The Candidates on Executive Power

Back in 2008, The Boston Globe ran a series of questions by the candidates for the nomination for the presidency, seeking their views on executive power. Now this time around, it is The New York Times that is prodding and poking the candidates to determine their views on executive power (to be sure, everyone should take these responses with a grain of salt given that Obama's responses are often at odds with his actions as president). In 2008, the responses by the candidates may have been tempered a bit by the overreach of then President George W. Bush. But that was then, and this is now.

The Republican nominees (save Rick Santorum and Michelle Bachmann) have returned their responses to the questions, which has covered the gambit from executive branch secrecy to interrogation to signing statements. And all, with the exception of Paul, have offered fairly beefy views of executive power, in line with the views of the Bush administration. Seems that four years is sufficient time to forget Bush's views on executive power and damage they did to the Republican brand.

I am interested in the subject of signing statements because it is my interest. There are a couple of interesting responses that I wish I was able to follow up in a candid discussion with the candidate himself. First, without any surprise, Ron Paul does not believe in signing statements. It would be interesting to determine what Ron Paul does believe in. I assume he believes in a strict construction of the Constitution, but the Constitution was not written to be strictly construed.

The remainder of the candidates had varying views of the signing statements. The governors had some of the more interesting views, which made me wonder if their understanding of the signing statement was influenced by what they have been told about the signing statement, or rather how they used the signing statement when they were governors? I believe some of the understanding comes from their experiences as governors.

First up in Huntsman. Former Governor of Utah, his answers sound like they were informed from advisers and journal articles, and not so much from experience. How so? Huntsman writes that signing statements are "a well-established tool for making clear the president's interpretation of a bill's terms" and that they serve a variety of purposes--transparency and to help judges interpret the law, similar to what Congress does in the legislative history of bills. You can get this from the law journals. First, the signing statement has rarely ever promoted transparency, including Obama's use of the signing statement. And second, we do not have any evidence that the signing statement makes any difference to judicial interpretation--in all likelihood, Huntsman was fed this line from former AG Meese's justification back in 1986 when announcing the use of the signing statement. Meese wrote:

To make sure that the President's own understanding of what's in a bill is the same...or is given consideration at the time of statutory construction later on by a court, we have now arranged...the presidential signing statement on the signing of a bill will accompany the legislative history from Congress so that all can be available to the court for future construction of what the statute really means.

This sounds a lot like what Huntsman wrote.

Perry's response sounds like it is informed from practice, though I am sure he got help from his staff. He explains that "Signing statements are not new and have been a part of the bill signing process throughout history" though I am sure the NYT question did not ask about the history of the signing statement, and I am sure Perry couldn't tell you just how long that history goes back. He did claim the signing statement was appropriate, though where the "objectionable aspects of the bill are collateral, relatively minor and can be addressed by the appropriate assertion of power by the President." This sounds a lot like Obama's defense of the signing statement back in 2009, when his administration released a memo defending the use of the signing statement.

Last up is Romney, another former Governor, who I am sure found the need for maximum unilateral action as the governor of a blue state. Romney's defense of the signing statement is full throated: he defends its use by noting that former presidents have used them to fulfill "the constitutional obligation to take care that the laws--which include the Constitution--are faithfully executed." For my money, I would have given him a gold star if he would have defended the signing statement based also on the oath clause of Article 2, and not just the take care clause, but props nonetheless. Romney also declares that he would use the signing statement to "set forth my understanding of ambiguous legal provisions or to protect presidential prerogatives established by the Constitution." Again, probably much of the declaration was informed by his advisers, but I am sure that Romney is familiar with the value of a signing statement to executive management.

And last there is Gingrich. Charlie Savage, writing in today's New York Times states that Gingrich "would not issue such statements." I am not sure that is precisely what Gingrich means. When asked, "Under what circumstances, if any, would you sign a bill into law but also issue a signing statement reserving a constitutional right to bypass the law?", Gingrich answers "None. I would not sign a bill into law that contained a provision or provisions I believed to be unconstitutional." But he doesn't stop there. He takes time chastising Congress for sending the President "...very complex but poorly written pieces of legislation", a practice, by the way, that took place when he was Speaker. But he continues with that: he condemns Congress for sending complex and poorly written pieces that "...may make it necessary for the President to issue a statement upon signing the legislation that provides guidance for how the legislation will be executed." That sounds very different from "None." In that part of his statement, it seems that Gingrich is saying that as president, he will not issue a signing statement so long as the Congress sends him legislation that does not require that a signing statement be used. Am I wrong here? It almost sounds to me like Gingrich is saying he will not use the signing statement to strike out provisions he believes are unconstitutional--for that, I presume he will veto it. But it does sound to me like Gingrich will use the signing statement to set the understanding of how various provisions should be interpreted, again I presume, even if it contradicts the wishes of the Congress.

Obama's Latest

The Obama administration has been hyping all week a potential signing statement to the National Defense Authorization Act of 2012. TPM reports on the 21st, in a question to a reporter from the Wall Street Journal, that Obama planned a signing statement to the National Defense Authorization Act's "controversial provisions"--in particular, a ban on trying Gitmo detainees here in the US and sending enemy detainees to 3d party countries. This is a recurrent theme between the Congress and the administration, similar to the back and forth over the White House "Czars". Last January, Congress sent the White House the "Ike Skelton National Defense Authorization Act for FY 2011", and the President issued a signing statement objecting to Sections 1032 & 1033--the Gitmo provision and the 3d Party country ban. In that signing statement, the President simply objected to the provisions but didn't officially challenge them. In the present case, the administration seems to be ratcheting up the volume by having the attorney general announce the challenge. But I digress.

While all the attention has been on the forthcoming challenge, the administration issued a signing statement to H.R. 2055, the "Consolidated Appropriations Act, 2012." The signing statement has at least 23 separate and distinct challenges, ranging from separation of powers concerns to foreign policy prerogatives to "Take Care" protections--it is a sweeping statement to a massive piece of legislation. I say that it has at least 23 challenges because the actual number is uncertain. Remember that Obama came into office never refusing to use the signing statement, but promising when he used it he would be transparent--we would know what precisely was being challenged, what constitutional provision it violated, and Congress would be informed whenever possible. In the latter days of the Bush administration, the objections became so vague that it was difficult to understand what challenges were at issue. Now it seems that this is the case with the current Obama administration. For example, Obama writes: "...several provisions in this bill, including section 627 of Division C and section 512 of Division D...". So he lists two of the provisions but not the other ones. Or later he writes "Numerous provisions of this bill purport to condition the authority of executive branch officials to spend or reallocate funds on the approval of congressional committees." He lists a couple of examples, but not enough to account for "numerous".

The signing statement also formally took on Congress's attempt at banning the trial of Gitmo detainees on US soil as well as sending detainees to 3d party countries. Obama writes that both of these provisions (Section 8119 of Division A for Gitmo and Section 8120 of Division A for the transfer) "violate separation of powers principles" and he intends on interpreting "them in a manner that avoids constitutional conflicts" while working with the Congress for their repeal. The same language also appears in the National Defense Authorization Act, FY 2011, and thus we should see a similar signing statement with identical language contained in the current statement. It also begs the question of why the focus on the latter statement, when he made the challenge in the former?

One final interesting thing to note about this signing statement that I cannot believe is a oversight or a mistake (generally nothing is cleared for publication in the White House without a serious vetting). As I have noted before, the administration has deliberately gone out of its way to make finding these signing statements difficult, something even the previous Bush administration did not do. First, they got rid of the Weekly Compilation of Presidential Documents, long the clearinghouse for presidential signing statements (and the documents I spent hours pouring over when I did my dissertation work). They said they were switching to the Daily Compilation of Presidential Documents, but then for the longest time they did not update the information past 2009. Even now it is only updated through October 20, 2011. Second, they have made a mess of the White House website. In the Bush administration, all one needed to do was to go to the "News" site to find the signing statements, but no more. The Obama administration has a place for "Signed Legislation" and a place for "Statements & Releases", and sometimes you can find signing statements at one and sometimes at the other. But what is clear is that there is no one place to go and find them. Now for the thing that struck me as interesting. In the recent iterations of signing statements, they were categorized under "Statements & Releases." The most current signing statement--and the one I refer to here--is categorized as Presidential Memoranda. I say this because signing statements are not Memoranda. Memoranda has its own classification similar to an executive order. I ran this by Lou Fisher today, and he agreed with me that a signing statement is a different beast. It may be that the administration is beginning the work on nudging the signing statement over the line into legal relevancy. Whatever the case, it merits closer attention to future signing statements.

The Signing Statement and the Courts

Tomorrow, Monday November 7, 2011 is the day those of us who follow the signing statement have been waiting for, because this is the day the Supreme Court will hear oral arguments in the decision M.B.Z. v Clinton (Docket No. 10-699). 

This case involves the American parents of a child born in Jerusalem who wanted their child's birth certificate to declare the place of birth "Jerusalem, Israel."  When Congress passed the Foreign Relations Authorization Act for FY 2003, the directed the Secretary of State to add "Israel" to the birth certificates of American citizens born in the Holy City.  Up to this time, it was the policy position of the U.S. to stay neutral as to the ownership of the City--Congress decided to change that policy in a law signed by President George W. Bush.

When President George W. Bush signed the law, he issued 21 separate and distinct challenges to numerous provisions, including two challenges (Sections 325 & 687) that grounded in the Due Process Clause of the 5th Amendment!

In this particular case, Bush objected to Section 214 of the Law, which is Congress ordering the Secretary of State to add "Israel" to the birth certificate and passports of children born in Jerusalem.  Bush wrote:

Section 214, concerning Jerusalem, impermissibly interferes with the President's constitutional authority to conduct the Nation's foreign affairs and to supervise the unitary executive branch. Moreover, the purported direction in section 214 would, if construed as mandatory rather than advisory, impermissibly interfere with the President's constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states. U.S. policy regarding Jerusalem has not changed.

M.B.Z. was born in 2002 in Jerusalem to American parents, and his parents requested that the Israel designation be added to his passport, which the Secretary of State refused to do.  The lower courts rejected their claim under the "Political Questions" Doctrine--that is the question at hand was better suited for the President and the Congress, not the courts.  In a surprising reversal, the Supreme Cour agreed to hear the case tomorrow.

The two questions at issue: First, the Political Questions issue of whether the Courts are competent to hear this claim and Second, whether the President's foreign policy prerogatives prevent Congress from legislating U.S. Foreign Policy.

Given how settled the Political Questions Doctrine seems to be, it seems to me that Congress will direct its attention toward the struggle over foreign policy prerogatives, as well as take the opportunity to address the constitutionality of a presidential signing statement.  If the Supreme Court decides to address the signing statement, it will be the first time the Supreme Court has take on the issue head on.  Also interesting is that this Supreme Court is made up of a number of justices who themselves worked in the Justice Department, and some who were instrumental in developing the signing statement into a potent presidential weapon.

Either way, this is a sleeper decision which means it has not gotten much media attention, but it clearly should.  For a lucid overview of the case, check out Neil Kinkopf's panel discussion to the American Constitution Society.

The House Strikes Back

The Financial Services and General Government Subcommittee of the House of Representatives Appropriations Committee reported their appropriations bill funding most of government for FY 2012 yesterday. The bill itself renews a battle the Congress had in April of this year when it sent the continuing appropriations bill for the DOD to President Obama, which he signed and then challenged in a signing statement. The signing statement seems to be something the Republicans in Congress are beside themselves in presidential usage, which would be funny if it weren't so sad.

In the continuing appropriations bill, the Congress attempted to shut down Obama's "Czars" overseeing Health Care reform, Climate Change, the President's Task Force on the Auto Industry and Manufacturing Policy, and the White House Director of Urban Affairs. President Obama, in his signing statement, challenged this section as interfering with the president's prerogative to obtain advice from his subordinates, despite the fact that not one person is filling these positions. In the current piece of legislation--H.R. 1--the House Subcommittee has put the shut down back in the game. In Section 632 of the bill, the Subcommittee states: "None of the funds made available by this Act or any other Act may be used to pay the salaries and expenses" of those positions. Thus far the White House hasn't issued a challenge via a "Statement of Administration Policy (SAP)", but expect one at some point. The positions continue to remain vacant, so one would wonder what the big deal is--why so much energy is being spent trying to kill, or save, these positions. I am sure the arguments on both sides are couched in constitutional language, but in reality this fight is completely political. The congressional Republicans want to campaign on killing health reform, climate change, etc. and the President wants to deny them the opportunity, and campaign on saving health reform, climate change, etc.

And the Subcommittee has taken up the issue of the signing statement in H.R. 1. In Section 203, they write:

None of the funds made available by this Act may be used to pay the salaries and expenses of any officer or employee of the Executive Office of the President to prepare, sign, or approve statements abrogating legislation passed by the House of Representatives and the Senate and signed by the President.

It is another attempt in a line of attempts by the Congress to make it look like they are really doing something about the signing statement, but really aren't. The President has the right to obtain advice from inferiors within the Executive Branch. The Founders put these folks in the Constitution to do just that. While I am sure Obama will challenge this provision (should it make it out of reconciliation), I am sure the Courts would also disagree with the provision, should someone have standing to bring the case before it. The Congress has the power to challenge the signing statement already within its grasp--provisions like this are designed to aid Members on the campaign trail as "standing up to Obama."

The bill also contains another provision that is likely to be challenged by Obama only because it already has been challenged. Section 713 of the bill protects whistleblowers--a popular provision on the Hill, and one championed by Senator Obama. But funny thing happens on the way to the White House. A change in institution changes your perspective completely.

In Obama's first year in office, he signed an omnibus spending bill that contained whistleblower protections added by Senator Charles Grassley, a long time champion of the protection. In that signing, he challenged the provision for "detracting from his authority to direct the heads of executive departments to supervise, control, and correct employees' communications with Congress..." Obama is not the first person to challenge whistleblower protections. President George W. Bush did ju jitsu to a provision in the "Sarbanes-Oxley" bill where he was able to construe whistleblower protections in the financial sector to pertain to apply on when Congress is investigating an issue. While it may seem like a stupid thing for a president to obstruct, from the White House's point of view, they want to know about any communications with anyone from inside the Executive Branch to anyone outside the Executive Branch. Given the highly partisan nature of American politics, the White House wants to protect against partisans in the Congress or media luring partisans inside the Executive Branch out in an attempt to divulge information that would be politically embarrassing to the President. And given the nature of our politics, it is easy to see that scenario unfolding.

There is another interesting provision in the bill. Like all Federal appropriations bills, it contains a number of provisions against Federal money being used for purposes of propaganda. In Bush's second term, there arose a constitutional conflict between the Congress--specifically the GAO--and the White House--specifically the OLC--over the production and distribution of video news releases--prepackaged news stories released to local television stations that contain a partisan slant, all without the audience being aware that the story is a hit job. In H.R. 1, not only are there multiple prohibitions against using money for propaganda purposes, but also Section 734:

Unless otherwise authorized by existing law, none of the funds provided in this Act or any other Act may be used by an executive branch agency to produce any prepackaged news story intended for broadcast or distribution in the United States, unless the story includes a clear notification within the text or audio of the prepackaged news story that the prepackaged news story was prepared or funded by that executive branch agency.

So what are the other provisions against propaganda designed to prevent?

For all the excitement generated over the use of the signing statement, Congresses prohibition got very little play, which is probably unexpected. Maybe when the president uses the signing statement to nullify the ban on using the signing statement will it get the press attention the Republicans hoped, which is probably expected.

Supreme Court and the Signing Statement

The Christian Science Monitor has reported an interesting separation of powers battle between the president and the Congress over who sets the foreign policy for the US, and it includes the possibility for the Supreme Court to speak directly on the legitimacy of the presidential signing statement, something the Court has rarely done.

The case at hand involves an American couple whose child was born in Jerusalem in 2002. American foreign policy has long kept us from taking sides in the dispute between Israel and Arab claims for Jerusalem, which has meant that an American born in the city has a birth certificate that simply records "Jerusalem" as the place of birth. This particular American couple, however, wanted the birth certificate to read "Jerusalem, Israel." When they went to the State Department to ask that the birth certificate reflect both the city and country of origin, the State Department balked. So the couple took their case to the Congress, which added a provision to the "Foreign Relations Authorization Act, FY 2003."

Specifically, Section 214--"United States Policy with Respect to Jerusalem as the Capital of Israel" subsection (d) reads: "Record of Place of Birth as Israel for Passport Purposes: For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jersalem, the Secretary shall, upon the request of the citizen or the citizen's legal guardian, record the place of birth as Israel."

But not so fast. The President has long asserted sole prerogative over foreign policy matters, with some blessing by the Supreme Court. Furthermore, there is a long lineage of challenges in presidential signing statements to attempts by the Congress to interfere with the president's power over foreign policy and national security. Furthermore, attempts by the Congress to recognize Jerusalem as part of Israel have consistently been challenged by presidents dating to President Clinton.

In this particular case, President Bush issued 21 separate challenges to the bill. And just to give you a sense of the difference between Bush and Obama with respect to the signing statement, here is a small taste:

The executive branch shall also construe provisions in the Act that mandate submission of information to the Congress or the public, such as sections 204, 215, 603, 613(b), 615 and 1602, in a manner consistent with the President's constitutional authority to withhold information the disclosure of which could impair the foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties. The Secretary of State will, of course, continue as a matter of comity to keep the Congress appropriately informed of the Nation's foreign affairs activities.

So there you have challenges both implicit and explicit, which as you can see makes it difficult to figure out all the things that are actually being challenged.

With respect to this issue, President Bush challenged Section 214 this way:

Section 214, concerning Jerusalem, impermissibly interferes with the President's constitutional authority to conduct the Nation's foreign affairs and to supervise the unitary executive branch. Moreover, the purported direction in section 214 would, if construed as mandatory rather than advisory, impermissibliy interfere with the President's constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states. U.S. policy regarding Jerusalem has not changed.

It will be interesting how the Supreme Court rules on this decision--the intent of Congress and the letter of the law or, like they did in the legislative veto case, a long history of presidential objection to congressional action that violated separation of powers.

Much Ado....

I am amused at the response to President Obama's signing statement to HR 11473--the bill that funded the government (and the DoD) through the remainder of the year. There are two responses out in the ether--the first, which has been typical to Obama signing statements, is that this violates his campaign promise not to use the signing statement "as an end run" around Congress. The second is that Obama is protecting "Czars" in his statement. Neither are true.

First, Obama makes three objections to the bill--and given the size of this bill, and all the things needed to cobble it together, three objections is not bad.

The first two objections--to Sections 1112 and 1113--involve tying the administration's hands in prosecuting detainees held at Gitmo. The fact that many of these individuals have been held for years without the chance of trial violates every ideal in which this country stands for, and is shameful. Section 1112 bars the use of funds "for the remainder of 2011" to bring Gitmo detainees to trial in the U.S. Section 1113 bars the administration from handing the detainees to another country for trial or prosecution unless certain conditions are met--apparently the fear is that transferring the detainees to another country (with less rigorous judicial proceedings than ours) will mean they get off completely free and return to the battlefield to fight Americans another day.

Now here is what the administration says it will do regarding these two provisions:

Despite my continued strong objection to these provisions, I have signed this Act because of the importance of avoiding a lapse in appropriations for the Federal Government, including our military activities, for the remainder of fiscal year 2011. Nevertheless, my Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.

Contrast this with a typical Bush signing statement. For instance, in the "Intelligence Authorization Act for FY 2003, Bush wrote:

The executive branch shall implement sections 325, 334, and 826 of the Act, and section 8H(g)(1)(A) of the Inspector General Act of 1978 as enacted by section 825 of the Act, relating to submission of recommendations to the Congress, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch.

There--nothing about working with Congress or nothing about mitigating their effect. All you have is a dismissal of the provision because it violates the constitutional ideal of the unitary executive branch. Given how Obama's first sentence is that he will work with Congress to repeal the provisions contradicts any notion of an "end run" around Congress, as suggested by Obama's critics, typified here and here.

The third challenge--to Section 2262--is drawn criticism in that it is Obama's attempt to protect "Czars." Section 2262 denies funds to pay for: 1) the Director of the White House Office of Health Reform, 2) Assistant to the President for Energy and Climate Change, 3) Senior Advisor to the Secretary of the Treasury assigned to the Presidential Task Force on the Auto Industry and Senior Counselor for Manufacturing Policy, and 4) White House Director of Urban Affairs. As James Risen notes in today's New York Times, "[A]ll of the positions affected by the budget bill are vacant or have been eliminated, and it is not clear whether the White House wanted to fill any of them."

But in Obama's signing statement, this section did draw the fiercest challenge:

Section 2262 of the Act would prohibit the use of funds for several positions that involve providing advice directly to the President. The President has well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority. The President also has the prerogative to obtain advice that will assist him in carrying out his constitutional responsibilities, and do so not only from executive branch officials and employees outside the White House, but also from advisers within it.
Legislative efforts that significantly impede the President's ability to exercise his supervisory and coordinating authorities or to obtain the views of the appropriate senior advisers violate the separation of powers by undermining the President's ability to exercise his constitutional responsibilities and take care that the laws be faithfully executed. Therefore, the executive branch will construe section 2262 not to abrogate these Presidential prerogatives.

As my friend Lou Fisher noted in an email today, it is ludicrous for Obama to make such a claim as the Executive Office of the President and all who staff it are created and funded by Congress. There is no "prerogative" in the Constitution protecting such advisers. But while there might not be language officially declaring a constitutional prerogative, there is enough political precedent that might. This area of protecting the "supervisory and deliberative" processes is one of the most often cited challenges in presidential signing statements. Congress has made numerous offerings to try and cut off who the president seeks advice from, and have rarely been successful. There is the recognition that dates to FDR that the president should be allowed unfettered advice without congressional interference, and there is the consistent defense that would make a judicial challenge by the Congress tenuous at best.

It is clear that this provision is all about politics--Members can go back to their districts and proclaim their success at ending the attempts by Obama at burdening the taxpayer with "Obamacare", climate change, and the "bailout" of automakers, even though this provision will do absolutely nothing of the sort.

The News Dump as Signing Statement

There has been a flurry of activity regarding President Obama's displeasure with the military authorization bill for 2011 that was presented to him less than a month ago. Titled the "Ike Skelton National Defense Authorization Act for FY 2011," the bill provided much needed funding to our troops who are currently fighting two wars. When Congress has something that valuable in its hands, it cannot resist the temptation to load it down with items that are meant to politically "box in" the president. For example, just over 15 years ago the Republicans in Congress took advantage of a similar bill to force HIV-positive military personnel out of the armed forces. This was added just as Clinton was gearing up for his re-election, and it was meant to force him to make a hard choice between keeping our military strong vs. caving into an important political constituency (the homosexual lobby).

In the current bill, three sections were added that limit Obama's handling of individuals held at Gitmo (1032-1034). Section 1032 prohibits the use of funds to try detainees, especially Khalid Sheikh Mohammed, in the United States. The section notes that the prohibition seems to apply only to those "held on or after January 20, 2009..." Wonder why that date and not all held since the start of the Global War on Terror? Section 1033 requires the administration to obtain the blessing of Congress before it transfers any prisoner at Gitmo to any foreign country or entity, and Section 1034 prohibits the use of funds to build prisons in the US to house those individuals detained at Gitmo.

It is clear that the provisions are aimed at denying Obama a promise made on the campaign trail in 2008--to close down the Gitmo facility. Are the Republicans in Congress really saying that the prisons in the United States are inadequate to detain violent individuals?

These provisions are certainly the kind of triggers that lead to a constitutional challenge in a signing statement. The Obama administration issued a "trial balloon" leak earlier this week to test the reaction to a constitutional signing statement. On January 4, the investigative reporting organization Pro Publica reported that the administration had "disclosed" that they were considering a signing statement to challenge the bill's objectionable provisions. That set off a flurry of media activity reporting on whether a signing statement would or would not come. All week long everyone waiting (well I certainly have been), and lo and behold on Friday afternoon (a Friday News Dump) the administration finally put all the waiting to rest with a signing statement to the bill.

In the "Statement by the President on H.R. 6523," President Obama dispensed with the formalities found in most signing statements (taking time to describe what the bill does) and went right to the objectionable provisions. Obama writes:

Section 1032 bars the use of funds authorized to be appropriated by this Act for fiscal year 2011 to transfer Guantanamo detainees into the United States, and section 1033 bars the use of certain funds to transfer detainees to the custody or effective control of foreign countries unless specified conditions are met. Section 1032 represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests. The prosecution of terrorists in Federal court is a powerful tool in our efforts to protect the Nation and must be among the options available to us. Any attempt to deprive the executive branch of that tool undermines our Nation's counterterrorism efforts and has the potential to harm our national security.

With respect to section 1033, the restrictions on the transfer of detainees to the custody or effective control of foreign countries interfere with the authority of the executive branch to make important and consequential foreign policy and national security determinations regarding whether and under what circumstances such transfers should occur in the context of an ongoing armed conflict. We must have the ability to act swiftly and to have broad flexibility in conducting our negotiations with foreign countries. The executive branch has sought and obtained from countries that are prospective recipients of Guantanamo detainees assurances that they will take or have taken measures reasonably designed to be effective in preventing, or ensuring against, returned detainees taking action to threaten the United States or engage in terrorist activities. Consistent with existing statutes, the executive branch has kept the Congress informed about these assurances and notified the Congress prior to transfers. Requiring the executive branch to certify to additional conditions would hinder the conduct of delicate negotiations with foreign countries and therefore the effort to conclude detainee transfers in accord with our national security.

Now the language clearly is not as aggressive as what we should expect in a constitutional challenge. Normally the president would write that he was "construing" the provisions in a way that negates their constitutional problems. But despite the tame language, we should not fool ourselves into believing that the president was not challenging the defective provisions.

How do we know? Well in the last paragraph, Obama writes that not only will he work with the Congress to repeal the defective provisions, but will also "seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future." The key is "mitigate". That should be taken as a challenge--mitigate can mean using other funds to carry out transfers or trials, it can mean a lawsuit to challenge the provisions which the administration won't defend, and it can mean (though probably unlikely in this case) a refusal to enforce. It certainly merits watching the administration closely to see how it makes its next move.

There is also one more thing to note about this constitutional signing statement. And that involves the administration's continuing attempts to obscure the challenge. Given the attention paid to what the president would do with this bill, one would think that the signing statement would appear under the "Featured Legislation" section of the White House webpage. As of this moment (1/7/11 @ 6:45 p.m.) the "featured legislation" is a bill the President signed on Tuesday. If you go ahead and click the "Featured Legislation" link, it lists the bill by its formal name, but clicking on it takes you to the text of the bill itself. Instead, if you scroll down to the bottom of the webpage, under "Statements & Releases," the very first link is the constitutional signing statement, though the link reads: "Statement by the President on H.R. 6523," and not by its formal name, the "Ike Skelton National Defense Authorization Act for Fiscal Year 2011." It continues to leave me scratching my head that the administration separates the constitutional signing statement from the "Featured Legislation" section of the webpage. Say what you will about the previous administration, at least they kept all their signing statements in one place.