Ya Can't Come In (Ya Can Come In)

President Obama has done something with his signing statements that we have not seen in previous presidents--or at least we have not seen  as consistently.  President Obama has made a habit of referring to the signing statements of his predecessors in order to justify his arguments in his own signing statements--and in particular, the signing statements of his Republican predecessors

Case in point.  On Friday, President Obama dumped a signing statement to S.2195, which  amended Section 407 of the Foreign Relations Authorization Acts of 1990 and 1991 (they were combined after a contentious series of moves and counter-moves, leading to the veto of the Foreign Relations Authorization Act of 1990 by President Bush. The debate extended to the point that President Bush and Congress were forced to combine two years of appropriations into one piece of legislation).

In President Bush's signing of the Act (HR 3792), he challenged, at a minimum, 12 different parts of the bill.  I say minimum, because in a couple of sections of the bill, President Bush does not tell us what he is specifically challenging.  For instance, in his signing statement, President Bush states: "A number of other provisions might be construed to require the executive branch to contact foreign governments and espouse certain substantive positions regarding specific issues."  How is that for specificity?

In this particular instance, the Congress has decided to amend Section 407 of the law. To provide context, we need to go back to the end of the Cold War, the situation in Iraq & Kuwait, and the general tension in the Middle East.  Yasir Arafat wanted to take the PLO mainstream in order to be a player in the peace process.  Part of this conversion involved delivering a speech to the UN, which the US Congress opposed (in part because of the strength of the Israeli Lobby in the US).  As a result, Congress added a section to HR 3792 which stipulated:

The President shall use his authority, including the authorities contained in section 6 of the United Nations Headquarters Agreement Act (PL 80-357), to deny any individual's admission to the United States as a representative to the United Nations if the President determines that such individual has been found to have been engaged in espionage activities directed against the United States or its allies and may pose a threat to United States national security interests.

Even though the Act contained a waiver, President Bush nonetheless stated in his signing statement:

Section 407 of the Act is similarly subject to inappropriate interpretation. This section purports to require that no individual may be admitted to the United States as a representative to the United Nations if the individual" has been found to have been engaged in espionage activities directed against the United States or its allies and may pose a threat to United States national security interests." In effect, this provision could constrain the exercise of my exclusive constitutional authority to receive within the United States certain foreign ambassadors to the United Nations. While espionage directed against the United States and its allies is a problem of the utmost gravity, curtailing by statute my constitutional discretion to receive or reject ambassadors is neither a permissible nor a practical solution. I therefore shall construe section 407 to be advisory.

In fact, President Bush kicked off the signing statement by declaring:

The Constitution vests in the President the executive power of the United States. The executive power includes, among other things, the authority to receive and appoint ambassadors and to conduct negotiations on behalf of the United States with foreign governments.  Thus, pursuant to the Constitution, the President is entrusted with control over the conduct of diplomacy. The content, timing, and duration of negotiations with foreign governments are also within the President's control.  Unfortunately, many provisions of this Act could be read to violate these fundamental constitutional principles by using legislation to direct, in various ways, the conduct of negotiations with foreign nations.

So fast forward 23 years, and instead of it being the PLO, it is the Iranians.  Nonetheless, the issue is the same: terrorism and the Middle East.  The Iranians have chosen a new ambassador to the United Nations, who also is connected with the group of Iranians who stormed the US Embassy in Tehran in 1979 and held 52 Americans hostage for 444 days.  The new Ambassador, Hamimd Aboutalebi, has declared that his involvement in the controversy was limited to providing translation and negotiation services.  It does not really matter given that this issue, like the PLO in 1990, is tied more to American domestic politics rather than whether he was or was not directly involved in the hostage crisis.  What is clear is that Aboutalebi is a far more removed figure from terrorism than Yasir Arafat.  But like I said, terrorism and Middle East politics are secondary to the central issue--the 2014 mid term elections. And possibly even the 2016 presidential elections.  I say that because leading the way on this issue has been Senator Ted Cruz (R. TX), current media darling AND constant headliner on 2016 discussions.

So the Congress pushed this issue ostensibly to protect national security, though it is uncertain how denying a diplomat entry into the US because of tenuous ties to a controversial issue 40 years ago is protecting the national security of the US, but OK.  So President Obama was boxed into signing the legislation, and as a way to take some of the sting off of the signing, he 1) signed it late in the day, Good Friday afternoon, and 2) he fought the Congress's bipartisan measure with some bipartisan fire of his own by referring to George H.W. Bush's signing statement from 1990.

Obama wrote:

Today I have signed into law S. 2195, an Act concerning visa limitations for certain representatives to the United Nations.  S. 2195 amends section 407 of the Foreign Relations Authorization Act, Fiscal Years 1990 and 1991, to provide that no individual may be admitted to the United States as a representative to the United Nations, if that individual has been found to have been engaged in espionage or terrorist activity directed against the United States or its allies, and if that individual may pose a threat to United States national security interests.  As President Bush observed in signing the Foreign Relations Authorization Act, Fiscal Years 1990 and 1991, this provision "could constrain the exercise of my exclusive constitutional authority to receive within the United States certain foreign ambassadors to the United Nations." (Public Papers of the President, George Bush, Vol. I, 1990, page 240).  Acts of espionage and terrorism against the United States and our allies are unquestionably problems of the utmost gravity, and I share the Congress's concern that individuals who have engaged in such activity may use the cover of diplomacy to gain access to our Nation.  Nevertheless, as President Bush also observed, "curtailing by statute my constitutional discretion to receive or reject ambassadors is neither a permissible nor a practical solution."  I shall therefore continue to treat section 407, as originally enacted and as amended by S. 2195, as advisory in circumstances in which it would interfere with the exercise of this discretion.

So there you have it.  President Obama issued a signing statement to not only challenge the original law, but also to protect the current prerogatives of his office by treating the offending provisions as "advisory" and "discretionary".

Some ask: Given that the original law and the current law contain a section that allows the president to waive the offending passage should reason warrant it (and so long as he informs the Congress of the waiver), why the need to challenge the legislation? And the answer to this is that the president does not believe he needs to explain a waiver to the Congress.  Instead, though he was given a waiver, the president believes that the Constitution gives him sole jurisdiction over matters of foreign policy, and every other prerogative executive in nature--not the Congress.  Therefore any legislation that impacts negatively on the president's powers--past, present, and future--must be defended, even if, in the end, the President decides to consult the Congress on his waivers.

Unilateralism 101

A July 1998 “New York Times” article described the frustration inside the Clinton administration with the persistent gridlock in Congress. To get around the gridlock, the Clinton administration planned to use executive orders to accomplish their political goals.  Presidential advisor Paul Begala summed it this way: “Stroke of the pen. Law of the land. Kind of cool.”

In Tuesday night’s State of the Union address, President Obama told Americans: “…you don't have to wait for Congress to act.” He then explained areas where he could act without the support of the Congress: from raising the minimum wage for some employees of government contractors, to fixing problems in the economy and in our crumbling infrastructure by slashing the bureaucracy.  Even before the address, media were already highlighting President Obama’s promise to govern alone.

As the Begala quote above demonstrates, there is a great deal of promise for a president to forget for a moment of our system of “separate institutions sharing power”, and instead act alone. Presidents since Washington have, from time to time, acted without the consent or blessing of the Congress.  But it has been the presidency of the last 40 years that has made it a staple of governing.  The question is why?  There are two answers to that question.

First, the political polarization in our system makes it difficult, even where the President’s party controls the Congress, to things done.  President George W. Bush enjoyed (mostly) unified party government, along with very high public approval numbers through most of his first term, yet he used the bill signing statement to void more provisions of laws than all previous presidents combined.

Second, the president engages in unilateral behavior more in his second term because he knows, along with the opposition, that his days are limited. The political system begins the process of looking towards the next presidency, and the opposition in Congress digs in its heels to prevent giving the president, and his party, anything that may help in the next presidential election. 

As is often the case when the president decides to govern alone, the critics claim that presidential unilateralism violates the Constitution.  Senator John McCain (R. AZ), after Tuesday’s State of the Union Address, appeared before television cameras and proclaimed President Obama “violated the intent of the Constitution” while Senator Ted Cruz (R.TX) used words such as “executive fiat” and “persistent pattern of lawlessness” to describe Obama’s promise to engage in unilateralism. While partisans on the opposite side of the president claim any unilateral action violates the Constitution, the fact remains that the Constitution gives the president a great deal of room to act alone.  The language of Article II is written with less specificity than Article I, and thus encourages the president to push and expand the boundaries of his constitutional powers.

The president has a diverse set of devices to help him work alone.  Among the more significant:

·      Executive agreements—Presidents make agreements with foreign countries that have the force of law.  The benefit to using an executive agreement is they get around the Senate ratification process.  Even though the Senate has ratified most treaties, the process is cumbersome, lengthy, and has the potential to embarrass the president if the treaty fails.  Thus modern presidents have utilized the executive agreement in preference to the treaty, and President Obama has been more likely than his predecessors to use an executive agreement instead of a treaty.

·      Presidential proclamations—Most people think of the proclamation as largely ceremonial, such as the “Religious Freedom Day” Proclamation.  But some proclamations can be substantive, such as President Bill Clinton’s proclamations claiming public land. Those proclamations, issued in his final days in office, set aside millions of acres of land as “protected” from developers, loggers, and energy industries.

·      Presidential memoranda—these are circulated throughout the Executive Branch to direct or explain a presidential policy or position. But because they are directing bureaucratic decisions, they have the effect of policy.  Presidents have used memoranda to lift or secure rules involving abortions or information related to abortion. In fact, President Obama recently used the memoranda to deal with the issue of guns and gun-related violence after legislation failed in the Congress.    

·      Signing statements—The use of the presidential signing statement dates to the Monroe administration.  But the systematic use of the signing statement to act as a type of item veto or to put the president’s spin on the law dates to the Reagan administration.  Recent presidents have used the signing statement to prevent Members of Congress from serving on executive branch committees, to protect military service personnel who tested HIV positive, to limit protections for whistleblowers, and to refuse to share information with congressional committees.

·      Executive orders—Executive orders date to the Washington administration.  These orders are used to direct or instruct bureaucrats to either take a course of action or cease taking an action.  Presidents have used executive orders to get around a recalcitrant Congress. For instance, President Truman’s desegregation of the United States military in 1948 or George W. Bush’s order creating the Office of Faith Based Initiatives after the Congress refused to consider it for a cabinet level position. Bill Clinton used an executive order to wage war in Kosovo.

While these unilateral devices give the president a great deal of leeway to act, they do have some limitations.  First, they are not as sound as legislation and may have a greater likelihood of being overturned by the Supreme Court. For instance, when President Bush used an executive order to create military tribunals, the Supreme Court found it violated the Constitution.  Second, the unilateral actions work best when they do not attract the notice of the Congress, the media, and the public.  When they do get noticed, the political push back can render them ineffective. For instance, President Obama has issued a signing statement in every national defense authorization bill he has signed challenging provisions forbidding him to close the Gitmo detention facility.  Even though he has refused to recognize the provision as constitutional, the facility has remained open. And third, all of these unilateral devices have no guarantees they will last past the term of the presidency.  Unlike legislation, which would require congressional action, the incoming president can, with the stroke of the pen, undo the unilateral actions.  For instance, Presidents Reagan and Bush used memoranda announcing restrictions on the use of federal money to international family planning agencies where abortions were concerned. President Clinton issued a memorandum after taking office removing the restrictions. President George W. Bush issued a memorandum soon after taking office reinstituting the restrictions, and then President Obama issued a memorandum removing the restrictions. 

It is clear that as the days draw to a close on the Obama administration, there are two things that will happen: First, Obama’s frustration with Congress coupled with his dwindling days in office will force him to rely more and more on unilateralism.  Second, whoever wins the presidency in 2016, Democrat or Republican, one thing is for certain—that person will discover a powerful set of unilateral devices at his or her disposal, and will be under great pressure to use them.