Apologists

During the Bush administration, whenever controversy arouse, there would be the defenders in the media to rebut the claims--in essence--to apologize for its transgressions. Now that the Democrats control the White House, the apologists on the Left have come out. Case in point is Mori Dinauer at The American Prospect. She has a blurb today defending Obama's use of the signing statement. At point is Charlie Savage's NYT piece a couple of days ago that was critical of the signing statements issued so far by President Obama. She writes:

There's no journalist who understands the issue of presidential signing statements better than Charlie Savage, but his New York Times story today on Obama's use of the tactic almost feels premature. We learn that the president has "relaxed his criteria for what kinds of signing statements are appropriate," this has "riled" some congressional Democrats, and the American Bar Association's most recent president doesn't believe signing statements are an "appropriate practice." The problem is that while Bush's signing statements were all grounded in an absurd theory of presidential authority, Obama's have avoided mention of any such underlying theory.

The apology comes in that final statement: Bush's statements were all grounded in "an absurd theory of presidential authority" while Obama has not "mentioned" the theory once--the theory of course is the unitary executive. Actually, if you are worried about president's acting in accordance to the theory, then you want a President Bush who overtly defends aggressive actions via the unitary executive. As I have noted elsewhere, the unitary executive is alive and well inside the Executive Branch--having been placed there through careful use by Presidents Reagan, BushI, Clinton, and Bush II. The problem is that until the Bush II administration, it was subtle in the actions the presidents took. Presidents Reagan and Bush I referred to it on just a couple of occasions and President Clinton never did. But if you look at the actions these Presidents took, then it was easy to see the theory at play. The same is true for President Obama. There is really nothing in his actions to date to suggest that he is behaving any differently, and for good reason. The theory allows the president to accomplish things that cannot be accomplished working with others.

So before we breathe a sigh of relief or before we admonish others for being quick to jump to conclusions, we should look to the actions the president takes and match them with the tenets of the theory. You might be surprised.

A Unitarian or Not?

Charlie Savage of the New York Times has a report in yesterday's newspaper on the signing statement and the Bush administration that sums up where the debate on the device and its use by the administration is today. My thanks to Charlie for throwing some light my way by citing my data on the numbers of signing statements per president, which can be found on my webpage stretching back to the Reagan administration.

There are a couple of points in the column that merit comment. Toward the bottom, Savage writes:

Mr. Obama has attached signing statements to 5 of the 42 bills he has signed, focusing on 19 specific provisions. He also challenged, without listing them, “numerous provisions” in a budget bill requiring officials to obtain permission from a Congressional committee before spending money. It contained dozens of such requirements.

This represents a problem for those like me who research the signing statement--the neglect that rhetorical signing statements receive simply because they are not as sexy as their constitutional brethren. To date, Obama has issued 13 signing statements of which 5 can be classified as constitutional. What this means is that 5 signing statements contained provisions that challenged the constitutionality--or interpreted--provisions of the bill contrary to legislative intent. The majority--which has been the case to date for every president BUT the two Bush's--issued more rhetorical signing statements than constitutional ones. The rhetorical signing statement is designed to draw public (press/congressional/international) attention to the bill the president signs.

It is important that we do not forget both have important implications for power.

Later, Savage writes:

Still, unlike Mr. Bush, Mr. Obama has not mentioned the Unitary Executive Theory, an expansive view of executive power that conflicts with Supreme Court precedent. His only invocation of his commander-in-chief authority was limited, taking aim at a requirement that he get permission from a military subordinate before taking an action.

We must be cautious not to make the assumption that because he does not use the phrase "unitary executive theory" that it is not there. The unitary executive theory, developed by attorneys in the Reagan administration, has been around now through four successive presidencies. It's tenets buried deeply within and throughout the entire Executive Branch. And it was rare for a president to refer to it specifically and deliberately until the previous Bush administration, which could not stop mentioning it whenever and wherever it had the chance. But because the president does not say it aloud does not mean it is not there. The Clinton administration never used the term, and yet it supported its key tenets as much as the Republicans before and after did.

So look at the facts: Obama has people in key places--for instance the DOJ--who are proponents of the theory (see for instance the work of Solicitor General Elena Kagan). He has not revoked an executive order born out of the Reagan administration empowering the OMB--and in particular the OIRA--to monitor the behavior (on behalf of the White House) of the executive branch agents. And he continues to use the signing statement to advance principles of departmentalism, which is consistent with a key tenet of the theory.

So while Obama may not be behaving like his predecessor, the evidence thus far confirms that he is behaving like a unitarian.