A Tisket A Tasket

Interesting developments on the issue of the signing statement. President Obama's most recent signing statement, which I discuss here, rankled many in Congress for challenging the Congress's attempt to force the Treasury Secretary to take certain positions in international institutions such as the World Bank and the IMF. Obama wrote:

...provisions of this bill within sections 1110 to 1112 of title XI, and sections 1403 and 1404 of title XIV, would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with international organizations and foreign governments, or by requiring consultation with the Congress prior to such negotiations or discussions. I will not treat these provisions as limiting my ability to engage in foreign diplomacy or negotiations.

This is pretty run of the mill stuff. Presidents are very protective of their foreign policy prerogatives, and it is an area where you should always expect to see a challenge in the signing statement. As I also noted, President Obama did not issue a Statement of Administration Policy (SAP) communicating these problems ahead of time, which is normal and which also contradicts his directive of March that promised to communicate in advance any problems in legislation as it is winding its way through Congress. I assumed that he did this informally. Apparently I was wrong.

CQ reported today (sub. req.) that Representative Kay Granger (R. TX), who is the ranking Republican on a sub-committee of the Appropriations Committee, added an amendment to HR 3081, the "Department of State, Foreign Operations, and Related Programs Appropriations Act, 2010," that negates Obama's signing statement challenges. Granger added the language to insure" that the will of Congress was followed." Backing up the amendment is Barney Frank, who threw his support Granger's way. Frank, who knows something of a signing statement during his experience with the Immigration Reform and Control Act of 1986 said that if Obama made good on his challenges, "there would be no more funding for the IMF and World Bank."

The administration responded with a veto threat of its own. In the SAP to HR 3081, the administration argued it would not tolerate any language that conflicted with the "President's authority as Commander-in-Chief." They noted that the Granger amendment, similar to language in the recently signed Supplemental Appropriations Act and the Omnibus bill signed back in March, this language constrains the President's foreign policy prerogatives by "...directing Executive officials to adopt certain positions or objectives in negotiations and other dipomatic interactions."

There is something interesting about this particular SAP. In President Obama's signing statement to the Omnibus bill in March, he simply noted that the bill raised "constitutional concerns," and then pointed to those concerns as follows:

• Foreign Affairs. Certain provisions of the bill, in titles I and IV of Division B, title IV of Division E, and title VII of Division H, would unduly interfere with my constitutional authority in the area of foreign affairs by effectively directing the Executive on how to proceed or not proceed in negotiations or discussions with international organizations and foreign governments. I will not treat these provisions as limiting my ability to negotiate and enter into agreements with foreign nations.
• United Nations Peacekeeping Missions. Section 7050 in Division H prohibits the use of certain funds for the use of the Armed Forces in United Nations peacekeeping missions under the command or operational control of a foreign national unless my military advisers have recommended to me that such involvement is in the national interests of the United States. This provision raises constitutional concerns by constraining my choice of particular persons to perform specific command functions in military missions, by conditioning the exercise of my authority as Commander in Chief on the recommendations of subordinates within the military chain of command, and by constraining my diplomatic negotiating authority. Accordingly, I will apply this provision consistent with my constitutional authority and responsibilities.
• Executive Authority to Control Communications with the Congress. Sections 714(1) and 714(2) in Division D 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. 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.
• Legislative Aggrandizements (committee-approval requirements). Numerous provisions of the legislation purport to condition the authority of officers to spend or reallocate funds on the approval of congressional committees. These are impermissible forms of legislative aggrandizement in the execution of the laws other than by enactment of statutes. Therefore, although my Administration will notify the relevant committees before taking the specified actions, and will accord the recommendations of such committees all appropriate and serious consideration, spending decisions shall not be treated as dependent on the approval of congressional committees. Likewise, one other provision gives congressional committees the power to establish guidelines for funding costs associated with implementing security improvements to buildings. Executive officials shall treat such guidelines as advisory. Yet another provision requires the Secretary of the Treasury to accede to all requests of a Board of Trustees that contains congressional representatives. The Secretary shall treat such requests as nonbinding.
• Recommendations Clause Concerns. Several provisions of the Act (including sections 211 and 224(b) of title II of Division I, and section 713 in Division A), effectively purport to require me and other executive officers to submit budget requests to the Congress in particular forms. Because the Constitution gives the President the discretion to recommend only "such Measures as he shall judge necessary and expedient" (Article II, section 3 of the Constitution), the specified officers and I shall treat these directions as precatory.

Now, aside from the specific sections he lists, it is up to the researcher to figure out what the challenges are. For example, under the bullet point for "Legislative Aggrandizements," which he qualifies as "committee-approval requirements," all that he says is that there are "numerous provisions" that require the administration to notify Congress before they act on the legislation--something also known as a legislative veto. How numerous? I have just completed an in-depth scan of the bill, and I find over 100 provisions that require committee notification before action--not after action, but before. Most of those provisions (67) are found in Division H of the bill, which deals with foreign policy/international relations. Now the interesting thing in the SAP is that the administration is more specific about the problems of HR 1105:

Similarly, consistent with longstanding Executive Branch concerns about similar provisions, reflected recently in the President's statement in signing the Supplemental Appropriations Act, 2009, and the Omnibus Appropriations Act, 2009, language within sections 7026, 7030, 7054, 7069, 7070, 7081, and the International Monetary Fund Amendment...

If they can identify the very specific problems in the SAP after the fact, then why can't they be this specific when it comes to their challenges in the signing statement, as they originally promised?

So back to the tet a tet at hand. You may think that this is Republican posturing that probably won't go anywhere as the Democrats will defeat the amendment when it comes to the floor for a vote, thus protecting the man in the White House. I mean this was Republican behavior from 2001-2006, when President Bush did one thing after the next to diminish the authority of the Congress. Not so with the Democrats. In a 429-2 vote this evening (with 7 not voting), the House approved the Granger amendment (and Dennis Kucinich was one of the no votes). According to Representative Frank, the vote was "not just on behalf of (the Congress), but (also) on behalf of democracy."

Now it is on to the Senate, and then conference. It will be interesting to see whether this amendment makes it to the President's desk. Do the Democrats save Obama and remove the provision in conference, or does Obama make good on his veto threat and veto the bill (doubtful)?

I will say there is a promising sign out of the Congress regarding how it should deal with the signing statement. As I have noted elsewhere, Congress's high profile attempts to battle the use of the signing statement have been all style, no substance. To date, it has been about ordering the courts to ignore them, which is totally unworkable. But now they are thinking. Representative Frank and Representative Mark Kirk (R. TX) have offered another way:

(They) said that one way they could get presidents to stop issuing signing statements casting aside laws would be to refuse to fund their priorities.

Now you are talking. In the 1980s, when the Congress had enough with the Reagan administration's use of the signing statement, they simply cut off funding to the Department of Justice until the administration capitulated. It seems the Congress is finally paying attention to history!

Stay tuned as this legislation comes to a head in a couple of months.