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.

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.

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?