the precise provisions under challenge. Instead, Obama starts: "Numerous provisions of the legislation purport to condition the authority of officers to spend or reallocate funds on the approval of congressional committees." Numerous provisions? In other words, do the work yourself--go through the bill and isolate any provision that seems to list a legislative veto. I thought we were done with this, and instead, were going to be given the specific location of the objection? Guess not. But wait, there is more. In addition to the "numerous provisions" listing, he also makes note of two extra provisions as problematic. He notes that "one other provision" allows congressional committees to establish guidelines for costs associated with security improvements in government buildings. And then, "Yet another provision" forces the Secretary of the Treasury to abide by the demands of a board that contains members of Congress or their staff. This is a different problem. This is a "hybrid" commission, meaning it mixes the executive and legislative functions (in this case).

His response: As to the "numerous provisions" complaint, Obama promises to try to inform Congress of the actions its going to take in advance, but in the end, the decision is his, not a committee of Congress. With respect to the provision that allows Congress to establish spending limit guidelines, Obama treats these as advisory. Sure, we will take it under consideration, but in the end, the decision is his. And then the "hybrid commission" problem, he will treat it as nonbinding. Let them recommend all they want, but it no one should take them seriously.

5) Recommendations violation--These also show up a lot in signing statements. Congress tries to tell executive branch agents what sorts of recommendations they need to make in future requests for money. Because the president may recommend legislation himself, this is seen as a violation of presidential prerogatives. Obama once again continues the practice of challenging such violations, and continues an irritating practice from his predecessors (and one that also violates his pledge of clarity). The problem with this challenge is similar to the legislative veto challenge from above. Instead, what he writes is that "Several provisions of the Act (including sections 211 and 224(b) of title II of Division I, and section 713 in Division A)" requires him or his agents to submit budget requests in specific forms to Congress. If you are going to the trouble of listing some of the problems, why not list them all? If you pledged to improve over your predecessor, then why not do just that? Instead it is left up to all of us to try to figure out what else is in violation. In the past when I have found language like this, quite often there are no other provisions than the ones listed. Thus you burn a lot of time chasing a ghost.
His response: Because the Constitution gives him the power to recommend, these provisions are "precatory" or merely advisory (precatory was a favorite of Clinton--most others preferred its cousin, hortatory).

And you may not have heard much about the signing statement on the nightly news, and before you jump to conclusions of liberal collusion, let me offer two alternatives. First, many covered the signing statement. But it was the public signing ceremony, which was dramatically different from the private written ceremony. Why the two? To confuse those who don't pay much attention to these things (like the press and Congress). It is another version of being distracted by one hand while the other hand robs you. And second, this constitutional signing statement did get a lot of coverage, but mostly in the printed press, like the Boston Globe. As of this moment, Google News shows over 3,200 articles on the bill signing, ranging from the traditional news to specialty publications to blogs. That is a lot of attention.

In conclusion, Obama did not disappoint. Like "Wild Bill" Hickock, in the HBO series "Deadwood" told a woman whose husband had been murdered by road agents, "Listen to the Thunder." The memo of two days ago being the thunder preceding the signing statement. What is disappointing however is the continuing practice of not being concise regarding the specific provisions under challenge, leaving in its place the general phrasing: "numerous provisions." We were told to expect better. I at least took him for his word.