Friday, October 08, 2010

Obama's Latest Signing Statement

It is too bad that Chad Pergram does not look past his own newsroom for his discussion on Obama's purported pocket veto, for if he did, he would have quoted Professor Robert Spitzer, whose work on the pocket veto, and the "protective return" pocket veto would have given life to this wiki style description of this unusual form of the veto. Actually, instead of reading Pergram's analysis, why not go directly to Spitzer's recent analysis at the Huffington Post?

While I was looking to see whether the administration was attempting the protective return, which they did last year and this time, I came across the president's first constitutional signing statement in a long while. President Obama, in signing the "Intelligence Authorization Act for Fiscal Year 2010," issued an interesting challenge--and seemingly broke from his pledge last year to stop issuing public constitutional challenges.

Obama issued two challenges of interest. And both are consistent with the trend among recent presidents--including Bush II--to attempt to control information and the actions of inferiors.

The first challenge is a recent trend to limit who in Congress gets briefed on sensitive information. As Jake Tapper details, the Speaker of the House has been pushing for "robust oversight," which involves letting as many members of Congress know what the administration is doing in the area of intelligence--in particular things like covert operations, "Black Prisons," etc. Right now, the deal is for the President to inform the "Gang of Eight"--Eight congresspersons from the House and Senate leadership and intelligence committees--and Pelosi wanted to undo it. Apparently, when Obama threatened a veto of the intelligence authorization bill, Pelosi backed down and a deal was worked out to allow Congress "a general description" in exchange for "recognizing the President's authority to protect sensitive national security information." The kicker is in the last sentence--and thus the challenge: "...my Administration understands section 331s requirement to provide to the intelligence committees 'the legal basis' under which certain intelligence activities and covert actions are being or were conducted as not requiring disclosure of any privileged advice or information or disclosure of information in any particular form. (emphasis and underline added)" First, you suppose that was Congress's understanding? Second, nothing like being specific: "...disclosure of information in any particular form"!

What did get overlooked is the second challenge--and an interesting challenge at that. The second challenge involves whistleblower protections for those in the intelligence communities. Last year, Obama got into trouble for repeating a Bush tactic in trying to prevent any whistleblower protections at all. In a signing statement to an omnibus spending bill in March, 2009, Obama challenged a provision (that was a rider) that refused pay of anyone in the Executive Branch who attempted to prevent a government whistleblower from coming forward. In his signing statement, Obama said that the provision would not "detract from his authority to direct the heads of executive departments to supervise, control, and correct employees' communications with Congress." This infuriated Members like Senator Charles Grassley (R. IA), who has been committed to whistleblower protection. He, and Senator Patrick Leahy (D. VT) went after the Bush administration when it tried to kill the whistleblower protection they built into Sarbanes-Oxley. They declared victory, only after continually pursuing the administration for nearly a year (and it appears that even though the administration claimed to capitulate, in reality they didn't--they just pretended, hoping that Grassley and Leahy would move on--see my 2005 conference paper on the Bush action.)

In the Intelligence bill, Obama argues that his "understanding" of the whistleblower provision first does not include information deemed privileged or confidential (which is interesting given that whistleblowers are not usually known to disclose information that is public). And second, Obama obscures the challenge by simply citing a similar Clinton-era challenge:

Moreover, the whistleblower protection provisions in section 405 are properly viewed as consistent with President Clinton's stated understanding of a provision with substantially similar language in the Intelligence Authorization Act for FY 1999.


As I have stated earlier, if Obama was serious about being more transparent with his signing statements, then he would state the reason for the challenge or the interpretation in his signing statement, and not make a general reference to an interpretation in a previous administration. First, he is not clear about what part is similar, and second, he assumes that the typical person won't go looking for the Clinton signing statement to look it up and be sure that his interpretation is on the level. Or he is counting on the fact that most journalists--taxed for time or interest--won't go looking themselves. And given the fact that no other journalist seems to mention the whistleblower challenge leaves me to believe this is the case, though equally as plausible is the unusual protective return pocket veto at the same time the signing statement is issued, playing on the media's need for things that are unusual.

In Clinton's challenge, he wrote:

Finally, I am satisfied that this Act contains an acceptable whistleblower protection provision, free of the constitutional infirmities evident in the Senate-passed version of this legislation. The Act does not constrain my constitutional authority to review and, if appropriate, control disclosure of certain classified information to the Congress. I note that the Act's legislative history makes clear that the Congress, although disagreeing with the executive branch regarding the operative constitutional principles, does not intend to foreclose the exercise of my constitutional authority in this area.

This is a generous view of what really happened in Clinton's case. According to Thomas Newcomb ("In from the Cold: The Intelligence Community Whistleblower Protection Act of 1998." 53 Administrative Law Review. 1235. 2001), the Congress--and in particular the Senate, did not concede that the president had a constitutional right to impede whistleblowers, in part by relying upon testimony from my friend, Lou Fisher, then at the Congressional Research Service, who argued that the Congress, as much as the President, had the constitutional right to regulate national security information. In the end, the stipulation that the president had to get out of the way with communications between folks inside the intelligence services and Congress was excised in conference committee without recognition of the existence of a constitutional prerogative of the presidency.

So it begs the question just what Obama's view of the whistleblower protections are in light of his challenge from last March 2009 and the very vague nature by which he made his current challenge? What is clear is that Obama's use of the signing statement is every bit of a mystery as was his predecessor's use.

Saturday, October 02, 2010

The Signing Statement, Terminator-Style

Since George W. Bush made the signing statement popular, more and more state governors have begun to take advantage of heightened press attention to the device to attract additional press attention on their own. Case in point is Governor Schwarzenegger's signing of a California bill decriminalizing possession of an ounce of pot or less. In what is considered a rhetorical signing statement, Schwarzenegger signs the bill and then attaches not just his reasons for signing, but also his own political view about a larger issue.

To make sure that Republicans and conservatives did not think the Governor had lost his mind and decided to move from Sacramento to Haight-Ashbury, he explained that the only reason he agreed to the measure was to help the cash strapped State. Schwarzenegger wrote:

...I am signing this measure because possession of less than an ounce of marijuana is an infraction in everything but name. The only difference is that because it is a misdemeanor, a criminal defendant is entitled to a jury trial and a defense attorney. In this time of drastic budget cuts, prosecutors, defense attorneys, law enforcement, and the courts cannot affort to expend limited resources prosecuting a crime that carries the same punishment as a traffic ticket.

In terms of framing, the Governor has framed this issue in terms of the budget cuts and not in terms of individual rights, thus selling it to the GOP as an act toward saving taxpayer money.

But wait, there's more. The Governor also connects this signing with a larger issue, Proposition 19, which "would legalize the growth, possession and distribution of marijuana in California." He wrote: "I am opposed to decriminalizing the possession and recreational use of marijuana and oppose Proposition 19, which is on the November ballot. Unfortunately, Proposition 19 is a deeply flawed measure that, if passed, will adversely impact California's businesses without bringing in the tax revenues to the state promised by its proponents."

So Schwarzenegger uses the issue of decriminalization to lure press attention to his signing statement, that simultaneously insulates his signature of the bill (defense of the state treasury) while also stating his opposition to measure on the ballot in November. This seems to have worked, as his actions, and statement, captured the attention of the national press, both print and broadcast.

Monday, June 28, 2010

Kagan and Presidential Power

The Kagan nomination hearings have begun and while much of the media attention has focused on the politics of the hearings (while acknowledging that her confirmation is a foregone conclusion)--her stance on banning military recruitment while at Harvard or her comments regarding what a farce these hearings are in the first place--and very little on her views about presidential power. In fact, for Democrats--who got so agitated over the issue of presidential power in the Bush administration, they really should be concerned about Kagan's views on the issue of separation of powers and presidential influence of the regulatory process because she will join Alito, Scalia, Robert, and Thomas as a fifth justice in favor of a powerful, unitary executive. How do we know this?

In fact, her views are clearly laid out in her 2001 Harvard Law Review article, "Presidential Administration." The problem is legal scholars, members of the press, members of Congress, and analysts for the Congressional Research Service do not see her views for what they are--Unitarian. The last one is particularly troubling since it is supposed to clarify issues for Congress in the not for public consumption reports it issues on behalf of congresspersons.

The Congressional Research Service issues reports to members of Congress--at taxpayers expense--but will not make them available to the public. Fortunately groups like the Federation of American Scientists archive these reports and make them available for free to anyone with Internet access. In this particular report, CRS analyst Todd Tatelman takes on the issue of presidential power and Kagan's views a la "Presidential Administration." In the end, he confuses and misinforms.

First, and I may be a bit biased in this account, he does not refer to any work by a political scientist when he discusses either presidential power theories or the unitary executive theory in particular. Second, his overview of the unitary executive theory isn't right, which largely comes from a failure to review the literature on the unitary executive. And finally, he accepted at face value Kagan's thesis that the Clinton administration's approach to rulemaking was anti-unitarian.

First, because he does not consult political scientists--and since he himself is trained as a legal scholar--he doesn't have any ideal on the major theories of presidential power. In fact, he reduces--much the way Kagan did--presidential power theories into three camps--the "traditionalists," the "unitarians," and then Kagan's "administration." The traditionalists are nothing more than Howard Taft's "Stewardship" theory of power, where the president is left to carrying out the specific powers granted to him by Article II and nothing more. This theory was influential among academics through much of the 20th century. But its influence came to an end in 1960, with the publication of Presidential Power. Neustadt's theory, which still dominates the thinking of presidency scholars in political science and history, argued that the constitutional powers are not as important as what the individual brings to the office. There, the presidency succeeds and fails on the shoulders of the man behind the desk. His credibility, his reputation, his ability to influence others to do what he wants to get done is how the presidency works. Those needing persuading include the Congress, the press, interest groups, the American public, foreign leaders--everyone and anyone. Thus this view of power, to no surprise, places the president at the center of the political system. Ask any individual in America today who the most important political leader is, and they will tell you it is the president. The media certainly believe it in the sheer volume of coverage devoted to the man and the institution. The flaw in the theory, of course, is its focus on the individual in the Oval Office and not to the institution, that gets built by the contributions of those who came before.

So in Tatelman's introductory discussion of theories of power, he overlooks the "Grand Canyon" simply because he didn't know it was there.

Second, he fails to provide an accurate description of the tenets of the unitary executive theory--something that also likely happened because of his failure to adequately review the literature. As Tatelman argues, unitarians "ascribe to a view of presidential authority that has three prongs: First, unitarians often argue that the President has a constitutionally based duty to provide policy direction to officers of the United States; second, unitarians claim that the President possesses the unfettered power to remove from office any officer who does not comply with the President's policy directive; and finally, unitarians generally assert that Congress cannot constitutionally assign executive powers to agencies or other entities that are independent or outside the scope of the President's control."

OK, to the layperson, this may seem obtuse, but if you read it carefully, you may be scratching your head that each of the three prongs were pretty much the same. How can a paradigm of presidential power not differentiate its tenets? If he would have looked at my dissertation, for instance, he would have found my distillation of the three tenets of the theory taken from a review of the literature from legal scholars who built it in the late 1980s and early 1990s. As I argued, the three tenets are as follows: First, the president has the prerogative to remove subordinate officials without interference from Congress. While Congress (specifically the Senate) may have a say in who gets confirmed, they do not get to interfere in who gets fired. In fact, the only potential check on this first tenet comes from the politics of the moment and the president's standing with the public. For example, from a constitutional standpoint, President Bush was in his right to fire the federal prosecutors after the 2004 election. The politics of the moment, however, made the firing a disaster to his ability to govern, and in the end reduced the President's standing with the public and with members of his own Party. Second, the president--along with the vice-president--is the only elected individuals in the Executive Branch. As such, they are politically accountable for the decisions made by the bureaucrats. Thus unitarians believe that it is the president's prerogative to control the execution of discretionary decision making. Since the Constitution "vests" to the president the "executive power," it is his--and not a bureaucrats--right to a final say. The vesting clause is also something I wish to address below, because Tatelman completely missed the point of its importance to unitarians. And finally, third, the "Oath clause" of the Constitution commands the president to protect and defend not just his Office but also the Constitution of the United States. This means he is bound by oath to refuse enforcement of anything he believes is unconstitutional. In Tatelman's discussion of the important clauses of Article II to unitarians, he mentions the "Vesting" clause and the "Take Care" clause, but not the "Oath" clause. Now of course the Constitution gives the president weapons like the veto to do just this, but because the Constitution vests all the executive power to the president, it means that he is afforded tools not specifically mentioned by the Constitution--tools such as the signing statement. The signing statement gives the president the option to "save" an important piece of legislation by refusing defense or enforcement of a provision that violates the Constitution. Take my favorite example--FDR is given an important military spending bill during WWII, but the bill contains a provision that places guilt upon employees of the State Department--a so-called "bill of attainder." Since it is an important spending bill, FDR is boxed into a difficult position--does he veto it and perhaps place the free World in jeopardy, or does he enforce it but hold off on the provision throwing the State Department employees in jail? He did the latter, and the Supreme Court stood by him.

The unitarians place a great deal of importance on three clauses of Article II, as mentioned above. The "Oath" clause, which I just discussed. Second is the "Take Care" clause, which requires the president to "take care that the laws are faithfully executed." This is important because it gives the president the constitutional authority to oversee the manner in which any executive officer executes the law--including those we call the "Independents"--members of the independent regulatory agencies and commissions such as the FCC or the SEC. And then finally there is the "Vesting" clause. Tatelman, as noted above, totally misreads why unitarians think this clause--which can be found in each of the first three Articles of the Constitution--is so important. He writes that the clause is "best read and most properly understood to be a general grant of power to the President. Focusing on the language "shall be vested," unitarians believe that this construction, identical to the construction used to grant judicial power to Article III courts, creates a single and exclusive executive actor, namely, the President. (emphasis mine)" But they are not identical, which is why unitarians find it so important. If you look to the "Vesting" clause of Article I, it says that the "legislative power herein granted shall be vested in a Congress..." In Article III, it says that the "judicial power shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." Now in Article II is simply says that the "executive power shall be vested in a President of the United States." See the difference? In Article I, it limits the legislative power to those provisions laid out specifically and deliberately in Article I. In Article III, it dilutes the judicial power by dividing it between the Supreme Court and the inferior courts created by the Congress. But the president has ALL the executive power, which for unitarians means those powers specified in Article II and those executive powers outside, including those called "prerogative powers." Had Tatelman done a careful reading of the literature on the unitary executive, this point would have hit him like a heavy object. But since he missed it so badly, at least for me, it threw the rest of the analysis into doubt, and for good reason.

Finally, there is his reading of Kagan's thesis and his willingness to believe that she articulates a theory distinct from the unitary executive theory. Tatelman believes Kagan that Clinton exercised a different kind of influence over the bureaucracy than his Republican predecessors, which makes him un-unitarian.

In my dissertation, I walk the reader through the institutionalization of presidential influence over rulemaking that started with the Reagan administration and continued through the Clinton administration, and how it tied to the unitary executive theory. I will summarize that here and explain where Tatelman's analysis falters. The Reagan administration used two important executive orders (12,291 and 12,468) to gain influence over the bureaucracy by centralizing rulemaking oversight inside the OMB (the eyes and ears of the White House inside the bureaucracy) and by forcing agencies to submit their yearly regulatory agendas for (tacit) approval or disapproval by the White House. The Bush I administration continued with this process by empowering the vice president with a central role in controlling regulations. It was the intent of the Reagan and Bush I administrations to control the bureaucracy in an effort to throttle regulations that were deemed harmful to business or other important constituencies. Thus there influence was a negative influence. When the Clinton administration came to office, its rhetoric was about transparency in the regulatory process, but in practice it continued with its predecessors in exercising a high degree of influence within the bureaucracy. Clinton issued Executive Order 12, 866, which simply combined the Reagan orders and added, as a bonus, the requirement that the independent regulatory agencies and commissions submit their yearly regulatory agendas to the OMB (actually, to OIRA within OMB). Clinton did this while the Democrats controlled the Congress, so there was little to no reaction to the new order. When the Democrats lost control of the Congress in 1994, Clinton used the bureaucracy to "end-run" the Congress--to get things done administratively that he could not get done legislatively. This prompted the famous Begala quote, "Stroke of the Pen, Law of the Land. Kinda Cool." Kagan wrote of this authority: "When Congress delegates discretionary authority to an agency official, because that official is a subordinate of the President, it is so granting discretionary authority (unless otherwise specified) to the President." This is ripped right from the pages of unitarians--the president of the US has the authority to check the actions of bureaucrats as the top political person in the Executive Branch. Just because the president seeks to exercise positive influence over the bureaucracy, as Clinton did, does not make him different from his Republican, unitarian predecessors. The difference is one of degree, and not kind.

Thus to conclude, as I sit and watch the Senators with their opening remarks, I have heard no concern with the nominees views on presidential power. This was front and center just four years ago when the Senate Judiciary Committee considered the nomination of judge Samuel Alito, and it should be front and center today with nominee Elena Kagan.

Friday, June 04, 2010

Document Dump!

For those who want to peek behind the curtain of the White House--to see how decisions get made--then there is no better time than when a President releases records from his administration. Five years ago the Reagan Library released the Alito memos, which detailed the strategy to create the signing statement, among other things.

Now that President Obama has nominated Solicitor General Elena Kagan to take over the Supreme Court seat vacated by retiring Justice Stevens, and since Kagan previously worked as a domestic policy adviser in the Clinton administration, the Clinton Library has dumped a number of her memos which are fascinating. So if the "tic toc" of politics is your thing, then you have to visit these documents and read through them.

Tuesday, May 11, 2010

More On Missouri

The good folks working for Missouri Senator Jason Crowell (R) have shared with me a letter they sent to Missouri Attorney General Chris Koster (D) imploring him to move forward with judicial action to over turn a recent signing statement challenging a provision of a bill dealing with funding to elementary and secondary education in the State.

Senator Crowell makes a number of arguments to bolster his case:

  • The Governor has exceeded his constitutional authority when he issued the challenge: The Missouri Constitution only allows the governor, when presented with a bill one of three options--sign it, veto the whole bill, or line item veto bills dealing with appropriations;
  • The executive branch cannot declare a law unconstitutional: Senator Crowell cites a MO. court opinion where the attorney general issued an opinion challenging the constitutionality of a provision of law. The court found that the attorney general did not have the constitutional authority for such an action;
  • The governor may not challenge the purpose behind an appropriation: The Governor did not challenge the appropriation but rather challenged the wording of how the money should be spent: The argument here is when the governor is faced with an appropriation bill, he has to strike the provision down, not rewrite it;
The interesting thing here is that Senator Crowell admits that the provision may indeed be unconstitutional because it inappropriately legislates" though an appropriation act." Further, the appropriation attempts to provide money for several different things while the MO Constitution mandates that appropriations must be for "single subjects."

Crowell concludes:

With this said, in my opinion, a constitutional issue as to the validity of section 14.005 may exist but that constitutional issue is solely a matter for the judiciary of the State to determine, not the Executive. After careful review of the unprecedented actions of Governor Nixon, I respectfully request you to use any and all legal powers to ensure that the separation of powers found in Missouri's Constitution are protected as quickly as legally possible.

First the challenges. The second challenge about the executive branch being unable to disregard the law does not apply here since we are talking about the governor, and not an inferior executive branch officer. The other challenges hinge on whether the governor is really bound by three choices--sign a bill, veto a bill, or item veto appropriations bills? Here I would suggest a look into the actions of previous governors because, just like George W. Bush, the signing statement that got all the attention was hardly the first one ever used. My bet is that Governor Nixon's signing statement is not the first signing statement challenge issued by a Missouri governor. Thus going into the courtroom, the legislature would have to tell a judge why this one is unconstitutional and not the previous ones. This was the strategy of the Reagan administration--to use the signing statement on bills that were not likely to draw much attention so that when they were used on a bill with a high public profile, the administration could point to all those that had been used without a ruckus by the Congress or anyone else.

There is also the question of standing, which has been key with the presidential signing statement and the focus on this book by Christopher May. May argued that one big problem with a president defying the will of the legislature is a lack of standing to sue. The courts cannot get involved proactively, but instead must wait until a suit is brought to the courts. And a suit may only come to the courts if the parties have standing to sue. For Senator Crowell, he cannot sue on behalf of the Congress, but instead must get Congress to authorize a suit. Even though the MO. legislature is controlled by the Republicans, it is still a tall order to get the entire Congress on board.

Instead, the better hope for a judicial outcome would be to get some of the school districts to sue. The Powers Report makes the case that 151 MO. school districts will be negatively impacted by the challenge, and anyone of them, or all, will have standing to sue. In that case, Senator Crowell could provide an amicus brief challenging the governor's action.

I guess we next wait for the attorney general's response, though I think we all know what he is going to say.

Thursday, May 06, 2010

Return of the Signing Statement

But not what you think.

There is a separation of powers battle going on right now in Missouri, and the signing statement is right at the center of it. If you are confused, then let me explain.

It is my belief that the current use of the signing statement was largely influenced by chief executives at the state level, and not the federal level. When the Reagan administration was defending its use of the signing statement back in the 1980s, they pointed to actions of governors, who had used the signing statement frequently to challenge defective provisions of law--much the way that presidents have pointed to the use of the line item veto by state governors to underscore why we should not be worried about the president having the same ability. I had filed this fact away when I was working on my dissertation as something that I should return to down the line--how many, how often, and how long have governors been using the signing statement to correct defective provisions of law? And so I have found bits and pieces of evidence where it has been used--for example, former Governor of Kansas turned current Secretary of HHS Kathleen Sebelius frequently used the signing statement to do battle with the Kansas State Legislature (such as this example of what I call a rhetorical signing statement).

And this brings me back to the beginning. Last month, Missouri Governor Jay Nixon (D) used a constitutional signing statement (.pdf) to challenge an education appropriations bill. Nixon wrote in the final paragraph of the statement:

The Language in Section 14.005, purporting to deviate from current law, is legal surplusage and beyond the constitutional authority of the General Assembly. Therefore, consistent with the requirements of Article IX, Section 3(a), and in recognition of the limitations imposed by Article III, Section 23, the Department of Elementary and Secondary Education shall distribute the funds appropriated under Section 14.005 of Senate Committee Substitute for House Committee Substitute for House Bill No. 2014 consistent with existing law.

There it is--plain and to the point. The legislature so far has been fumbling as to the appropriate course of action--sue using their own attorney, or "...ask Attorney General Chris Koster to do so." Never fear, the attorney general is here.

Senator Jason Crowell (R) of the Missouri legislature has asked Missouri Attorney General Chris Koster (D) to look into the action to determine its legality. Crowell argued that the "...governor has no authority to interpret the constitutionality of legislation passed by lawmakers--he can merely approve it, veto it or, in the case of budget bills, veto specific line items...the signing statement...is violating the separation of powers and...sparking a 'constitutional crisis.'"

No word yet out of AG Koster's office on what he will do. My guess is that Senator Crowell isn't so concerned with the signing statement, but instead the politics of the AG's decision. Force the AG to decide between the constitutional place of the signing statement or his boss as the head of the ticket. I am willing to bet that previous Governors of Missouri have used the signing statement to challenge provisions of law--and Nixon, who once served as Missouri's AG, probably knows this. But since the signing statement is so obscure (Crowell admitted to not understanding precisely what it was himself), the legislative Republicans will have an easier time framing its use in terms of tyranny. Thus in this AP article, one MO. Senate Republican called it "Tyranny" while another claimed it as "an unprecedented power grab." Heck, it worked wonders for congressional Democrats back in 2006 when George W. Bush was under the spotlight for his use of the signing statement, so why not now?

Stay tuned...

Monday, February 15, 2010

Why Is It So Hard To Get It Right?

This book review of Gary Wills's new book on executive power is emblematic of why my attempts to make the unitary executive theory mainstream will probably never happen.

The book, Bomb Power: The Modern Presidency and the National Security State, apparently makes the case that the persistence of international crisis (mostly the Cold War) has allowed the modern presidents (since FDR) to centralize massive power within the Oval Office--apparently far greater power than even imagined by Alexander Hamilton, the Godfather of the strong presidency (if you believe revisionist history). I have a great deal to say in a critique, but I would prefer to read the book before I do (however I would love to hear from you if you have read the book and what you think about the argument).

What burns me is the things--the important things--that this reviewer, Jurek Martin, gets wrong. There are the minor things--for instance, Martin notes that the Pentagon Papers were "...published only after the Supreme Court so ordered." That isn't true. The Papers had already begun running in the "Washington Post" and the "New York Times" before the Nixon administration asked for the injunction. Nixon was delighted at how the Papers dimmed the light on Camelot, and was persuaded by Kissinger to put a halt to them because of their damage to elite opinion.

No, what gets me is Martin's characterization of the unitary executive and the signing statement. He writes of the unitary executive:

But the organic growth of the national security state needed theoreticians and they comprise Wills’s large Hall of Infamy. It was the (ironically conservative) Reagan justice department, under attorney-general Edwin Meese, that developed the theory of the “unitary executive” – which basically says that the law is anything that the president says it is.

First, why is support for the theory antithetical to conservatives? Why "ironical"? Second, more to the point, is the definition of the unitary executive--"which basically says that the law is anything that the president says it is." Where in the literature do any scholars, including myself, define the unitary executive this way? As I have noted elsewhere, there are three tenets to the unitary executive: 1) the executive power belongs to the president and the president alone; 2) that the president has an independent right to interpret the Constitution and to determine what actions need be taken in the face of laws that he considers to be unconstitutional; and 3) as the only nationally elected official in the United States, he has a constitutional obligation, via the "Take Care" clause of Article II, to make sure that the laws are faithfully executed. This means that the president has a right to know, if not influence, how inferior executive branch officers behave--how they enforce the law, who they communicate with outside the Executive Branch, etc. Now since the unitary executive theory first came to life, those three tenets have been in place. What in those three tenets suggest that the president may claim the law means what he feels it means? What Martin knows about the unitary executive apparently has come from blog postings.

Then he argues that the unitary executive has "produced a welter of 'signing statements' in which a president says he can disregard, for whatever reason, any section of a duly passed congressional bill he has just, er, signed." First, the signing statement, in all forms, preceded the birth of the unitary executive. Granted, they don't start becoming significant until the Reagan administration, but even so, the unitary executive--as a formal theory--didn't debut until after Reagan left office. So while the two have a lot in common, one thing it doesn't have in common is cause and effect. And then, just like his definition of the unitary executive, his definition of the signing statement is equally as bad--the president can disregard, "for whatever reason"?? I wish Martin would find for me any signing statement--even the more egregious Bush signing statements, that say: "I refuse to enforce Section 111 just because." Then finally Martin says that "Bush the Younger" issued "more then (sic) 1,400 such reservations..." He may have gotten this number from Wills, at which case I am interested in his citation. But 1,400? By my counting, Bush issued less than 1,200. Where the extra 200+ came from is beyond me.

But this is the "Financial Times", which has a readership considerably higher than this blog posting or my research. I am obligated to be precise and accurate, why aren't they?

Saturday, February 13, 2010

Today's New York Times carries a story about Obama's turn toward unilateralism after a first year that was a mixed bag of success and failure (and an article on presidential power that was not penned by Charlie Savage).

This move is so predictable to anyone who has watched presidential behavior in the last 30 years--in fact, not to toot my horn, but it is something I told reporters last January when asked if Obama would be a different president than President Bush (one was to Pacifica Radio and the other was to Congressional Quarterly). Then I stated that once the dust had settled and the glimmer of the Obama victory faded, his public approval numbers would begin to fall. Further he would find frustration in trying to advance important policy through the Congress--promises he had made on the campaign trail--and with an impending re-election campaign coming--would need to act quickly--thus would turn to the unilateral powers that are now deeply entrenched in the Oval Office.

So here we are, just a little over a year after Obama was sworn into office, and the administration is announcing that it gave Congress its chance to come on board, and Congress failed to act:

Mr. Obama has not given up hope of progress on Capitol Hill, aides said, and has scheduled a session with Republican leaders on health care later this month. But in the aftermath of a special election in Massachusetts that cost Democrats unilateral control of the Senate, the White House is getting ready to act on its own in the face of partisan gridlock heading into the midterm campaign.


"Look, we gave it a shot and Congress just wouldn't give us everything we wanted, so we all need to move on" seems to be the message here. The interesting thing about this is how quick the administration is to move to unilateralism and how flimsy of an excuse it has given--how many presidents in the past would have loved having control of both houses of Congress, including 59 Senators?

With each president since Reagan--bar one--the president moved toward unilateralism for good reason--they were dealing with an opposition that not only controlled one or both houses of Congress but were bitterly partisan. For instance Clinton didn't lurch toward unilateralism until 1995--after the Republicans took the Congress. And the one president who went unilateral right away when given a Congress controlled by fellow partisans? George W. Bush. George W. Bush had unified party control of government and a public approval rating that was sky high, yet behaved as if he was surrounded with a hostile public and Congress.

The problem to me seems to be that Obama hasn't figured out leadership yet. For instance, last year he made the ill-fated decision to allow the Congress to construct two major and controversial policies--health care reform and cap and trade--without the involvement of the White House. And when Congress failed, he now thinks that he can get by without them.

Congress is like that wild horse you often see featured in Disney movies that needs to be broken. The only way you break it is to get on its back and show it who is boss. You don't break a wild horse by putting it in a pen and allowing it to tame itself. Had the Obama administration told Congress from the outset what it wanted--and worked diligently at each step--chances are good that the President would not be in the pickle he currently is.

If he is looking for a history lesson, he should look to Reagan's first term. He gave Congress just a couple of major policies to focus on and he used a carrot/stick approach to getting what he wanted. He did the little things like posing with Members or inviting leaders on the yacht Sequoia for one on one time, and for those who were recalcitrant, he called their major donors or he singled them out for personal attacks--all of which worked. Had Obama taken a similar approach, you might not have 60 or 70 nominees bottled up by one senator--instead, he should have made Senator Shelby of Alabama a day-after-day symbol of Republican obstructionism and not waited until now to do so.

So from a research perspective, I am pleased to see that unilateralism is alive and well.

Yes We Can!

Saturday, January 16, 2010

There is a lot of flak the Obama administration is getting lately, some of it deserved, some of it not. And it certainly will only get worse as the November midterms draw near. A case of the hypocrisy in the flak appeared in yesterday's Wall Street Journal's OpEd page. Imagine that! Hypocrisy on the WSJ's OpEd page. And who better to dish the hypocrisy than Karl Rove?

Karl Rove offered a laundry list of items where Obama has reneged on campaign promises, and one of those promises is the signing statement. Rove has lept upon the recent information in last week's New York Times on how Obama has gone underground with his constitutional challenges, no longer using the signing statement, and instead using OLC opinions which are not always published. It is interesting that Rove relies upon this Times piece given how much effort the Bush administration expended trying to undermine it back in 2006 and 2007.

First, let's brush aside the things Rove got wrong. He argues that presidential signing statements date to "Andrew Jackson." They date to James Monroe. Rove argued: "Because of Washington's hyperpartisan atmosphere, President George W. Bush drew heated criticism from Democrats for his signing statements." Actually the criticism was bipartisan--and leading the attack was then Republican Arlen Specter, who held the Senate hearings on the Bush administration's use of the signing statement in June 2006.

Next he argues: "Among [Bush's] toughest critics was Barack Obama..." That simply is not true. Obama was not a leading critic of the Bush administration's use of the signing statement. In fact, among the toughest was Senator John McCain (R. AZ), who was the only candidate for the presidency in 2008 to swear off using the signing statement for any reason should be become president.

Now the hypocrisy, which Rove claims is all Obama's. Rove writes:

Recently, the Obama administration admitted that after receiving the letter from Messrs. Frank and Obey, it stopped the practice. But the president still has aides examine each bill to identify provisions the administration will disregard. It's just that Team Obama isn't telling Congress which provisions it is ignoring. It's right for him to defend the office of the presidency. The problem is that he is doing it in a way that violates his own standards of transparency and accountability.

Wow. First, ever since the Reagan administration, it has been standard practice for the president's advisers to examine each bill to identify those provisions that warrant a challenge. In fact, up to the Bush administration, this was the sole duty of the Office of Legal Counsel inside the Department of Justice. If you want to complain about political advisers making suggestions about challenges, then Rove should have stayed in-house given that the vice president and his right hand man Addington were making decisions about challenges that contradicted the advice of the Office of Legal Counsel (guardians of the Constitution) as well as the President of the United States (see the 12/30/05 signing statement of the Detainee Treatment Act).

And second, Rove cannot possibly be condemning another administration about its lack of transparency in its use of the signing statement. If we go back to the strategy sessions in the Reagan Justice Department over the use of the constitutional signing statement, Samuel Alito, a young attorney in the DoJ, advised the use of constitutional challenges over bills where no one would pay much attention in an effort to slip it past the Congress. And then there is the Bush II administration. One of my Bush-era FOIA request asked for challenges that were reported to the Congress, which is a requirement written in statute. They gave me challenges made during the Clinton administration. This despite a GAO finding of several provisions of law that were not enforced. And then there are the signing statements themselves. Many were so vague that it was impossible to determine what was exactly being challenged or why. And then in 2007 and 2008, after public attention was drawn to the use of the signing statement, the challenges disappeared. Where did they go? It is clear they went underground to the OLC. I am convinced that the Obama administration's new strategy simply picks up where the Bush administration left off. Using the OLC to issue the challenges so as to avoid public scrutiny. My next round of FOIA requests will determine whether this is true or not.

So to me it takes a tremendous amount of moxie to criticize any administration for its lack of transparency given what the Bush administration did--often with the help of Rove--political operative par excellence! But then again, he picked the WSJ's OpEd page, which is never short on hypocrisy when it comes to criticizing Democrats.

Friday, January 15, 2010

New Research on the Signing Statement

My colleague Bryan Marshall and I have a new publication in Social Science Quarterly (March 2010) that examines the various conditions that explain the use of the presidential signing statement. In the paper, we looked at such conditions as divided government, federal election cycles, and whether the legislation was major or minor, and found that presidents seek any condition to provide the opportunity to move unilaterally. Interestingly we find that presidents are as likely to use the constitutional signing statement during periods of unified government as during periods of divided government.

For the time being, the article is available online at the Social Science Quarterly website.

Saturday, January 09, 2010

Be Careful What You Ask For

Philip Cooper, in his excellent review of unilateral devices a decade or so ago, noted that when elites begin to focus on the way the president uses a unilateral device, the president will shift to a different device that accomplishes the exact same thing but does not come with the same public scrutiny baggage. In the 1990s there was a lot of scrutiny of the executive order, for example, which Clinton was using in order to accomplish policy goals shut out by the Republican Congress. So Clinton simply shifted to a different device, or "tool" as Cooper called it, such as the "memoranda" to take the place of the executive order. Different device, same effect. What was different was public scrutiny.

A unilateral device, as you readers well know, is something that the president uses to accomplish political goals. Their value is they allow the president to circumvent the Congress. Examples of unilateral devices: the executive order, memoranda, the presidential proclamation, the executive agreement, and the signing statement.

Today's New York Times has an article about the signing statement and its use by the Obama administration that may confirm Cooper's argument.

The article notes that the Obama administration has laid off using the constitutional signing statement since last summer despite signing bills that should have elicited challenges. If you recall, Obama set off a firestorm in the Congress last summer when he challenged provisions of law dealing with US participation in international institutions despite earlier compromising with the Congress to allow the prohibitions to go forward. Obama caught a left-right series of punches from Democrats and Republicans upset with the challenges. After that, Obama issued no more constitutional signing statements (though he has issued rhetorical signing statements since). Yet, as the article notes, Obama signed legislation last month that contained the exact same prohibitions but did not issue a constitutional signing statement challenge the provisions. Instead the administration argues there is no need to repeat the challenge because of their previous challenges, backed up with an OLC opinion claiming the right to ignore the provisions. But that opinion was for a different bill, which does not seem to bother the administration.

Interesting.

There are a number of different theories surrounding the reasons why a president issues a constitutional signing statement. One theory is you make the challenges to any infraction in any bill in case the issue lands in the courts--the president can point to a consistent set of challenges refusing enforcement, as happened with the legislative veto in the 1983 Chadha decision. A second theory suggests that they are used in an effort to influence judicial decisionmaking, which was behind many of the bills in the last couple of years attempting to limit the use of the signing statement. A third theory suggests that they are used to influence bureaucratic decisionmaking. It seems that that administration may be abandoning that first theory in the belief that these issues are not likely to end up before the courts, so why consistently draw attention to the constitutional signing statement by constantly repeating yourself with identical challenges?

They may also be hoping that new strategy, coupled with the numerous obstacles they have raised to track the use of the signing statement, will simply cause the issue to disappear as the public turns their attention elsewhere. Maybe. But they may be behaving as Cooper believed--turning to a different device that is harder to track. In the article, Jack Goldsmith, who worked in the OLC in the Bush II administration, notes that turning to the OLC opinion has advantages over the signing statement in that OLC opinions "are often secret," leading to "somewhat less accountability." Thus the only way you would know whether or not a challenge was made would be to try to monitor the behavior of those who work for the president, an incredibly daunting task that even the Congress has trouble doing.

It is ironic--this behavior is in direct relation to the abuse of the signing statement by President Bush II. His actions, which drew such high profile scrutiny of the signing statement did not lead to the disappearance of the device, but instead lead to driving it underground, leaving less accountability and scrutiny to a device that was already hard to track to begin with.

Be careful what you ask for, I guess.

Wednesday, January 06, 2010

Meet the New Boss--Same as the Old Boss

SUNY-Cortland Professor Robert Spitzer, who studies the president and presidential power--and in particular the veto--took notice of, and responded to, an attempt by President Obama to use twist the language on the veto in a way to enhance the president's power over the Congress.

The issue is something known as the "protective return pocket veto," and Obama issued it on December 30 of last year (notice how it came on New Years Eve when no one was looking? Similar to President Bush's infamous torture signing statement of December 30, 2005). As Spitzer explains, the founders took pains to balance the relationship between the Congress and the president when it came to legislation.

As we all know, when the Congress passes a bill, it sends it to the president for his consideration. The president has ten days to act--sign it, not sign it, or veto it. Here is where the concern was--the veto gives the president a lot of control over legislation, and the Founders worried that it might be too much control. Thus instead of giving the president an absolute veto, they instead gave him a qualified veto, meaning that the Congress has the opportunity to override the veto, so long as it can must supermajorities in both chambers. The ten day clock was added to force the president to act, for without it the fear was the president would leave it on his desk and not act on legislation he did not like. On the other side, when the president vetoes a bill, he returns it to the Congress for action. Here is another potential problem dealt with by the Founders--what happens if Congress gives the president a bill that is controversial but then quickly adjourns, leaving him without anyone to return it to? In steps the pocket veto--any bill that has not run out the ten day clock when Congress adjourns is officially dead.

The protective return veto attempts to let the president have it both ways--vetoing a bill without sending it back to the Congress for action. President Obama's veto statement was titled "Memorandum of Disapproval"--which Spitzer notes is the nomenclature for the pocket veto, but in his message he wrote that the bill was vetoed though he cited Supreme Court precedent dealing with the pocket veto. As Spitzer argues, "...claiming the exercise of a non-return pocket veto while simultaneously returning the bill to Congress is a presidential power grab designed to stretch the no-override pocket veto into an absolute veto power that could be used anytime Congress is not in session, giving the president the very power the Founders sought to deny the office."

This practice of trying to add language to the veto power denied by the Founders was begun by Ford and pursued--despite Supreme Court opinion to the contrary--by each president since. It also is a practice that corresponds to the rise presidential unilateralism following Watergate--something many believed would disappear with Obama but clearly has not. And given his attempt at subterfuge by delivering it on New Years Eve, hopefully when no one was looking, is more evidence that the new boss is the same as the old boss.

Asked and Answered?

So yesterday I asked why the Weekly Compilation of Presidential Documents--updated regularly since 1965--stopped getting updated once President Obama took office. Well rather than asking rhetorically, I sent a message to the Government Printing Office asking them what gives. To my surprise--given that it is the government and that I have FOIA requests that have not been answered for months--they answered me within a day! Here is there complete answer:

The Weekly Compilation of Presidential Documents has been replaced by the Daily Compilation of Presidential Documents as of January 29, 2009. The Compilation of Presidential Documents collection is composed of the Daily Compilation of Presidential Documents and its predecessor, the Weekly Compilation of Presidential Documents. It is published by the Office of the Federal Register, National Archives and Records Administration (NARA) under the authority of the Federal Register Act, (44 U.S.C. Ch. 15; 1 CFR part 10).

This collection integrates material from the weekly publication dating from 1993, with Daily Compilation material as published from January 20, 2009 - forward. The website will be updated frequently, as information is released by the White House press office to Federal Register editors.

I think the last part is instructive: "The website will be updated frequently, as information is released by the White House press office to Federal Register editors." The fact of the matter still remains that this move to the daily releases has not necessarily made it any easier to monitor the behavior of the president.

Tuesday, January 05, 2010

Riddle Me Some More

For those who do research on the signing statement, the reliable place to go for the longest time has been the "Weekly Compilation of Presidential Documents." It has reliably been tracking everything that happens in the White House (within limits) since 1965, and since 1993 it has been online and searchable. Thus if you are looking for signing statements, all you need to enter is "Statement on Signing," and it will spit out each and every signing statement for that year. That is until the Obama administration.

If you are looking to the Weekly Comp to search out Obama signing statements, don't. As of January 26--just six days after Obama was inaugurated--the Weekly Comps stopped updating online. Instead, everything has seemingly shifted to the "Daily Compilation of Presidential Documents," which you can browse by month, but searching is a different question. If you want to search, you end up searching all government publications, which is not the same as searching one publication by year. So now if you enter "Statement on Signing", you will get your signing statements, but instead you will get all signing statements in the database.

I don't want to sound paranoid, but is it coincidence that trying to track the current president's signing statements just got harder and not easier?