Back in June 2006, the Senate Judiciary Hearing held a one day hearing on the Bush administration's use of the presidential signing statement. The hearing was spurred in large part from Charlie Savage's April 30 Boston Globe article on the signing statement--the article that put the signing statement--at least for this generation--on the map.
The Senate Judiciary Committee has just released its report on that hearing, and for those who have followed this closely, there is nothing new in the official transcript of that days events. What is interesting is the responses from Michelle Boardman, an OLC attorney who testified that day, to written questions after the hearing ended. There some interesting things I have found in reading her responses. For instance, the members asked her about Bush's constant use of the term "unitary executive" in his signing statement, and whether that was an indication that he was using the signing statement to enhance executive power overall, which would be different from previous presidents. In her response, she notes that previous presidents also pointed to the unitary executive in their signing statement--in particular Reagan and Bush I. Reagan and Bush I did make mention of the unitary executive, but only a handful of occasions. By the second year of Bush's first term, every one of his constitutional signing statements carried the qualified "unitary executive" which was often left open-ended, suggesting that it was not just to "supervise the unitary executive branch," as Ms. Boardman implies in her written responses. This is also important because she suggests to the Senate Judiciary Committee without any challenge from them that the unitary executive only means that the president has the right to control the behavior of those who work from them--control their communications with each other and with anyone outside the executive branch. That is just one peg of the theory. It also believes that the "Vestings" clause gives to the president ALL executive power inside and outside the Constitution and via the "Oath" clause it commands the president to reject anything that contradicts HIS reading of the Constitution. Boardman's dimunitive interpretation mirrored that of Justice Alito when he was asked what the term meant to him during his confirmation hearings in January 2006 (shameless plug: I have a co-edited volume on the unitary executive due out later this year from Texas A&M University Press).
I am continuing to scan through the report, and if you are interested in the subject, I encourage you do the same!
Wednesday, June 10, 2009
Sunday, June 07, 2009
Some Things Never Change
John Elwood, a refugee from the Bush OLC, has joined the Meta-Blog The Volokh Conspiracy as a blogger. Elwood was the second person the Bush White House sent to testify in defense of their use of the signing statement when he came to the House Judiciary Committee in January 2007 to testify before newly minted chair, John Conyers.
The Bush administration often used the argument that the criticism regarding their use of the signing statements was something drudged up by political opponents and not a fair criticism--the basis was a quantitative assessment of Bush signing statements--how could it be a problem if Bush had issued fewer signing statements than any president before, including his immediate predecessor, Bill Clinton? In fact, this criticism was also leveled at those who testified before either the House or Senate Judiciary Committee. While technically it is right, in substance it is wrong.
I bring all this up because Elwood has blogged about Obama's recent signing statement of the Ronald Reagan Centennial Commission Act, and one of his points of criticism stems from this quantitative misread.
Elwood, like me, has found it interesting that Obama referred to a predecessor's signing statement in defense of his own, and it seems as if he feels slighted that Obama reached to the Reagan administration to find a challenge to they hybrid commissions created by Congress. Elwood notes that in 2001, Bush challenged a Commission that was established to prepare for the 50th anniversary celebrations of Brown v Board of Education that took place three years later. It is clear that Obama reached to the Reagan administration because this was a challenge to a Commission established to honor Reagan. He could have easily found a challenge in Bush I and Clinton's presidency, but that would have not been rhetorically symmetrical nor have the impact that the one he chose.
Elwood also takes notice to Obama's statement that he notified Congress of his constitutional objection. He writes:
A couple of things here. First, there seems to be a great deal of communication with the Congress when a challenge is made. As my colleague Bryan Marshall has found while serving as an APSA Congressional Fellow, as part of the long term negotiations between the president and the Congress to get a bill passed, when there is a sticking point, the administration and the Congress often comes to an agreement to allow the sticking point to proceed so long as Congress signs off on a formal challenge by the president. Thus the signing statement is a safety valve that allows both sides to save face when backing away from a veto challenge. Second, if we wanted to get really technical, we should applaud Obama for abiding by a law the Bush administration refused to acknowledge. In the 2002 DoJ appropriations bill, Senator Patrick Leahy added language requiring the administration formally inform the Congress whenever it used the signing statement to challenge the constitutionality of a provision of law (see Section 530D to the 21st Century Department of Justice Appropriations Authorization Act). Third, in Obama's formal memorandum on using the signing statement, issued March 9 just ahead of his first constitutional signing statement, he promised, in principle #1, that he would "...take appropriate and timely steps...to inform the Congress of its constitutional concerns about pending legislation."
The point where Elwood cannot shake old habits is here. Elwood writes:
A point of clarification here. All legislation is not created equally. If you look at the first signed pieces of legislation during 2001, much of it is ceremonial, such as dedicating buildings and roads or appointing individuals to ceremonial commissions. In fact, it is unusual for constitutional challenges to come during the first half of the year. Most do not start until August, when the Congress begins to fire appropriations bills at the president. Clearly Obama has been given more substantive legislation early on because of the state of domestic and foreign policy. These are not usual times. If Obama wished to get technical, he could counter that he followed the lead of his predecessor and waited until March to make his first challenge. Obama's first challenge came on March 11, 2009 and Bush II first challenge came on March 20, 2001. But that is technical and really meaningless in the long run. Just like making quantitative comparisons between presidents is meaningless in the long run.
What does matter, and what we all should watch or want to know going forward are the following things: First, will Obama and limit the number of challenges, or will he follow Bush's lead and challenge everything, no matter how insignificant? Second, will Obama stick to his promise of both grounding the challenges into some constitutional priniciple AND will be concise regarding what is being challenged? So far he has shown himself to be sensitive to the Bush administration strategy of being vague about the specific challenges. And third, will Obama revert to precedent and leave the challenges to the OLC? What got the Bush administration into trouble is that the process was distorted by the Office of the Vice President, and in particular David Addington, who was allowed to review any bill for constitutional infractions without the input, or knowledge, of the OLC.
If Elwood was serious about his criticisms, he would leave the Bush administration behind and help his readers understand what really is at issue with the use of the signing statement.
The Bush administration often used the argument that the criticism regarding their use of the signing statements was something drudged up by political opponents and not a fair criticism--the basis was a quantitative assessment of Bush signing statements--how could it be a problem if Bush had issued fewer signing statements than any president before, including his immediate predecessor, Bill Clinton? In fact, this criticism was also leveled at those who testified before either the House or Senate Judiciary Committee. While technically it is right, in substance it is wrong.
I bring all this up because Elwood has blogged about Obama's recent signing statement of the Ronald Reagan Centennial Commission Act, and one of his points of criticism stems from this quantitative misread.
Elwood, like me, has found it interesting that Obama referred to a predecessor's signing statement in defense of his own, and it seems as if he feels slighted that Obama reached to the Reagan administration to find a challenge to they hybrid commissions created by Congress. Elwood notes that in 2001, Bush challenged a Commission that was established to prepare for the 50th anniversary celebrations of Brown v Board of Education that took place three years later. It is clear that Obama reached to the Reagan administration because this was a challenge to a Commission established to honor Reagan. He could have easily found a challenge in Bush I and Clinton's presidency, but that would have not been rhetorically symmetrical nor have the impact that the one he chose.
Elwood also takes notice to Obama's statement that he notified Congress of his constitutional objection. He writes:
Confirming that such notice was given in the signing statement itself seems prudent as a matter of congressional relations, but it is more a matter of style than substance. Although there have certainly been exceptions, administrations of both parties (including the Bush Administration) have routinely advised Congress of their constitutional objections through informal contacts and formal bill comment letters. The Obama Administration has now taken an additional step to "paper the record" by noting that fact at the time of the signing statement.
A couple of things here. First, there seems to be a great deal of communication with the Congress when a challenge is made. As my colleague Bryan Marshall has found while serving as an APSA Congressional Fellow, as part of the long term negotiations between the president and the Congress to get a bill passed, when there is a sticking point, the administration and the Congress often comes to an agreement to allow the sticking point to proceed so long as Congress signs off on a formal challenge by the president. Thus the signing statement is a safety valve that allows both sides to save face when backing away from a veto challenge. Second, if we wanted to get really technical, we should applaud Obama for abiding by a law the Bush administration refused to acknowledge. In the 2002 DoJ appropriations bill, Senator Patrick Leahy added language requiring the administration formally inform the Congress whenever it used the signing statement to challenge the constitutionality of a provision of law (see Section 530D to the 21st Century Department of Justice Appropriations Authorization Act). Third, in Obama's formal memorandum on using the signing statement, issued March 9 just ahead of his first constitutional signing statement, he promised, in principle #1, that he would "...take appropriate and timely steps...to inform the Congress of its constitutional concerns about pending legislation."
The point where Elwood cannot shake old habits is here. Elwood writes:
For those of you keeping score at home, based on the listing of signing statements on coherentbabble.com (which includes both constitutional signing statements and uncontroversial rhetorical or laudatory signing statements), President Obama has issued more constitutional signing statements than President Bush had at this point in his presidency (by my count, four versus one).
A point of clarification here. All legislation is not created equally. If you look at the first signed pieces of legislation during 2001, much of it is ceremonial, such as dedicating buildings and roads or appointing individuals to ceremonial commissions. In fact, it is unusual for constitutional challenges to come during the first half of the year. Most do not start until August, when the Congress begins to fire appropriations bills at the president. Clearly Obama has been given more substantive legislation early on because of the state of domestic and foreign policy. These are not usual times. If Obama wished to get technical, he could counter that he followed the lead of his predecessor and waited until March to make his first challenge. Obama's first challenge came on March 11, 2009 and Bush II first challenge came on March 20, 2001. But that is technical and really meaningless in the long run. Just like making quantitative comparisons between presidents is meaningless in the long run.
What does matter, and what we all should watch or want to know going forward are the following things: First, will Obama and limit the number of challenges, or will he follow Bush's lead and challenge everything, no matter how insignificant? Second, will Obama stick to his promise of both grounding the challenges into some constitutional priniciple AND will be concise regarding what is being challenged? So far he has shown himself to be sensitive to the Bush administration strategy of being vague about the specific challenges. And third, will Obama revert to precedent and leave the challenges to the OLC? What got the Bush administration into trouble is that the process was distorted by the Office of the Vice President, and in particular David Addington, who was allowed to review any bill for constitutional infractions without the input, or knowledge, of the OLC.
If Elwood was serious about his criticisms, he would leave the Bush administration behind and help his readers understand what really is at issue with the use of the signing statement.
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