Friday, December 30, 2011

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.