Saturday, March 28, 2009

What To Think of the Signing Statement?

So suggests the "National Journal," in an article today on the signing statement (sub. req.). The title reads: OBAMA FOLLOWS SUIT ON SIGNING STATEMENTS: THE PRESIDENT DRAWS FIRE FOR CONTINUING BUSH PRACTICE, BUT IT MAY NOT MEAN MUCH. There you have it.

Quoted in the article is Lou Fisher, Gene Healy of CATO, Eric Posner (a defender of Bush signing statements (.pdf)), Bruce Fein and Neil Kinkopf, OLC attorney for Bill Clinton and critic of Bush signing statements.

The thrust of the article is to figure out the meaning behind Obama's signing statement--first, did he break a campaign pledge and second, is he behaving like President Bush?

The writer, Dan Friedman, repeats the false claim that Obama's March 11 signing of the Omnibus spending bill is his "first signing statement." As I discussed in this post, it was the first time Obama issued a "constitutional" signing statement.

After he provides the background to the controversy, including Obama's memorandum explaining how the signing statement would be used, he gets to the experts. First up is Posner, who says that "signing statements have almost zero practical effect." Pointing to the GAO studies in 2006 and 2007, they found that signing statements have no influence over judges and in an examination of Bush's signing statement to approprations bills, and that in at least nine cases, the law was not executed as intended--but the GAO could not conclude that it was the signing statement that was the cause.

The author also underscores the minimal effects of the signing statement by pointing to a Bush signing statement in January 2008 that challenged, for instance, the creation of a "wartime contracting commission" that had members appointed by someone other than the president. As he notes, despite the challenge in the signing statement, the White House "quietly appointed the commission's members" and complied with the law as written. But it wasn't that simple, and the signing statement actually was an important catalyst. As I wrote here, the White House only allowed the Commission to go forward after it had met with congressional leaders to work out the specifics on what the Commission would do. Thus the challenge served as the impetus to further negotiations, bringing the Congress closer to the White House's position on the bill.

Thus what we should take from this article? The thrust is the signing statement really doesn't have that much effect on the execution of the law, but what effect it does have--at least when Obama uses it--should in no way be taken as a sign that the Bush administration's interpretation of power has returned. If they do not mean anything, then we should no longer concern ourselves with studying them. And if they are meaningful, then it should not matter that Obama is different from Bush.

Either way, this particular article is a muddy mess.

Sunday, March 22, 2009

The Unitary Executive's Future

One of the important legs of the unitary executive theory involves the president's influence over the regulatory process. Unitarians have long believed the president's role extends beyond simple oversight and is actually one where the president is involved in the decision making process (the promulgation of rules).

Since Reagan, each president has implicated itself into more areas of the bureaucracy than the preceding president. Reagan issued two key executive orders that made the Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs (OIRA) the "big kid on the block" when it comes to influence. OIRA became the eyes and ears of the White House, and no executive branch administrator issued rules without first consulting with it--even at times rejecting the influence of Congress, which is supposed to have shared responsibilities over the bureaucracy.

Clinton built upon the Reagan orders with an order of his own--Executive Order 12,866 continued to allow OIRA to influence the regulatory process and it extended the president's influence into the independent regulatory agencies--something Reagan and Bush had been rejected from doing. Clinton's order was issued in 1993, months after his inauguration, and with a Congress controlled by Democrats. Clinton was able to fall back on his order when the Republicans seized control of the Congress in 1995, using it as a fall back when his policies were rebuffed in the Congress (and to the chagrin of the Republicans). The Republicans attempted to blunt the influence of the president's order by adding the "Congressional Review Act of 1996" to a small business regulatory relief bill. The CRA is designed to allow the Congress to override a final regulation issued by an executive branch agency, but in reality is ineffective because it must be signed off by the president himself. In fact, the only override of a Clinton order that the Republicans pulled off happened with a midnight regulation issued when Clinton was leaving office, and was signed, enthusiastically, by President Bush.

As a demonstration of just how effective the Clinton order was, President Bush did not change it until 2007, when the Democrats regained control of the Congress following the 2006 midterms. On January 18, 2007, Bush signed Executive Order 13,422, titled "Further Amendment to Executive Order 12,866 on Regulatory Planning and Review." Technically this was an amendment to 12,866 and not a revocation. Most importantly, Bush's new order allowed the White House to place "minders" in the offices of the regulators themselves. These minders, called "Regulatory Policy Officers," have been in place since the Reagan orders, but outside of the agencies themselves. These individuals, called RPOs, were used as a go between the White House and the agencies, sending communication back and forth between the two. Now the RPOs would stand over the shoulders of the regulators, making what was abstract influence real influence.

Ten days after taking office, Obama revoked Bush's order with Executive Order 13,497, which restored the Clinton order as the guiding relationship between the White House and the executive branch. It also revoked Executive Order 13,258 (.pdf) which gave the vice president individual influence in the regulatory process, which was a sore point with open government groups who felt that the vice president--and in particular his chief of staff David Addington--were using the regulatory process as a fiefdom by which to make their own law (see this fine series of reporting by the "Washington Post").

Now here is where the unitary executive's future--at least this leg of it (since we know that the constitutional signing statement isn't going anywhere)--is in question. Obama's new order didn't just return the Clinton order and that was it--it temporarily puts the Clinton order into effect until a new regulatory order can be hammered out. And unlike the previous orders, Obama has asked for public comment on what this new order should look like.

The comments come from a variety of sources, although it appears that the deck is stacked in favor of those pushing for more transparency and for an end to the cost-benefit rationale built into the previous orders. There are a number of interesting comments and a few that are not worth a damn. If you are interested in this subject, I would encourage you to browse through the comments.

The question that remains centers on what role these comments will have in the final regulation. It could be that Obama invited public comments but will issue an order that does what he wants it to do anyway. Thus the public comments are a way to demonstrate his faithfulness to transparency without giving up the significant power the president has over the regulatory process. Or it could be a new era of transparency, where Obama synthesizes the best of the comments and builds them into an order that allows the public to monitor any influence over the development of final regulations--something that to date has remained in the shadows.

We sit and wait and wonder what future does the unitary executive have?