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.
