The Obama Signing Statement--More of the Same

As I promised in my last post regarding Obama's position on signing statements, there would be a constitutional signing statement in the immediate future. Two days later (today, 3/11), Obama issued his first constitutional signing statement. First, a couple of words:

• A constitutional signing statement is defined as any signing statement that contains one or more provisions that challenge the constitutionality of a section(s) of the law, or where the president needs to define or "interpret" a section(s) of the law.
• For all of his candidate Obama's talk of transparency, their website is anything but. The Bush administration placed all of their signing statements on the "News" section of the White House webpage, listed day to day. In fact, toward the end, they were pretty good about putting the signing statement on the White House webpage and not in the "Weekly Compilation of Presidential Documents," where you would normally find signing statements. The current signing statement, taken from the "Boston Globe," who was good enough to provide a .pdf copy, says it came from the Office of the Press Secretary, yet every link on the White House webpage to the press secretary or any official statements do not contain a link to the signing statement. To me, that is not transparency.

Now, the signing statement. The signing statement is the spending bill that is getting attacked tonight on the national news because it contained earmarks, going against Obama's promise to combat "wasteful" earmarks (Jake Tapper: "...contained 9,000 earmarks despite his promise not to sign anything with earmarks" Then, cut to John McCain. Then at the end, mention that 40% of the earmarks come from Republicans.).

Officially, it is H.R. 1105, the "Omnibus Appropriations Act, 2009," and it has $410 billion in spending. And Obama breaks precedent with previous signing statements by not just drawing attention to the constitutional challenges, but also placing them up and front in lieu of 1) a description of the bill and 2) all the good things that it does.

Obama writes:

As I announced this past Monday, it is a legitimate constitutional function, and one that promotes the value of transparency, to indicate when a bill that is presented for Presidential signature includes provisions that are subject to
well-founded constitutional objections. The Department of Justice has advised that a small number of provisions of the bill raise constitutional concerns.

He then bulletpoints the challenges:

1) Foreign Affairs--he singles out 3 provisions that "unduly interfere with my constitutional authority in the area of foreign affairs" because they purport to tell him how he should proceed with negotiations with international organizations and foreign governments.
His response: He does not take them to mean he is limited in how he negotiates with any foreign body.
Effect? Congress can tell him "til the cows come home" what he should or should not do vis a vis foreigners, but at the end of the day, he will do what he wants.

2) United Nations Peacekeeping Missions--this one was a favorite of the Republican Congress when Clinton was in office. To make sure that our forces are never under the direction of a foreign body, the Congress places boilerplate language instructing the president that he cannot send armed forces to international organizations if they are likely to receive orders from these organizations. In this bill, Section 7050 of Division H forbids the president from doing just this.
His Response: Since this bill seems to constrain his Commander in Chief power as well as interfere with international agreements, he is left with rectifying the provision so it does not conflict with those two things.
Effect: It remains to be seen how this gets carried out because it is not clear what Obama claims he will do. Rather than saying: "I won't execute this provision" or "I won't execute this provision until Congress corrects it," Obama says this: "I will apply this provision consistent with my constitutional authority and responsibilities." I will leave you to divine the meaning.

3) Interference with the control of information. This is an automatic challenge of each president since Reagan. Congress consistently attempts to force executive branch agencies to provide information about how it is carrying out the law, and each president since Reagan wants all interbranch communication to be funneled in and out of the White House. In fact, this is a central tenet of the unitary executive theory (and reason to believe it is alive and well). Obama finds two provisions defective: Sections 714(1) and 714(2) in Division D of the bill. They prohibit the use of "appropriations to pay the salary of any Federal officer or employee who interferes with or prohibits certain communications between Federal employees and Members of Congress." This is Congress's response to the unitary executive control over inferior executive officers. Congress has constitutional authority over appropriations, thus can say anyone receiving federal money cannot issue orders to bureaucrats telling them they cannot speak directly with Congress.
His Response: Despite what Congress says about its constitutional authority over appropriations, he is still the head of the executive branch, accountable for the actions of all inferior executive officers. Furthermore, some information is sensitive and needs to be approved before it is released. Hence:

"I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees' communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential."

In other words, to all executive branch employees, regardless of what the Congress demands, you are not to act until you have the approval of a representative from the White House (OMB).

4) Legislative Aggrandizements (committee approval, or "legislative vetoes"): In 1983, the Supreme Court found the legislative veto a violation of Bicameralism and the Presentments clause of the Constitution. What it does is condition the execution of the law upon post-enactment approval of a committee in Congress. Despite the Supreme Court decision, it has not stopped the Congress from using them AND from presidents objecting to them. This challenge seems to me to stand in clear violation of his promise in the memo to list the precise provisions under challenge. Instead, Obama starts: "Numerous provisions of the legislation purport to condition the authority of officers to spend or reallocate funds on the approval of congressional committees." Numerous provisions? In other words, do the work yourself--go through the bill and isolate any provision that seems to list a legislative veto. I thought we were done with this, and instead, were going to be given the specific location of the objection? Guess not. But wait, there is more. In addition to the "numerous provisions" listing, he also makes note of two extra provisions as problematic. He notes that "one other provision" allows congressional committees to establish guidelines for costs associated with security improvements in government buildings. And then, "Yet another provision" forces the Secretary of the Treasury to abide by the demands of a board that contains members of Congress or their staff. This is a different problem. This is a "hybrid" commission, meaning it mixes the executive and legislative functions (in this case).

His response: As to the "numerous provisions" complaint, Obama promises to try to inform Congress of the actions its going to take in advance, but in the end, the decision is his, not a committee of Congress. With respect to the provision that allows Congress to establish spending limit guidelines, Obama treats these as advisory. Sure, we will take it under consideration, but in the end, the decision is his. And then the "hybrid commission" problem, he will treat it as nonbinding. Let them recommend all they want, but it no one should take them seriously.


5) Recommendations violation--These also show up a lot in signing statements. Congress tries to tell executive branch agents what sorts of recommendations they need to make in future requests for money. Because the president may recommend legislation himself, this is seen as a violation of presidential prerogatives. Obama once again continues the practice of challenging such violations, and continues an irritating practice from his predecessors (and one that also violates his pledge of clarity). The problem with this challenge is similar to the legislative veto challenge from above. Instead, what he writes is that "Several provisions of the Act (including sections 211 and 224(b) of title II of Division I, and section 713 in Division A)" requires him or his agents to submit budget requests in specific forms to Congress. If you are going to the trouble of listing some of the problems, why not list them all? If you pledged to improve over your predecessor, then why not do just that? Instead it is left up to all of us to try to figure out what else is in violation. In the past when I have found language like this, quite often there are no other provisions than the ones listed. Thus you burn a lot of time chasing a ghost.
His response: Because the Constitution gives him the power to recommend, these provisions are "precatory" or merely advisory (precatory was a favorite of Clinton--most others preferred its cousin, hortatory).

And you may not have heard much about the signing statement on the nightly news, and before you jump to conclusions of liberal collusion, let me offer two alternatives. First, many covered the signing statement. But it was the public signing ceremony, which was dramatically different from the private written ceremony. Why the two? To confuse those who don't pay much attention to these things (like the press and Congress). It is another version of being distracted by one hand while the other hand robs you. And second, this constitutional signing statement did get a lot of coverage, but mostly in the printed press, like the Boston Globe. As of this moment, Google News shows over 3,200 articles on the bill signing, ranging from the traditional news to specialty publications to blogs. That is a lot of attention.

In conclusion, Obama did not disappoint. Like "Wild Bill" Hickock, in the HBO series "Deadwood" told a woman whose husband had been murdered by road agents, "Listen to the Thunder." The memo of two days ago being the thunder preceding the signing statement. What is disappointing however is the continuing practice of not being concise regarding the specific provisions under challenge, leaving in its place the general phrasing: "numerous provisions." We were told to expect better. I at least took him for his word.

What To Make Of This

How many have been following the recent Supreme Court case "District of Columbia v Heller"? It has generated a lot of attention mostly because it is a Second Amendment issue, and anytime the Second Amendment is the subject of attention, it brings the extremists out of the woodwork--and that is both sides of the issue.

The Second Amendment has been an issue that the Supreme Court has shied away from, both in dealing with it sparingly, but also not "incorporating" it as a right applied to all governmental entities in the US--national, state, and local.

What interests me about this case has nothing to do with either of those two things above. What interests me is the number of amicus briefs that have been filed in this particular case. Amicus briefs, or "friend of the court" briefs, are legal briefs submitted to a court by individuals or organizations (political and otherwise) who are not a party to the case (so called "merit" briefs). In essence, these briefs attempt to influence the final decision of the court by demonstrating a larger interest to the case. Interest groups have employed an amicus strategy as an attempt to influence judicial decisions on policy or constitutional matters of central concern to the interest and its membership. Recent scholarship on this interest group strategy has demonstrated a causal relationship, where judges will cite these briefs when rendering their decisions. In the affirmative action case involving the University of Michigan several years ago, there were 107 separate briefs filed with the Supreme Court, with many finding their way into the various opinions of the Court.

And for this particular decision, there are over 60 separate amicus briefs on file for Court consideration sometime later in this term (oral arguments commence tomorrow). The case, for those who are unaware, involves a variety of DC ordinances that ban the possession of handguns or rifles unless you own a permit, which generally is considered an ordinance that allows only the military, police, and security guards this right--in particular, DC Code, section 7-2505.01(a) which prohibits anyone from possessing an unregistered firearm within the District; DC Code section 7-2502.02(a)(4) which went into effect in 1976, and bars the registration of any pistol by a private citizen; DC Code section 22-4505, which forbids carrying a pistol without a license; and finally DC Code section 7-2507.02, which requires all lawfully owned firearms to be kept unloaded and disassembled, and under lock and key at the persons residence--it may be kept intact if it is kept at a place of business. These laws in question have been on the books for 30 years, and was recently ruled invalid by the (conservative) DC circuit court of appeals.

As you pan the list of friends who filed either in support of DC or in support of the respondent, who sued to invalidate the ban (by far my favorite brief is from the "Jews for the Preservation of Firearms Ownership in Support of Respondent"), a couple of names should jump right out at you. But that is if you look very carefully because one of the names has been obscured by job title.

For the District of Columbia is the United States, represented of course by Solicitor General Paul D. Clement. The solicitor general is second in command at the US Department of Justice. It is the solicitor's job to argue cases involving the government before the Supreme Court (and any lower court, if he or she so chooses). The solicitor is often described as the "10th Justice of the Supreme Court," because if he or she asks the Supreme Court to hear a case, the Supreme Court will oblige.

The solicitor general more generally supports the overall conclusion of the DC circuit that the Second Amendment is guaranteed to individuals, but disagrees with their reasoning that the Amendment "categorically precludes any ban on a category of 'Arms' that can be traced back to the the Founding era. If adopted by this Court, such an analysis could cast doubt on the constitutionality of existing federal legislation prohibiting the possession of certain firearms, including machineguns." The solicitor general urges the Supreme Court to "remand" the case to the lower court so that it could flesh out the exceptions to the Second Amendment right.

Filing on behalf of the respondent are "55 Members of the United States Senate, the President of the United States Senate, and 250 Members of the United States House of Representatives." There is also a brief filed by "Members of Congress" supporting the DC ordinance, and from what I can tell it consists of all Democrats. The brief on behalf of "55 Members'" includes, of course, President of the Senate, Dick Cheney. The President of the Senate is also the vice president of the United States, who has signed on to a brief that runs counter to the brief filed by the Department of Justice.

It seems clear to me this strategy implicates the unitary executive. The unitary executive, at its core, supports a unified executive branch in message and action from top down. So the vice president breaking from the official line might lead some to cast doubt on just how firm a grip the unitarians have over the executive branch.

But looked at another way, one could argue that this move supports the hold of the unitarians--VP Cheney was told that this is the official position of the executive branch. If he wished to dissent, he could not do so from the Office of the Vice President. Instead, he would need to use his other official title--President of the Senate--to make his statement. Similar, of course, to the two elections where he had to stand against homosexuality as an abomination and a threat to tradition values as the VP candidate, but also to stand in support of it as a father of a lesbian.

This particular twist has received surprisingly little play in the press, and so far is a no show during the press gaggle between the press secretary and the press corps. But then again, there are more important things afoot--Elliot Spitzer and Barack Obama's minister come immediately to mind.

Distorting the Unitary Executive and Other Stuff

Tim Rutten, a columnist at the "Los Angeles Times" writes today about the unitary executive, the signing statement, and John McCain. In it, he makes a potentially interesting observation all the while distorting the theory.

First, the observation. He uses as a backdrop the hearings this week involving torture and waterboarding as well as President Bush and Lord Vader's visit to CPAC, the annual meeting of the Rabid Right--the very meeting where people wept when a faux conservative announced he would drop out of the running for the presidency and booed when the consistent conservative and life long Republican /presidential nominee took the stage.




Vader used colorful language to put his stamp on the righteousness of this administration.

Rutten argues that the administration, with its actions up to the end, is putting McCain on notice: "...if he wants help in patching things up with the conservative base, he'd better pay deference to an obscure legal theory called the 'unitary executive." This would be an interesting quid pro quo if it were true. The administration, and its allies, coming to McCain, and making a deal with McCain: "You both keep quiet about the bodies buried all over the White House and you agree to take on the refugees from 'Lawyers for Romney' and we will sell you to the base." For McCain to suddenly throw open his arms and embrace the unitary executive and all of its tenets would take a 180 from where he stands now. McCain, for instance, has been the only major contender for the presidency to openly eschew the type of power exercised by contemporary presidents. For instance, back in November 2007, McCain told a Rotary Club that he would "never issue a signing statement" when confronted with a bill that has problematic provisions. So I am not sure if Rutten has learned something or is just making a political guess.

Now the problems. First, I am betting that most people who are average followers of politics can tell you that they have heard of the signing statement. I wonder when we can drop the "obscure" adjective when talking about? Rutten continues to obscure what the unitary executive stands for. He writes:

Whether they're liberals or conservatives, most constitutional scholars don't think the unitary executive notion holds historical or legal water. Essentially, it proposes that the Constitution invests sole executive authority in the president and, therefore, neither the legislative nor the judicial branch can check his exercise of executive power, particularly when it comes to his activities as commander in chief.

He can throw all the "most constitutional scholars" he wants. It does not do anything to counter the fact that the unitary executive has become an ingrained practice inside the executive branch. Next, the unitarians--at least true unitarians--do not believe that "the legislative nor the judicial branch can check...executive power." Nothing could be further from the truth. They start from the premise that all the branches of government are vigorously pushing their own power, and a president must be ever vigilant to make sure that the power of the presidency is not diminished. What a president objects to is the mixing of power--creating "hybrid commissions" that mix the legislative and executive powers. That is very much a different thing. It certainly has been the case that the Bush administration has made constitutionally questionable claims about executive power couched in unitarian terms. But the administration getting the theory wrong is the fault of the administration--not the theory or those who are proponents thereof.

Later, Rutten says this about the signing statement:

Since taking office, Bush has made extraordinary use of the executive "signing statement." This allows a president to sign a bill but to attach a statement saying -- essentially -- that he intends to enforce it in a particular way. Bush has attached about 800 of these statements to legislation he has signed, and, in close to 200 instances, he has explicitly indicated that he intends to enforce a new law only insofar as it does not conflict with the unitary executive theory.

And he says this:

One of those signing statements was attached to McCain's Detainee Treatment Act of 2005, which passed the Senate 90 to 9 and explicitly outlawed waterboarding. Bush signed it, but he wrote that it would be enforced "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief."

To the first. Bush has made many more challenges than 800. My guess is that Rutten bookmarked this October 2006 article by Charlie Savage that lists Bush's challenges at 800. Wouldn't you think to check and see if Bush has made any more challenges? I don't fault Rutten entirely since many reporters and members of Congress continue to use outdated figures. Next, he makes a big deal that nearly "200 instances" have seen the use of the "unitary executive" to justify the statement. OK, but what do we make of Bush's most recent signing statement where he said this:

Provisions of the Act, including sections 841, 846, 1079, and 1222, purport to impose requirements that could inhibit the President's ability to carry out his constitutional obligations to take care that the laws be faithfully executed, to protect national security, to supervise the executive branch, and to execute his authority as Commander in Chief. The executive branch shall construe such provisions in a manner consistent with the constitutional authority of the President.

Not one mention of the "unitary executive," yet this would be the perfect place for it. Why has he dropped it? What does it mean that it is not referenced? The unitary executive theory does not apply in this case?

In the second highlighted passage, Rutten refers to the DTA of 2005, which gave the signing statement and the unitary executive theory a lot of play. Bush backs away from his stance on torture after McCain refuses to stand down, and then he issues a signing statement that takes back what he said. Given the amount of attention this received, did Bush go ahead and green light torture in the years 2006 and 2007? Don't think so. So should we continue to give mileage to a statement without action? Can't we say the system worked? Bush took a stand and was smacked down by the Congress, the press, and the public. This should be treated as a highpoint for our constitutional system and not as the end of it.

I have written Rutten with my concerns and questions. If he responds, I will let you know.

Confoundment!

President Bush issued the 158th signing statement on Monday (28th) on the down lo (or what other commentators describe as "quietly" issued the statement). He seemed to have issued it when everyone else was focusing on his final State of the Union Address. I have to admit myself that I look at his activities every day and I did not catch it until today when the New York Times issued an editorial challenging Bush's use of the device. The Times notes that "Mr. Bush has issued hundreds of these insidious documents declaring that he had no intention of obeying a law that he had just signed." Actually what Bush has issued "hundreds" of is challenges contained within the signing statement document. To be precise, by my record, the four challenges that came in this signing statement bring the total number of challenges to 1,167--a record to be sure. And for my money, this statement continues to show timidity in the face of a Congress controlled by the opposition. Here is the substance of the signing statement:

Provisions of the Act, including sections 841, 846, 1079, and 1222, purport to impose requirements that could inhibit the President's ability to carry out his constitutional obligations to take care that the laws be faithfully executed, to protect national security, to supervise the executive branch, and to execute his authority as Commander in Chief. The executive branch shall construe such provisions in a manner consistent with the constitutional authority of the President.

The best we can say is that he challenged at least four provisions since he lists them. However, that sentence begins: "Provisions of the Act" and then includes the four provisions. It could very well mean that he has much more in mind, but is holding that close to his vest.

So, the sections themselves:

Section 841 creates a "Commission on Wartime Contracting" whose eight members are appointed by the House, the Senate, and the President, and requires that the Committee investigate private companies, such as Blackwater, who have contracts in Afghanistan and Iraq. This section gives the Commission the authority to obtain information from executive branch entities such as the Department of Defense, ordering that the "head of such department or agency shall furnish such information expeditiously to the Commission." You can imagine how the term "expeditiously" went over with such scrutinizers as David Addington.

It is my guess that President Bush's objections here involve the "supervision" of the executive branch, given that a Commission is formed with "hybrid" functions. This has long been a gripe of presidents--Commissions that allow appointments from other people than the president, who has the appointment power. In a 1989 OLC Opinion, William Barr, serving as the head of the Office of Legal Counsel, outlined "ten types of legislative encroachments into the prerogatives of the president." Number 1 was "Interference with the appointment power," where "Congress...seeks inroads into the president's prerogative of the appointment. Congress will set up commissions and give the commissioners executive power. The president must diligently use the signing statement to note that his appointees serve in an advisory or ceremonial fashion. Number 2--the creation of "Hybrid Commission" which involves "Congress creating commissions that contain members of the legislative and the executive branch, and often the numbers are tilted in favor of the Congress. (Barr, William P. "Common Legislative Encroachments on Executive Branch Constitutional Authority." 13 Op. O.L.C. 299, July 27, 1989.)" In the case of the Wartime Commission, Congress gets six appointees and the president gets two.

Section 846--The section, titled "Protections for Contractor Employees from Reprisal for Disclosure of Certain Information" gives protections to whistleblowers who come forward to:

• A Member of Congress
• A representative of a committee of Congress
• An Inspector General
• A GAO officer
• A DOD employee responsible for contract oversight or management

with information "that the employee reasonably believes is evidence of gross mismanagement of a DOD contract or grant, a gross waste of DOD funds, a substantial and specific danger to public health or safety, or a violation of law related to a DOD contract (including the competition for or negotiation of a contract) or grant."

The administration has been consistent in battling provisions that encourage people to come forward and blow the whistle. In my paper, Rethinking Presidential Power: The Unitary Executive and the Bush Administration, I document the effort the administration made to destroy the whistleblower protection in the Sarbanes-Oxley law.

Section 1079--This section requires any executive branch intelligence organization to turn over "any existing intelligence assessment, report, estimate, or legal opinion" requested by or relating to the jurisdiction of the Armed Services Committees in the House and Senate. If the president does not wish to comply, this section mandates that "White House Counsel shall submit to Congress" the president's assertion of executive privilege, which would stipulate the reasons why the president wishes to protect information.

Section 1222--This final section challenged in President Bush's signing statement has drawn the most attention. This section, by far the shortest, is titled "Limitation on Availability of Funds for Certain Purposes Relating to Iraq." It has two statements: First, there is no funds that can go to establish any "military installation or base for the purpose of providing for the permanent stationing of United States Armed Forces in Iraq" and the second demands no funding "to exercise United States control of the oil resources of Iraq."

As Elana Schor at the "Guardian" notes, this particular challenge may become "as controversial as the (2005) signing statement sidestepping the torture ban." This particular section is part of an on-going debate between the Bush administration and the Democratic Congress on US presence in Iraq for the long term. In particular, the controversy is grounded in whether this agreement is a treaty or not. Last fall, the administration embarked on an agreement with the al-Maliki government in Iraq to protect the long-term interests (the "Declaration of Principles for a Long-Term Relationship of Cooperation and Friendship.") The Senate argues that this agreement should take the form of a treaty, which the Senate would get a say over the terms and in the end, whether it would be ratified. Yet the use of an executive agreement, which has been apart of Republic since birth and what Bush is attempting to do, has allowed the president to get around the treaty process by making agreements with foreign governments that work the same as a treaty, yet without the need to have the Senate ratify. It seems clear that President Bush's challenge of the provisions under the "Commander in Chief" authority cited in the signing statement.

There are some great things that have emerged as a result of the use of the signing statement. The greatest maybe the rapid response by the Congress. Several members spoke out against Bush's challenges on the floor of the chamber, and not just a flip statement in response to a reporters question (see here and here for examples).

I found it interesting that in President Bush's challenge, he claimed that the Congress violated his prerogative to "supervise the executive branch." This is a back down from previous challenges which claimed the prerogative to "supervise the unitary executive branch." That was a meaningful declaration of presidential power, and it seems to have disappeared.

Despite some of the over the top criticisms and other "analysis" of this signing statement, it is clear that the hubris from previous years is gone. The use of the signing statement, coupled with the challenges, are not there.

Whither the Unitary Executive?

The Bush administration has been most emphatic about the theory of the unitary executive. This theory, as you will recall, was developed in the Reagan administration as a way to justify unilateral actions and near-absolute control over the executive branch and the actions of its agents. The theory itself appeared in each administration, in one form or the other, up through the current Bush administration, which went professional with the ideal.

President Bush made sure to defend the many actions he took by mentioning the unitary executive in his public pronouncements. Sometimes he repeated the term to make sure we all got the point. For example, when he signed this Justice Department appropriations bill, President Bush mentioned the "unitary executive" eight separate times.

From 2001-2006, the term appeared in signing statements, executive orders, and other public pronouncements. In total, President Bush used the term 146 times, with an average each year of 24. But then came the 2006 midterm elections and the Republican losses in the House and Senate, giving the president true divided government for the first time in his administration.

Now that 2007 has ended, what can be said about the number of times the unitary executive made into various documents? Before I answer this, let me repeat my hunch that something has happened in the Office of the Vice President that has muted its effect on the executive branch. As we know now, the vice president had hijacked the process whereby a signing statement gets added to a bill the president signs. The vice president was also out in front in challenging the Congress as well as pushing for expansive presidential powers. But in the last year, very little has been written about Cheney or Addington outside the articles that look back on the glory days of unified government.

In 2007, the term "unitary executive" did not appear in any public pronouncement. Where he averaged 24 uses per year through 2006, he dropped to 0 for 2007. As I noted before, when a president's aggressiveness sparks a collective outrage, it has an effect on the president's actions. Thus all that has been written about President Bush's defense of the unitary executive has had the effect of forcing him into silence about his beliefs. It is an interesting turn of events. We shall see if the term reappears in 2008 as the eyes of the country turn towards the election and inauguration of the 44th President.