Power, Power, Power

Two interesting articles on yesterday's Sunday papers--one in the New York Times and the other in the Boston Globe--that dealt with the question of presidential power.

First, the Times's James Risen examines the state of presidential power for the 44th president in light of recent set backs to the Bush administration, and finds that the 44th President--whomever that is--will inherit an office with more power than previous presidents (this axiom has been true for every recent president beginning with the Reagan administration). Risen, however, seems to think that the surplus of presidential power is a new thing:

"...the next president will inherit powers much expanded since the 2001 attacks on New York and Washington."

Granted, the Bush administration has been very aggressive in pushing the envelope of Article II, but so have previous presidents. The key difference between the current and previous administrations is public awareness of the push, and clearly this administration has made once obscure strategies household names. But it is not correct to assume that one is more aggressive than the others.

In Risen's piece, he refers to the group of legal minds advising John McCain, and the list is telling. Called the "Justice Advisory Committee," it includes a number of attorneys who have been proponents of executive predominance in the constitutional system, starting with one of the co-chairs--Ted Olson--who served in the Reagan, Bush I and Bush II administrations and has been clear on his stance regarding presidential power. It was Olson, recall, who was part of the Supreme Court case challenging the independence of the "independent counsel." From there, it is a who's who list of conservative legal scholars on the front lines of advancing the unitary executive theory of presidential power:

• William Barr, who was head of OLC in the Bush I administration and wrote a famous memo to all executive branch agencies demanding they look out for the top ten types of congressional encroachment upon executive branch prerogatives;
• Rachel Brand--she worked in the Office of Legal Policy during the current Bush administration and a unitarian;
• Steven Calabresi--one of the founding fathers of the Federalist Society. He worked in the Reagan Justice Department and was instrumental in advancing the signing statement as a strategic weapon. Calabresi is also credited as a founding father of the unitary executive theory, unveling it formally in a 1992 law review article;
• Charles Cooper--worked in the Reagan Justice Department's OLC and was also on the ground floor in pushing the signing statement and presidential power;
• Charles Fried--worked as the Solicitor General in the Reagan administration, advancing the preeminence of presidential power in the US Courts. Fried commented back in the 1980s that it was the responsibility of the president and his staff to leave the Office in better shape than they found it.

The second article is also very interesting. In this article, Bryan Bender (who seems to have taken over the "presidential power" beat vacated by Charlie Savage, now at the New York Times). Bender examines how the Bush administration has failed to execute a provision of a law passed last summer without stating precisely why it is ignoring the law.

The law--and a big one--was the very first piece of legislation introduced into the House under Democratic control in 2007. H.R. 1 put into effect the recommendations made by the 9/11 Commission. This law was part of the promise that Democrats made in the lead up to the 2006 midterms that if elected, they would pass.

One part of the law ("Implementing Recommendations of the 9/11 Commission Act of 2007") requires the president to appoint a White House coordinator for preventing terrorism. In particular, Section 1841--"Office of the US Coordinator for the Prevention of Weapons of Mass Destruction Proliferation and Terrorism"--establishes this new office in the EOP with a Coordinator (and staff) who is appointed by the President and confirmed by the Senate.

It is the duty of the Coordinator to: 1) serve as principal adviser to the President on all matters involving the prevention of WMDs and terrorism; 2) developing a comprehensive and well-coordinated strategy for prevention of WMDs and terrorism; 3) lead inter-agency coordination of US efforts to implement the strategy and policies for the prevention of WMDs and terrorism; 4) conduct oversight and evaluation of any initiative or policy in the area of prevention of WMDs and terrorism; and 5) overseing the development of a comprehensive and coordinated budget for programs and initiatives in the area of prevention of WMDs and terrorism.

In January 2007, the administration sent a SAP to the House arguing that this new position had a number of problems. Mostly, it is "unnecessary given extensive coordination and synchronization mechanisms that now exist within the executive branch, including the Sept. 2006 National Strategy for Combating Terroism which sets forth a comprehensive multi-layered strategy to combat the threat of WMD terrorism." Bush echoed similiar concerns in the SAP he sent to the Senate on its companion bill, S.4.

Yet when President Bush signed the law in August, 2007, there is no mention nor challenge to Section 1841. The only thing that President Bush does write, perhaps alluding to this section, is that he has issued "numerous Executive orders, Presidential directives, and national strategies" as well as signing "into law the Intelligence Reform and Terrorism Prevention Act of 2004, the PATRIOT Act, and other important pieces of legislation." It appears that his position on the Section 1841 is that it is redundant and unnecessary. Bush further notes that Congress has not passed all the recommendations of the 9/11 Commission and most importantly the Congress has failed to implement the Commission's recommendations that Congress reform itself in order to better conduct oversight of the intelligence communities in the US. Thus Bush may also be reasoning that he need not act upon the mandates of the law because the work has yet to be finished. But whatever his reason, he didn't place it in the signing statement, where such challenges are normally found. As Bender writes: "This time...the White House seems to be ignoring the nuclear terrorism coordinator requirement not for constitutional reasons but simply because the administration thinks it is a bad idea. It is a stance some legal scholars called an even more blatant disregard of the checks and balances on presidential power."

There is nothing new in the actions (or non-actions) of the president. Quite often the Congress creates a position within the Executive Branch, demanding that the president appoint a certain type of individual and then share any of information coming from this position with the Congress itself, only to find that the president refuses to appoint anyone because it violates his constitutional powers.

I hope to find out more about this particular maneuver since it might represent a new manifestation of presidential strategy. Rather than make public the reasons why the president is challenging a provision of law (as is the case with signing statements, proclamations, or executive orders), the president may be making the case internally without public scrutiny. Or perhaps the president has invented a new device that we have yet to stumble upon. Whatever the reason, something different has happened and it behooves us all to find out what that is.

Bush and Jackson and Lincoln...Oh My!

One of the best journalists at condensing complex subjects to their essence is Dan Froomkin at the "Washington Post." Today's entry falls in line with some of the best that anyone has written on the issue of presidential power and the current Bush presidency. Froomkin begins with the following:

"What kind of country is it where, when the head of state asks you to do something that may well be illegal, but assures you that he considers it legal, you can't be held accountable for doing it? Welcome to the new U.S. of A."

What he refers to is the House passing the surveillance bill that gives complete immunity to the phone companies who were spying on their customers on behalf of the president and without authorization from the FISA courts--or without any oversight of exactly who was being listened to. Critics have charged that Americans making domestic calls were spied upon in direct contradiction to established laws because the administration raised the specter of "combatting terrorism" as necessary to break the law. There are numerous lawsuits aimed at phone companies who were complicit, with AT&T being one of the more high profile and prolific offenders (great job, Apple, for making that exclusive deal with AT&T for phone service to the IPhone).

First, it is clear that--despite their big talk--the Democrats in charge of Congress are incompetent to stop this President from getting what he wants. They came to power in 2007, and have only accomplished in sharing some of the blame that has been heaped upon Washington from those out in the hinterlands. That aside, this case involving the phone companies is an interesting one. As Froomkin notes, it involves the President of the United States telling private entities that they are protected in breaking the law. And if you think about it, that means the President of the United States believes he may break the law and provide blanket coverage to anyone else who follows. This isn't without precedent. The Department of Justice will issue "legal opinion" to executive branch agencies assuring them they are covered if there is a question of breaking the law. For instance, back in 2005 there was the issue of executive branch agencies using video news releases (VNR) in order to spin policy. These VNRs were sent to local television stations all across America and were run without local news stations telling their audience that they were actually manufactured by a particular government agency, instead leaving the viewer to believe that the news station put the story together itself. The Government Accountability Office (GAO) found that the VNRs violated federal laws against propaganda and ordered the agencies to stop producing them. The Office of Legal Counsel (OLC) issued an opinion, which was widely circulated by Josh Bolten, a SAO inside the White House, giving the agencies the green light to continue sending the VNRs out "as is" because the GAO, which is a legislative agent, has no authority to tell an executive branch agency what it should or should not be doing (despite a wide body of evidence to the contrary).

But what the current issue presents is something entirely different. Here you do not have the head of the executive branch ordering his inferior officers to follow orders, but instead the head of the executive branch (and not the King of the US) telling entities outside the government that they may break the law in accordance with the (policy) edicts of the President!

It is clear that the Democrats missed a chance to fight the president on disputed constitutional grounds--does the president as commander in chief have the authority to not only circumvent the law himself, but also to order others (inside and outside the executive branch) to follow suit OR is the law supreme despite the current state of domestic and/or international affairs? And clearly the Congress has the tools to make a statement on the current administration as it fades into the sunset that is not impeachment. I have never agreed with those on the Left that it should be all about impeachment mostly because impeachment would take longer than this administration has in office, plus it is not clear that the public has the stomach for it. But why not use censure against the president and the vice-president? This device does not even need the support of both chambers. The more authoritarian House of Representatives can drive such a measure through without support of the Republicans. And a censure--which is a black mark on the office holder--is something that, in the past, has gotten under the skin of the president. Back in the early 19th century when the Senate censured Andrew Jackson for, among other things, his veto of the Bank of the US reauthorization. In that instance, the Senate, by simple majority, voted to censure for "assuming power not conferred by the Constitution." Jackson sent a letter of protest to be read into the Record, and the Senate refused to "print the president's message." The censure at least puts the Congress on record--for future generations to see--that there were some serious problems in the way the Bush administration respected the Constitution and the Rule of Law, and those future scholars and politicians should not forget it. Plus it is a far more acceptable device to digest for the American public.

Froomkin ends his article with a blurb on Bush and his legacy. If you have been watching the actions of President Bush this last year, you have seen a person who is very much concerned with how he will be treated by history. I still believe personally that history will not be kind to President Bush, but with the ease in how history can be revised, there are still options available to the president to make the case that he has acted in accord with great presidents of the past. For instance, Bush can make the case that his aggressive unilateralism was often blessed retroactively by the Congress, thus preserving our constitutional system of separation of powers much the way Lincoln's actions were blessed retroactively by the Congress he faced. Whether it was Military Commissions or habeas corpus or the current surveillance bill, Bush's unilateral actions received the blessing of Congress in retrospect, which raises the question: "do questions of constitutional abrogation rest on abuses that immediately happen or on abuses that, after the passage of a certain amount of time, do not bring garner the support of the Congress or the American public?"

What Happens Next?

You remember our friend Bill, the lonely parchment "sitting up on Capitol Hill" awaiting to be considered by the Congress so that he might have the chance to become a law?

The "textbook" model of the legislative process tells us, in a very linear fashion, that a bill has a starting point, several hurdles to overcome, and an ending point whereby the two chambers of Congress vote on an identical piece of legislation, which is then sent on its way to the president where he gets 10 whole days to consider signing it or vetoing it. But if you had the kind of public education that I had, you are as much in the dark as I was at what could possibly take 10 days to consider whether you wish to sign or veto a bill? Particularly, as I was taught, when you know that the president is very active during the entire legislative process in marshaling a bill through each stage that is as close to his liking as possible. So it isn't like he doesn't know what the bill entails, and thus must take 10 days to "crib" in order to make a decision.

With this in mind, Slate's Jacob Leibenluft wrote an article on "how a new piece of legislation gets delivered to the White House," where he asks: DOES CONGRESS E-MAIL THE PRESIDENT? And it is a must-have for high school teachers and American Government faculty all of the US.

Once a bill is passed by both chambers, it is considered an "enrolled" bill, so designated on the website Thomas by the letters ENR. The enrolled bill is supposed to be in identical form, yet there has been moments in the past where that hasn't happened, including the recent farm bill sent to and vetoed by President Bush. That bill was missing 34 pages, requiring the Congress to vote twice to override the president's veto.

The enrolled bill, after certification from the House Clerk or the secretary of the Senate, is then printed on parchment, which in the days of the First Congress was animal skin but today is a special type of paper that resembles animal skin (lamb or goat). Once the final preparations are made, the clerk or secretary (which depends on the chamber the bill originated), and the leadership in each chamber sign off, leaving the bill to be hand delivered to the executive clerk in the White House. The bill is also sent electronically to the Government Printing Office to be displayed online and in print. As Leibenluft notes, if there is an error in the bill, it may be ignored by the president (if it is minor) or the president may issue a signing statement demanding corrections. Leibenluft brings up the "Vicksburg National Military Park" bill as an example of a bill that was sent to President Bush with error. In President Bush's signing statement of the bill, he writes:

The second sentence of section 3(b) of the Act reads: ``Upon the acquisition of the property referenced in this subsection,
the Secretary add it to the Vicksburg National Military Park and shall modify the boundaries of the park to reflect its
inclusion.'' It is plain in reading the sentence that a word is missing between the words ``Secretary'' and ``add.''

In accordance with section 106 of title 1 of the United States Code, enrolled bill S. 1175 was presented to
me bearing the signatures of the Speaker of the House of Representatives and the President pro tempore
of the Senate, which attests that both Houses passed the bill. In accordance with the principles enunciated by the
U.S. Supreme Court in Marshall Field & Co. v. Clark in 1892, I take the bill presented as being duly enrolled and
shall not turn to the journals of either House, the reports of congressional committees, or other documents
printed by the authority of Congress in an effort to determine whether an error in the enrollment of S. 1175 has occurred.

The Congress normally allows sufficient time before a law takes effect to allow for changes that might be made--Thus in the president's signing statement, he may tell the Congress that a provision cannot take force until Congress makes the necessary corrections, which Congress will do in a concurrent resolution, noting that the changes have taken place so that if challenged, the courts will have the truest sense of the legislation. However, if the Congress does not act to correct, the bill that the president signs is the final word, warts and all.

Now, what happens when the bill is hand delivered to the Executive Clerk?

In a 1979 Political Science Quarterly article by professors Stephen Wayne, Richard Cole, and James Hyde, Jr., provide the details of what takes place once the bill arrives at the White House. Copies of the bill are made by the Legislative Reference Division within the Office of Management and Budget and sent to all agencies and departments that are implicated by the legislation, which also includes a copy that is sent to the Office of Legal Counsel within the Department of Justice. The OLC will look for constitutionally problematic provisions while the agencies and departments will make their recommendations as to whether the bill should be signed or vetoed. All have 48 hours to make their recommendations and get them back to the LRD. If they recommend a veto, the agencies and departments also include a veto message that can be used should the president veto. They also include language that may be used in the case of the president attaching a signing statement to the legislation--for instance, many of the constitutional signing statements--that is, the challenges to defective provisions of a bill--originate in the OLC--in fact, the language is lifted verbatim from the OLC recommendations. From here:

The Legislative Reference Division then collects the recommendations and prepares a cover memo for the president. This memo briefly describes the purpose of the bill, lists the department and agency positions, indicates the OMB recommendation, and discusses the major issues of the legislation. The cover memo and the accompanying statements of the departments and agencies are then forwarded to the White House not later than the fifth day of the 10-day period within which the president must act.

What the president does next is solely and completely up to him and those closest to him. As we have seen in the current administration, constitutional challenges have been added by the vice-president and his staff after the OLC has made its recommendations (and one of the reasons why the challenges are as high as they are). Or, advisers close to the president may toss overboard the constitutional challenges of the OLC, all for political expediency. For instance, when I was working on my dissertation, I interviewed Doug Kmiec about his role in the Reagan administration in developing the signing statement into the weapon it has become, and also to ascertain his view from the perch at OLC. In particular, in 1986, the Reagan administration offered a contradictory interpretation to a provision of an immigration bill because the provision was left undefined after a battle between the House and the Senate. Kmiec stated:

I thought this statement had in essence been "hijacked" by a few people...at the White House who wanted, somewhat imprudently in my judgment, to express political rather than legal concerns that did not fairly reflect...either legislative intent or a constitutional evaluation that necessarily must qualify that intent.

Kmiec also described another instance in 1988 when Congress passed a whistleblower protection bill that OLC objected to. In this instance, those closest to VP Bush were cutting deals with members of Congress to mitigate OLC's recommendation that the bill be vetoed. Thus once the bill arrives in the Oval Office, the president can take whatever course of action he wishes to take. What is important to note, however, is just how much the recommendations from the inferior offices limit those actions the president may take. Thus Congress must take into account not just the wishes of the president, but also the views of these inferior political players.

Addendum

I got an email last night from Gene Healy at Cato, writing to take me to task for claiming his position on the Bush administration has shifted because Bush is about to leave office and a Democrat might win. In this post, my purpose was to respond to Healy's article in the recent issue of "Reason" on modern presidency. In the article I noted that a number of conservatives had begun to come out of the woodwork in criticizing the Bush administration's "abuse" of power. Because this was lumped into the same article, it gave the appearance that I lumped Healy into the same category of these other conservatives, which was not my intent. As I noted in the post, Healy and Cato issued the same sort of criticisms at the end of the Clinton administration as they do now at the end of the Bush administration. But because it wasn't clear, I apologize to Mr. Healy and reproduce his selective bibliography of articles and postings taking the current Bush administration to task. Let me also add my thanks for stopping by this blog to read and respond. I hadn't realized anybody did this! OK, the bibliography:

"Power Surge: The Constitutional Record of George W. Bush http://www.cato.org/pub_display.php?pub_id=6330 ," by Gene Healy and Timothy Lynch, White Paper, May 1, 2006.

"Stay What Course? http://www.cato.org/pub_display.php?pub_id=5164 ," by Gene Healy and Justin Logan, Reason (Online), November 2, 2005

"Geena Davis Is Not My President http://www.cato.org/pub_display.php?pub_id=5140 ," Reason (Online), October 18, 2005

"What of 'Posse Comitatus'? http://www.cato.org/pub_display.php?pub_id=5115 ," Akron Beacon Journal, October 7, 2005

"Domestic Militarization: A Disaster in the Making http://www.cato.org/pub_display.php?pub_id=5074 ," Cato.org, September 27, 2005

"Jose Padilla: Constitutional Unperson? http://www.cato.org/pub_display.php?pub_id=5043" Miami Herald, September 24, 2005

"Bush's Tortuous Choice http://www.cato.org/pub_display.php?pub_id=3991 ," Cato.org, July 15, 2005

"We're at War not with a State but an Armed Ideology http://www.cato.org/pub_display.php?pub_id=2828 ," Star Tribune, September 12, 2004

"Can the President Imprison Anyone, Forever? ," Cato.org, April 28, 2004

"Nourishing the enemy http://www.cato.org/pub_display.php?pub_id=4563 ," South China Morning Post, April 19, 2004

"Deployed in the USA? http://www.cato.org/pub_display.php?pub_id=2576 ," Cato.org, March 19, 2004

"The Era of Big Government Conservatism http://www.cato.org/pub_display.php?pub_id=4564 ," Cato.org, February 1, 2004

"Requiem for the Powell Doctrine http://www.cato.org/pub_display.php?pub_id=3209 ," Chicago Tribune, August 11, 2003

"Remake the World in America's Image? http://www.cato.org/pub_display.php?pub_id=3186" Cato.org, August 2, 2003

"The Case of the Missing WMDs http://www.cato.org/pub_display.php?pub_id=3132," Cato.org, June 19, 2003

"Why Hussein Will Not Give Weapons of Mass Destruction to Al Qaeda http://www.cato.org/pub_display.php?pub_id=3017," Cato.org, March 5, 2003

"Border Security Is No Job for the Military http://www.cato.org/pub_display.php?pub_id=6319," Los Angeles Times, February 5, 2003

"Beware of Total Information Awareness http://www.cato.org/pub_display.php?pub_id=2959," Cato.org, January 20, 2003

"War by Legal Loophole http://www.cato.org/pub_display.php?pub_id=3593," Cato.org, September 12, 2002

"Misguided Mission for Military http://www.cato.org/pub_display.php?pub_id=6322," Washington Times, July 31, 2002

"Volunteer Voyeurs? http://www.cato.org/pub_display.php?pub_id=3550," Cato.org, July 29, 2002

"War with Iraq: Who Decides? http://www.cato.org/pub_display.php?pub_id=3405," Cato.org, February 26, 2002

From The Woodwork They Come

I find it interesting the number of books and articles from conservatives bemoaning the abuse of executive power, coming now that it looks as if a Democrat may actually take the reins of a powerful presidency and not a Republican (although a Democrat winning still is not a given).

One of the more recent critiques comes from Gene Healy at the Cato Institute, whose book is titled The Cult of the Presidency: America's Dangerous Devotion to Executive Power. As an interesting aside, Cato published an edited book at the end of the Clinton Presidency titled The Rule of Law in the Wake of Clinton, which was based on a conference held at Cato and included, unbelievably, a chapter by John Yoo titled the "Imperial Presidency Abroad" and was an indictment of Clinton's military excursions in places such as Haiti and the Balkans.

And Healy also was critical of Clinton and the exercise of presidential power in this Cato article that appeared on Bush's first inauguration in 2001.

Reason excerpted this piece from Healy's book, titled "The Cult of the Presidency" and teases that the blame for the rise of abusive presidential power lies with us, the American public.

Healy opens up with a discussion of how the contemporary American presidency is completely out of whack with the Founders vision of presidential power, yet he provides no caveat that not all the Founders favored a weak presidency. In fact, the modern president's exercise of power owes as much to Alexander Hamilton as it does to changing circumstances. It was Hamilton who manipulated the Vesting clause of Article II so that it was open-ended enough to allow for the exercise of executive power outside the confines of Article II.

Healy also provides a quick history of the presidency in the 19th century (which Healy calls the "Modest Presidency"), and uses that period to model his expectations for the current presidency--or better, to point to a time when separation of powers worked as it should. During that period, a president was rarely seen by the American public and the Congress expected it that way. He notes Jefferson's refusal to deliver the State of the Union Address in person to the Congress because it was a violation of the constitutional separation of powers and represented an inappropriate influence over the Congress, and when the president did act unilaterally, it was atypical and the president was always cognizant to return the system back to its original state.

Where It All Went Wrong

For Healy, there were two variables that had the greatest effect on the expansion of presidential power--communications and crisis. First, communication technology allowed the president to interact with the American public in a way no other political figure--president, Congress or otherwise--had up to that time. It was Teddy Roosevelt who worked spin through the national newspapers, Woodrow Wilson who broke the tradition of hand-delivered State of the Union Addresses, thus striding into the House before a full gathering of the Congress and delivering the State of America, and FDR who took hold the new technology radio to communicate to Americans on a personal level, thus allaying their fears of domestic and international threats and problems. For Healy, this is where it all went wrong. It is not the president's job to assure of us anything. He is not our healer, our protector, our "father." He is one of many political figures elected to serve our interests. By placing him on a pedestal, it gives him license and freedom to upset the natural order of the Constitution.

The second key variable is the permanent state of crisis--depression, fascism, communism, poverty/drugs/crime, and finally terrorism. Each blended in to the other. And with each new crisis came new powers to the presidency to act. He had "his finger on the button," he was the "leader of the free world" and so forth. What we have come to understand about the flow of the new powers is that they are uni-directional--they flow to the presidency but are never returned. Thus the lessons of 19th century presidents such as Lincoln is lost. As the Civil War concluded, Lincoln was deliberate in stepping back into the Constitution, returning some dictatorial powers he had taken in response to the cessation of the South. If we were to face a crisis of that magnitude today, would the system reset? Would a 21st Lincoln behave as the 19th century did, or would America go the way of Rome? I agree with Healy on this point--the danger of this new war on terrorism is a war without end--different from the Cold War where there was a geographical threat to deal with. This is an enemy without borders, and so long as this enemy is allowed to manipulate our politics and safety in the way it does, it means that our constitutional system is threatened, but by a powerful presidency. As Healy notes, since 9/11, these fears have been realized:

For a president beleaguered by public demands, seizing new powers can be an adaptive response. Small wonder, then, that the Bush administration promptly sought enhanced authority for domestic use of the military. Although few in the media noted the historical moment, the president received that authority. On October 17, 2006, the same day he signed the Military Commissions Act denying centuries-old habeas corpus rights to “enemy combatants,” the president also signed a defense authorization bill that contained gaping new exceptions to the Posse Comitatus Act of 1878, the federal law that restricts the president’s power to use the standing army to enforce order at home.

The new exceptions to the act gave the president power to use U.S. armed forces to “restore public order and enforce the laws” when confronted with “natural disasters,” “public health emergencies,” and “other…incidents”—a catchall phrase that radically expands the president’s ability to use troops against his own citizens. Under it, the president can, if he chooses, fight a federal War on Hurricanes, declaring himself supreme military commander in any state where he thinks conditions warrant it. That’s the kind of executive power grab that happens when the public demands that the president protect Americans from the hazards of cyclical bad weather.

Missing the point

I have two problems with Healy's thesis. The first problem comes from his suggestion that the 19th century represented the best reflection of separation of powers in action, or the best modeling of the Founders wishes. The 19th century saw an "imperial Congress" that browbeat the president into compliance. With few exceptions, the presidency of the 19th century was an office without purpose or power. The vice president and cabinet officers were agents of the Congress. These presidents were given little to no money for help by way of staff. And each was expected to abide by the "expressed" powers of Article II. In sum, the president of the 19th century was a glorified "clerk," processing and administering the wishes of the Congress. So awful was the plight of these presidents that Woodrow Wilson suggested the Constitution be redesigned and the presidency folded into the Congress, becoming more like the Prime Minister of England.

The second problem I have with Healy's point of blame is that the modern president has grown in power mostly because the Congress has "delegated" power to him. At the start of the 20th century the Congress empowered the president to formulate the budget, thus ceding influence over the political agenda to our chief executive. Every major military action since WWII has come from congressional authorizations to use force--in particular this current War is the result of a blank check the Congress delivered to the president in the wake of the 9/11 attacks. The history of the 20th century is a history replete with congressional delegations. Thus the Congress has giveth, it is reasonable that the Congress can taketh away. But only with intense resolve by a Congress committed to protect the interests of the "First Branch," and we haven't seen such a Congress in a generation or more. Thus if the Founders were to return, they would be just as shocked at the sorry state of the Congress as they would the powerful presidency.

Finally, Healy (and others) heap their blame on the "imperial presidency." This is the great bogeyman of many intellectuals--the imperial presidency. More often than not, the term has no definition. And because it has no definition, it is mostly employed for partisan purposes to criticize actions of a president that opponents do not like. The Republicans in the 1990s accused Bill Clinton of acting "imperious" and the Democrats in the last 8 years have made identical claims. The "imperial presidency" thesis accuses an individual of usurping power for personal reasons, and because of this assumption most falsely believe that it ends with occupant. But executive power has been "institutionalized" over the course of the last 30 years, enabling each new president to start with enormous powers, and with a mission to leave the place in better condition than you found it (a lesson, interestingly enough, that is lost on the current administration).

So prepare yourself for articles such as these. As the days of the Bush administration wind down, we should see more--not less--articles in this vein.

The Presidential Signing Statement Act of 2008--An Exercise in Futility

For the third year in a row, a member of Congress has introduced a bill that attempts to get a handle on the presidential signing statement, and for the third time in a row, the bill is more show than substance. That is to say, it will allow a member to run for re-election on a promise to get a handle on the president's wanton and willful violation of the Constitution by using a signing statement.

In 2006, following the media attention directed towards President Bush's use of the signing statement, both the House and Senate introduced legislation, which went nowhere, to limit the president's use of this tool. The same thing happened in 2007, and now 2008 brings yet one more piece of legislation that, like its predecessors, will go nowhere. Every other bill died in committee and this one will likely share the same fate.

The "Presidential Signing Statements Act of 2008" has been introduced by Representative Walter Jones, a Republican from North Carolina. The explanation for the bill is to "promote congressional and public awareness, understanding, and political accountability of presidential signing statements" and has been sent, for consideration, to the House Judiciary Committee.

The substance of the bill--HR 5993--is as follows:

In the section titled "Findings," Representative Jones finds:

• Those signing statements that challenge the constitutionality (which I call "Constitutional signing statements") of provisions of law raise serious constitutional concerns;
• The Constitutional signing statement conflicts with the president's obligation to take care the laws are faithfully executed;
• The Constitutional signing statement violates the president's oath to defend the Constitution by signing bills that have unconstitutional provisions;
• The Constitutional signing statement violates the Constitution by adding an "item veto" to his veto prerogative;
• The Constitutional signing statement is difficult to challenge due to the "standing" requirement of Article III;
• The Constitutional signing statement is difficult to challenge because most members are unaware of their use or their significance;
• Raising the signing statement's profile would bring better congressional and public pressure against their use by the president

Before I delve into the bill's requirements, I want to take a minute to review the findings. First, I find it interesting that a Republican would admit the need for legislation because of personal ignorance. Isn't the Republican mantra all about personal responsibility? Yet right there in bullet #6: "Most Members of Congress and the public neither know nor understand the significance of presidential signing statements." Well they aren't hidden. There has been plenty written about them by scholars of varying stripe. And since 1986, they have been published in the United States Code, Congressional and Administrative News (USCAAN)--and since most members have access to Lexis-Nexis, that search engine has been putting the signing statement into legislative histories of bills going back to the early 1970s.

Now onto the requirements of the President and his/her staff as it pertains to the Constitutional signing statement.

Section 4

This section requires the president to "transmit to the Speaker of the House and the chair of the Judiciary Committee, and the majority leader of the Senate and the Judiciary Committee each signing statement that declares or insinuates the intention of the president to disregard provisions of any bill he has signed into law because he believes it is unconstitutional. The transmissions shall be made no later than three calendar days after the issuance of the statements. The president shall also have such statements published published in the Federal Register according to the same terms and conditions as if they were substantive final rules issued by the Department of Justice.

This requirement, which has appeared in previous versions of this bill, continues to puzzle me. The presidential signing statement has been accessible to anyone who is interested in finding them. Prior to the Internet age, all you needed was access to a library that had the "Weekly Compilation of Presidential Documents," that goes back to 1965. Since the Internet age, the WCPD are accessible online at http://www.access.gpo.gov/nara/nara003.html.

Furthermore, since 1978, the AG has supposed to have been transmitting to Congress any signing statement that refuses defense of law, and since 2002 the requirement has stepped up to include any signing statement that refuses enforcement of law. Now if Rep. Jones and other members of Congress have not been aware before now, then this bill will not make them any more enlightened.

Section 5

This section requires any legal personnel--AG, deputy AG, or White House Counsel, to "testify before the Committees on the Judiciary of the House of Representatives or Senate at the behest of any single Member of either committee to explain the meaning and justification of every presidential signing statement covered by this Act. Executive privilege shall not be recognized as a valid basis for refusing to appear or refusing to answer a question pertinent to the legal reasoning behind a signing statement or its legal ramifications.

First, there is nothing precluding the Congress from doing this now. Instead of inviting the AG, deputy AG, or WH Counsel to come and testify, why not invite the agency personnel to come and tell Congress whether they are following the president's orders? To be honest, inviting a someone from Justice is unproductive. All the member will get is a legal opinion that it is the president's prerogative to refuse enforcement, with partisans on both sides attacking or defending their use--at least this is how the oversight hearings have gone so far.

Second, the Congress cannot condition how the president uses executive privilege. Thus it is a waste of space and time to command that "...executive privilege shall not be recognized as a valid basis for refusing to appear or refusing to answer a question..." The president can claim executive privilege however he or she wishes. Congress of course has the right to challenge in the courts, as we have seen in the past. But that is after the fact, and not before.

Section 6

This section cuts off money to implement the signing statement if Sections 4 or 5 have been violated.

It is clear that Congressman Jones introduced this bill for advertisement purposes only. On his homepage you find JONES INTRODUCES PRESIDENTIAL SIGNING STATEMENT. Clicking this link you go to the press release which has some interesting commentary:

"Just as the American people have access to the text of bills that are signed into law, they should have easy and prompt access to the content of presidential signing statements that may effect how those laws will be executed,” Congressman Jones said. “To enable a more complete public understanding of our nation’s laws, the U.S. Congress should also be able to call for the executive’s explanation of the meaning and justification for a presidential signing statement.”

It is laughable if he thinks that public access to legislation is easier than the public access to signing statements.

“According to CRS, President Clinton issued 381 signing statements while in office, 70 of which raised legal or constitutional objections. President George W. Bush has issued 157 signing statements, 122 of which have contained some type of constitutional challenge or objection,” Jones said. “Because it’s reasonable to assume that future presidents will continue this practice, I believe Congress should act now to pass legislation that will ensure proper understanding and disclosure of these signing statements.”

This is wrong. As you readers know all to well, President Bush has now issued 160 signing statements that have challenged 1,167 provisions of law. These numbers comes from an article written by two legal scholars--Curtis Bradley and Eric Posner, who decided to recount the numbers and types of signing statements because of uncertainty in the count--even taking me to task for revising my categories, which I did. In my earlier work on the signing statement, including my dissertation, I divided the signing statement into three different types: Rhetorical, Constitutional, and Interpretive. I counted as a constitutional challenge any challenge where the president refused enforcement of a provision of law, and Intepretive any provision where the president had to supply his interpretation of a provision because it was written in an unclear manner.

The problem I ran into was a definitional one--in nearly all cases, when a president interprets or challenges, he does so by pointing to his Article II powers to justify his actions. Further, particularly by the time of Clinton and Bush II, their signing statement challenges made it tough to separate as either-or. So I sacrificed a level of understanding because it was unmanageable--and I continue to believe that anyone who continues to use the three categories are having to guess at some signing statements, and we should not be guessing. It made more sense to me to collapse the Constitutional and Interpretive categories in one category titled Constitutional. Since the president was justifying his actions in constitutional terms, I feel comfortable with my decision. Thus when I had the three categories, the total numbers were much smaller.

Posner and Bradley also note that their additional category gives them numbers different from others, which is correct. The problem with this is it provides shelter for partisans--and we have seen this on a number of different occasions where the argument is that Clinton issued more signing statements than Bush or, as Jones cites the CRS article (relying on Bradley and Posner's data) which demonstrates an incredible difference between my count, or the count by Kinkopf and Shane, thus creating a sense that no one really knows how many or how few challenges a president has made, thus the numbers are derived for partisan reasons rather than scholarly reasons.

The action by Jones has been noted by members of the press. In this article, titled "What else has Bush Lied about?," columnist David Paul Brown distorts the issue of the signing statement. Brown writes:

Presidents over the years have all used signing statements but they were used rarely and mostly for "big ticket" items. President Bush uses them to sign most any law and then essentially say, "I can choose to follow the law, follow it in part, or ignore it entirely if I choose to." He has issued more signing statements than all other presidents combined.

I have no ideal what a "big ticket" item is in political terms. In household lingo, it refers to things such as a big screen TV or a car. Further, once again we are left with the sense that the president uses a signing statement because the mood strikes him to do so. Sure, President Bush has challenged more provisions of law than any other president, but all of those challenges come packaged in constitutional terms. Thus for the most part, any one of President Bush's signing statement that challenges provisions of law reads like those challenges made by Reagan, Bush I, and Clinton. To say different demonstrates just how little you know about the signing statement.

If the Congress and partisans like Brown really want to combat the use of the signing statement--at least so long as Bush is in office--then they will continue to fight for Democratic control of Congress, because since January 2007, President Bush has barely turned to the signing statement, and when he does, it is often for purely rhetorical reasons. It appears that divided government has had a major effect on the use of the signing statement by the Bush administration, which is weird. In the past, divided government was a major reason why presidents used the signing statement to challenge provisions of law.

Second, the Congress and partisans like Brown will work hard to uncover how the challenges are implemented in the executive branch agencies, because that is what is really important. The president can make all the challenges he wants, but it is clear that he will only see through a tiny subset of those challenges. Thus Congress should continue to hold oversight hearings and press the GAO to replicate some of the studies it has done in 2007. Furthermore members of the press will continue to use their contacts inside the executive branch agencies to determine whether the signing statement is actually having an effect on implementation. Only then will we all really understand the importance of the signing statement to any president, Democrat of Republican.

McCain in Ohio

Republican-nominee John McCain was in my state capitol today--Columbus--to rev up the Republicans in Ohio--an important state for either Party, and one where Republicans have suffered some recent defeats at the state level, losing the Governor, State, and AG in the last election.

McCain spoke about a great many things, including the presidential signing statement. McCain has fumed over the use of the signing statement ever since President Bush used his signing statement to renege on a deal regarding torture back in 2005. In November, 2007, McCain told a gathering at a Rotary Club that he would "never issue a signing statement." He seems to have changed his stance a bit since that speech. Today McCain declared, late in the speech:

I am well aware I cannot make any of these changes alone. The powers of the presidency are rightly checked by the other branches of government, and I will not attempt to acquire powers our founders saw fit to grant Congress. I will exercise my veto if I believe legislation passed by Congress is not in the nation's best interests, but I will not subvert the purpose of legislation I have signed by making statements that indicate I will enforce only the parts of it I like. I will respect the responsibilities the Constitution and the American people have granted Congress, and will, as I often have in the past, work with anyone of either party to get things done for our country.

His position is no longer absolute, and it is also misleading. He says: "I will not subvert the purpose of legislation I have signed by making statements that indicate I will enforce only the parts of it I like." Who would disagree with that? You will not find any signing statement the challenges various provisions because the president doesn't "like it." Unfortunately the debate surrounding the signing statement has created a false belief that when the president uses them, he "willy-nilly" moves through the bill, tossing aside those provisions that he doesn't care for or about. In fact, the signing statement, when challenging a provision of law, couches those challenges in constitutional language--or more simply, when a president refuses enforcement, he does so because not only does he believe, but also his legal advisers in the White House and in the Justice Department, has told him that it violates the Constitution.

It will be important as the election season matures to nail down McCain on the issue of the signing statement since his view has changed. It also might give him the opportunity to clarify that not all signing statements are bad and further, not all challenges are carried out--in fact, only a tiny fraction of the challenges are implemented by the president.

A Signing Statement Came Down To Georgia...

For the second time this year, I have discovered a governor publicizing the issuance of a signing statement done in the spirit of the presidential signing statement. Earlier this year I wrote about Kathleen Sebelius, the current Governor of Kansas, who had issued a pres release highlighting a signing statement on a bill that dealt with food regulations. And as I noted then, as now, it is clear that the practice of the signing statement, as it is used by the president, most likely came first at the governor level where a president liked the flexibility that it provided. And in part I assume that presidents turned to the signing statement to take control of legislation because he didn't have the item veto power enjoyed by a majority of governors in the US.

The most recent governor signing statement comes out of Georgia (with apologies to Charlie Daniels), where Governor Sonny Perdue used the signing statement on "must sign" bills that came at the end of a state legislature session. When you come to the Governor's frontpage, you see front and center the link: GOVERNOR SONNY PERDUE ISSUES SIGNING STATEMENTS ON FOUR BILLS...

And it is clear that Governor Perdue uses the signing statement for rhetorical reasons and, similar to the president, for reasons declaring that a precedent has not been established:

• HB 1245--Perdue complains that the bill violated the State Constitution by combing multiple things in one bill--"Put simply, statutes should be limited to a single subject so that members of the General Assembly may cast informed votes on the important matters before them." He notes that he is signing this bill because he believes "the benefits of this legislation outweigh the harm in this case," but also using the signing statement to put the GA on notice that in the future it may not be tolerated--hence the caveat that a precedent should not be set.
• HB 1277--also a signing statement to nip the establishment of precedent. This bill extends access to a health benefit plan for state workers to teachers at Charter schools. In a previous bill, Perdue vetoed it and worked out a deal with the state legislature to get this bill to his desk. Thus in place of the veto stands the signing statement: "My signing of this legislation should not be considered acquiescence of any other employee benefits beyond policy makers' intent to allow charter school employees to enroll in the State Health Benefit Plan." Again, he puts the state legislature on notice that this window opens only so far, and once those who need in get in, it slams shut.
• SB 276--It appears that this is a signing statement for purely rhetorical purposes only. The bill involves a plan that allows the automobile insurance companies to change their customer rates without having first getting a review before the state insurance commissioner, and instead allowing the market to set the rates (look how good the market has set the gasoline rates!). Perdue uses the signing statement to tout some plan he commissioned to study the rates between regulated and unregulated states: "...approximately half o the states do not regulate the price of automobile insurance, and my study of the issue revealed no discernable difference between rates" in the two types of states. However, the person at the head of the insurance commission in Georgia--John Oxendine--claims that Perdue's study is flawed and the rates will rise in an environment where no one is watching (although you would expect that if the government is no longer watching then the press should logically step in), claiming "if the insurance company lobbyists wanted this so bad there's a reason." True that!

So more evidence that U.S. Governors are taking the lead from the president and publicizing their use of the signing statement--in this case noting the use of the signing statement on the frontpage of the Governor's website. As more scholars begin to take a look at the signing statement, clearly an area that has been unexplored is its use by governors. I look forward to reading the research as it becomes available.

Don't Give Up

I will hand it to the House for continuing to probe what sort of influence that the Bush administration has over the regulatory agencies, although for dramatic flare the House Subcommittee on Commercial and Administrative Law (inside the House Judiciary Committee) titled their hearing: HEARING ON THE RULEMAKING PROCESS AND THE UNITARY EXECUTIVE THEORY because they--and the critics of the administration--equate the unitary executive theory with the actions of the Bush administration with respect to regulatory oversight and influence. However, if you delve backwards--say for instance a circa-1990 set of hearings by the House Government Oversight Committee (then as now under the direction of Congressman Henry Waxman--D. CA) into the influence exerted by the OMB and the VP's office over the EPA and its ruling with respect to the Clean Air Act Amendments of 1990--I am positive the term "unitary executive" was not used despite the fact that Bush's influence was consistent with the theory's main tenets.

Fortunately the Committee has not just the video of the hearing itself, but also the testimony of folks on both sides of the unitary executive issue--from Heritage to the Administrator of OIRA to Rick Melberth, policy director of regulatory policy at OMBWatch, which is where I learned of the hearing (if these committees have a mechanism whereby you can get daily notices of hearings, I haven't figured out how to do that yet).

The OMBWatch folks also provide a summary of the testimony given by most who were present at the hearing under the neutral title: OMB INTERFERENCE UNDER SCRUTINY IN CONGRESS. One thing that I noticed in the article, and I am not sure if this was deliberate or accidental, but for the first time I noticed a hint that what the Bush administration has been doing via their unilateral activities, despite defending as unitarian, might not be at all. They write: "Under the unitary executive theory, President Bush and conservative constitutional scholars have argued that the president has complete control over implementation of federal law and can ignore the input of Congress in doing so. Bush has used this rationale to dramatically expand the use of presidential signing statements and to ignore the opinions of Congress in his conduct of the war in Iraq." See what I mean? Before they would have simply stated: "Under the unitary executive theory..."

One area where you have seen a great deal of consistency regarding adherence to the unitary executive theory and presidents of either Party has been in the area of centralizing rulemaking authority inside the White House. For instance, the Reagan and Clinton administrations both issued powerful executive orders that pulled the executive branch agencies closer to the White House than the Congress, and to be honest, those who hold the view that the president might have an important oversight role but it is Congress that tells these agency heads what they should and should not do are anachronistic. Their days ended long ago. The Carter administration beefed up the muscle of OMB by creating the Office of Information and Regulatory Affairs (OIRA) and every president after took advantage of it.

The Clinton administration was equally zealous when it came to protecting the president's position as the chief administrator. For instance, Elena Kagan, now the Dean of Harvard Law School, but once a SAO in the Clinton White House wrote:

When Congress delegates discretionary authority to an agency official, because that official is a subordinate of the president, it is so granting discretionary authority to the President.

It is good to see the Congress continuing to conduct oversight and challenge the president regarding his interpretation of his power compared to the other constitutional institutions. Now if I can figure out a way to learn about it when it happens so my news isn't old news!

New Article

My colleague, Bryan Marshall, and I have just published an article in the latest edition of Presidential Studies Quarterly. The article looks at the use of the signing statement as a coordinate strategy with veto threats.

Under the Radar

An interesting announcement flashed on the White House News Page Thursday, and since it was clustered among a number of other announcements, it might have been missed.

If you scan down the list to the very bottom, you will find "Nominations and Withdrawals Sent to the Senate" and clicking it brings you to two nominations and once withdrawal. The first nomination, Kristen Silverberg of Texas, is to be the US Ambassador to the EU. Not significant until you make it to the bottom, and there you find the one withdrawal, C. Boyden Gray, who was the nominee-apparent.

If you do not know who C. Boyden Gray is, he is one of the masterminds behind the unitary executive, working in the first Bush administration to protect executive power against the intrusions from the Democratic Congress. It was Gray who orchestrated the creation of an alternative legislative history to the Civil Rights Act Amendments of 1991 so when his boss signed the bill, he would not have to accept a number of Democratic provisions that earlier had been vetoed.

Gray has been a thorn in the side of Democrats since the Reagan administration, where each Republican administration after Reagan tucked him safely inside the White House to keep immune from the Senate confirmation process. Even in this Bush administration, Gray initially served as a senior adviser to the president in the early days of the administration. But in 2005, President Bush administration sent Gray's nomination to be the Ambassador to the EU to the Senate Foreign Relations Committee in July 2005, but since the confirmation was stalled, President Bush recessed Gray in December 2006. The administration then had to bite the bullet and resubmit Gray's nomination to the Senate after the 109th Congress ran out of time. Only this time, of course, the Senate would be in the hands of the Democrats, which leads us to the withdrawal of the nomination and in Gray's place Ms. Silverberg, who has already been confirmed for a different position in the State Department and who I assume the administration sees as their best bet.

What is interesting is the lack of volume on either side of the political fence--the administration who jumped circles complaining about up and down votes, and the Democrats who use any chance to charge the administration with imperial motives. It might have been that Gray asked to have his nomination withdrawn, but that does not seem likely since he was given extra duties less than two months ago.

The Catholics Talk Back

I can only believe that it was the Jesuits who wrote this editorial for the National Catholic Weekly. It blasts President Bush for, as the title clearly states, an "Abuse of Office." It blasts the president for approving the use of torture and, more importantly, for "single-mindedly and with strident resolve sought to expand the power of the presidency beyond its constitutional limits."

I say that this had to have been penned by the Jesuits, who normally fall more to the Left than other Catholics. If it wasn't authored by Jesuits, then this article is both too little too late and the height of hypocrisy. The Catholics were a reliable supporter of both Bush runs for the presidency, and frankly the "abuses" identified in this article were things well known before now, so coming out against the President at this late date is...you get the picture.

The author(s) also throw in the signing statement as one of the major abuses of this administration, and in doing so commit numerous errors which is all too common today--almost a cottage industry. The errors are:

• Prior to 2001 the use of the signing statement was a "largely benign instrument of presidential communication," and Bush has "used them to subvert basic constitutional procedures by declaring in his statements which provisions of a law he will enforce and which he will not." As I have noted elsewhere, there is nothing different in how Bush uses the signing statements other than volume. Those who directly preceded President Bush used the signing statement to challenge provisions of law as well as to interpret those provisions that were unclear or ambiguous.
  
• When President Bush refuses to enforce a provision because of its dubious constitutionality, he "implicitly ignores the U.S. Supreme Court's exclusive right to judge the constitutionality of a law." But as we all know too well, if you believe that the Supreme Court has an "exclusive right" to interpretation--one that the other two branches must abide by--then you disregard our system of separated powers, where each branch is "co-equal" and "coordinate."
  
• The author(s) take the statements of Senators Clinton, McCain, and Obama at face value when they either claim not to use the signing statement in the same way as President Bush (Clinton and Obama) or to not use them at all (McCain). We should expect that a President Clinton or Obama will continue to use the signing statement in the same way as each president since Reagan has used them--to reach out to important constituencies, to challenge or refuse defense of defective provisions, or to interpret those provisions that are not clear. And President McCain will break his promise the first bill he gets that contains a signing statement from his Justice Department laying out his obligation to protect the prerogatives of the presidency--or be accused of a derelict of duty.

The author(s) actually do hit on the real problem regarding the "abuses" by the Bush presidency--they write: "The president’s power gains have come at great cost to the constitutional prerogatives of the legislative and judicial branches, which have frequently acquiesced in Mr. Bush’s consolidation of power..." If the Republican-controlled Congress would have challenged the Bush administration from 2001-2006 in the same way they challenged the Clinton presidency--or somewhere close to the way they challenged Clinton, then we may have never learned about the way the Bush administration has used the signing statement, the same way we never learned about how Clinton used them (despite my best efforts). But the Republicans chose instead to be the lapdog to the president, serving his every need, which accounts for their current position in the minority. I hope that as the Democrats step up their challenges to President Bush, the press won't take President Bush's (or the Republicans in the minority) word that this "do-nothing" Congress is only concerned with driving up the polarization in American politics or is somehow not concerned with the safety of Americans from "those abroad who want to do us harm here."

Pipe dream, I know.

Do You Hear What I Hear?

I caught part of Hillary's address to the Newspaper Association of America today, whose annual meeting was in DC and a perfect opportunity for all the candidates to come by and woo the press. And one thing that I heard fairly clearly was Hillary's support for the unitary executive--granted not the way that President Bush interpreted it--but unitarian nonetheless. Mrs. Clinton focused her talk on "the power and promise of the presidency." And from there, she hit right on things that are important to unitarians. She said: "Our Constitution instructs the president to take care that the laws be faithfully executed and calls upon the president to swear to preserve, protect and defend the Constitution of the United States." And then: "The president is the one elected representative of the whole American people...the only constitutional office holder with the power to speak for all of us and with the potential to unify us in the service of our national interest." It is straight from unitary theory that two of the three important constitutional powers of the presidency comes from 1) the "take care" clause, giving the president the power to interpret the meaning of law for subordinates as well as to direct them in the exercise of executive power, and 2) the "oath" clause, which obligates the president to refuse defense or enforcement of laws determined to be unconstitutional. The third, of course, is the "vesting" clause, which gives to the president executive power. And it is important for unitarians to point out that the president is the only political officer accountable to all of the people, which serves as the basis for giving the president responsibility for how laws our carried out.

Among the things she says she will do once elected president, that is different from President Bush:

• "I'll end the use of signing statements to rewrite the laws that Congress has passed..." But note she did not say she would end the practice of signing statements. She says she will end the practice of using signing statements to "rewrite the laws." But President Bush does not use the signing statement to "rewrite" law, this is what his critics charge, thus easy to say you won't behave this way. But it does not say anything about ending the practice of using signing statements.
• "I will end the practice of using executive privilege as a shield against the public's right to know and congress' duty to oversee the president." Just like the signing statement, she qualifies this. She won't end the practice of using executive privilege, just using it to blunt the public and Congress' right to know. But not an end of executive privilege in any and all circumstances, which means that she leaves the door open to use executive privilege, and when she does use it, her critics are going to charge that she is trying to hide something.
• And the cream of the crop: "I will sign executive orders ending the war on science, ordering the closure of Guantanamo, reversing many of the anti-labor provisions" of the Bush administration. But using an executive order to implement policy means that these are things she will not get the Congress to come on board with, and thus bypasses the stubbornness of Congress and implements policy unilaterally. How can that be any other thing but unitarian? She will work with Congress only to a point. Where Congress refuses to playball, she will go her own way.

I fully anticipate that if Mrs. Clinton wins the presidency, she will behave just like her husband, who used the executive branch to accomplish policy objectives once the Congress fell to the Republicans. Unitary executive theory does not say that it applies to a president who uses the executive branch agencies to block the issuance of regulations. It applies to a president who uses the executive branch agencies to secure political and constitutional objectives when faced with a Congress that won't play nice. I can't see how Mrs. Clinton is any different from President Bush, at least in the way they view the role of the president and presidential power in general.

In other news, Mrs. Clinton also continues to say ridiculous things. Apparently still wishing to emphasize how she is a "commoner" and not an "Obama-elitist," she brings up the "nobody knows the trouble I've seen" days of her youth, which is farcical:

As a young girl, I could not go to certain colleges, compete for certain scholarships, participate, if I'd had the sporting ability, in certain sports, or obtain some kind of financial aid for playing them. There were certain jobs that were closed to me and other young women. And the horizons were not quite as broad as those for my brothers. I grew up in a middle-class family, at a time when our nation was investing in the middle class.

Is she serious? What "certain colleges" was she excluded from? She went to Wellesley College as an undergraduate and then Yale for law school. What could she possibly be speaking about? Who wouldn't want that kind of problem? Then she says--and this is a hoot--that she could not get an athletic scholarship, although she didn't participate in sports? What? And then she claims that certain jobs were closed to her "and other young women." My guess is that the "other young women" had a hard time finding employment, not Mrs. Clinton--who graduated Yale Law and worked alongside hubby Bill in the Watergate investigation. If these are her definitions of hard times, who wouldn't want hard times?

The Unitary Executive Was In Da House (Senate, Actually)

Last week, the Senate Environment and Public Works held a hearing to consider the nomination of David Hill, currently the General Counsel for the Department of Energy, to be the General Counsel and Assistant Administrator of the EPA (you can't get a transcript of the hearing, but if you need a photo, the Committee is quick to oblige). This was a rarity in the Senate--that is, the actual consideration of a presidential nominee to any executive branch agency.

During the hearing, the unitary executive theory took center stage, and Think Progress (the lefty organization) was quick to distort it. Hill was asked by one of the California twins, Barbara Boxer (D. CA) what would be his advice to the EPA administrator if the President asked him to do something illegal. And Hill answered:

I believe that the courts have held, Senator, that within the unitary executive the administrator and the EPA, just as with all executive agencies, work for the President and are responsible to the President of the United States.

It is interesting that the unitary executive theory still gets mentioned within the Executive Branch given how the president has gone silent when it comes to the theory. The answer was right in line with the theory, and says something about how it has become institutionalized deep inside the Executive Branch. The theory says that the president is accountable to the people for any decision made by an executive branch officer and when the president orders an inferior officer to do something, it is not the officer to question whether it is constitutional or not. If it is considered unconstitutional, then the president must answer for it. And the theory certainly does hold all political officials accountable to the judgment of the system. The Congress has within it the means to punish a president who violates the Constitution, and if Congress doesn't live up to its responsibilities, it falls to the people (elections, changing the Constitution). But critics of the theory (who will not be critics if a Democrat wins the presidency) distort the theory. This is what Think Progress says about the theory:

The "unitary executive" theory is a formerly obscure, right-wing legal argument that asserts "all executive authority must be in the President's hands, without exception." In other words, the president has practically unlimited executive power, and no actions of the courts nor the Congress can override it. [Then this non-sequitor] Supreme Court Justice Samuel Alito is a champion of the doctrine.

The theory says nothing of the sort. It does not say that the president can do whatever he wants and no one--not Congress, the courts, or the public--"can override it." The theory starts from the premise of aggressive and vigorous interactions between the branches of government, where each must be vigilant to insure that the prerogatives of the office or institution do not decline, but instead increase. The Congress was diligent in its constitutional responsibilities during the Clinton years where he faced a Republican majority in opposition. But it was Congress that laid down and played dead once President Bush was elected, and then re-elected. And the people corrected that problem by throwing Republican out on their ears in 2006. And if the Democrats win the presidency in 2008, then perhaps the public will have finished the job.

It would be nice that my liberal cohorts would turn their attention to the public--educating them about the unitary executive and the separation of powers--so that the public will force the institutions into good behavior, and not blasting a president who continues to use the powers given to him or her by previous presidents and then remain mute when their party exercises the same powers. For example, the presidential signing statement will continue to be front and center 12:01 p.m. January 20, 2009. Will these same groups continue their ear piercing cries if it is a Democrat who takes the oath?

Signing Statements in the States

One of the great overlooked areas of research on executive power is an examination of the unilateral powers exercised by American Governors. It is clear that U.S. Presidents claim as a basis for action the powers exercised by governors. For example, presidents have long cited the fact that some 36 governors have a line-item veto, and have a long history of using it without the states sliding into monarchy. Another tool used profusely by governors is the signing statement. Much is made about the signing statements used by presidents--and in particular President Bush--without studying their use by governors. Thus important questions: How do governors use them? The same as presidents? How aware are state legislators of their use? If aware, how do governors combat their effect?

To underscore the importance of the signing statement to governors is a press release from Kansas Governor Kathleen Sebelius (D). Governor Sebelius's press release notes 15 bills she signed into law (for a total of 51 in 2008), and on the last bill, which clarifies "Food and Safety Rules and Regulations," there is a special header:

Governor Sebelius issued a signing statement for SB 557: "Though I have grave reservations about ever limiting a secretary's power to do his or her job, I have been assured by Secretary Polansky that no provision in this bill appears to limit his ability to protect the health of Kansans or carry out his duties."

This is clearly in line with the way recent presidents have used the signing statement--to qualify the bill in a way that brings it in line with the way the executive sees the Constitution. According to the press release, the bill:

...amends current law to clarify that the Kansas Department of Agriculture has the authority to promulgate rules and regulations that require food processing plants, food vending machine companies, and retail food stores to operate in a safe and sanitary manner. The bill also addresses rule and regulatory authority of the Secretary of Agriculture in the areas of meat and poultry. This bill was necessary to correct ambiguities between a 2004 Executive Reorganization Order, the Kansas Food, Drug and Cosmetic Act, and the Kansas Food Service and Lodging Act.

It appears that Governor Sebelius is protecting the governor's prerogative to supervise executive branch agents, and not the state legislature. Thus the Kansas State Legislature passes legislature that boosts the Department of Agriculture's ability to supervise certain industry, which Governor Sebelius agrees with, but notes that the legislature's bill is moot because only the governor may tell the Agriculture Secretary which industry he or she must pursue. Classic use of the signing statement--to supervise the [unitary] executive branch!

I don't know anything about Kansas politics, but I would be interested to know if the Governor's office makes it a habit of issuing a press release that draws particular attention to the use of the signing statement. Certainly worth a look-see.

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.

Testimony

Gary Kepplinger, an investigator for the Government Accountability Office, recently went to the Oversight and Investigations subcommittee of the House Armed Service Committee to testify about President Bush's signing statements in general, and more specifically his recent signing statement to the National Defense Authorization Act for FY 08.

The subject of the subcommittee investigation was the "impact of the Presidential signing statement on the Department of Defense's implementation of the Fiscal Year 2008 National Defense Authorization Act," and in attendance were the normal cast of characters: TJ Halstead, who works at the Congressional Research Service (CRS) and was an author of two CRS studies (here and here) of the signing statement; Gary Kepplinger of GAO (and whose testimony I will address below); and finally Bruce Fein of Fein and Associates and Nicholas Rosenkranz of the Georgetown University Law Center.

The Committee hoped to create another public controversy for the Bush administration by using the hysteria of a couple years ago regarding the signing statement to beat up the administration over its signing statement to the National Defense Authorization Act of 2008, of which I wrote about here. This was a controversial signing statement because it followed a veto Bush issued (where he attempted a "protective return" pocket veto) after the Congress expected he would sign. The controversy ensued when the administration and the Congress quickly worked together to iron out the problems, only to learn that Bush singled out four different provisions as constitutionally obnoxious--one because of an appointments violation, another because of whistleblower protections, another because it required the intelligence agencies to turn over information to congressional committees or claim executive privilege, and finally another because it interfered with the president's Commander in Chief powers.

The problem for the Committee is that no one paid attention. The testimony and the administration bashing was akin to the tree falling in the woods--if no one is there to hear it, does it make a sound? This at least confirms a hunch that I had back in 2006 when they were handing out Pulitzer's for exposing the signing statement, that when the election took off and the Bush administration was heading out the door, the press no longer care if Bush is issuing challenges and the agencies were following his lead (that is all the press except the Libertarian-bent Reason). But that is for another day.

Kepplinger's testimony essentially was a summary of the two GAO studies on the effect that Bush's signing statements had on agency compliance. The GAO found that in a third of the cases, the agencies failed to comply with the law. But Kepplinger and the others were there to speak about the signing statement to the current defense bill, and here is where the testimony was interesting. In the current bill where the intelligence agencies are required to turn over information to congressional committees or assert executive privilege, in the 2006 bills the same requirement was laid upon the DoD, and the information never reached the Congress. Second, and an area of consistency for the administration, where a whistleblower protection provision was placed in the legislation, the administration refused to comply then and now (and in 2002, it reached a crisis when the administration changed the language of the whistleblower protection in Sarbanes-Oxley). And regarding those appointments problems: In the defense authorization bill, Bush objected to the Commission on Wartime Contracting because it allowed the leadership from the House and Senate to select members in violation of the president's prerogative to make appointments. To date, the Commission has not come together because, as Senator Webb (D. VA) recently stated, the Congress is waiting for the President to make the first appointments. I am not sure which president he was talking about because this president isn't going to do it. According to Kepplinger, a committee that was part of their 2006 study--the "Rio Grande Natural Area Commission" that still hasn't met because the president has not made any appointments.

Kepplinger's testimony was at least a step in the right direction. He stated:

To reduce any effect signing statements may have on agency execution of statutes, Congress may wish to focus its oversight work to include those provisions to which the President objects to ensure that the laws are carried out. We note that the Attorney General is required to submit a report to Congress of any instances in which the Attorney General or the Department of Justice implements a formal or informal policy to refrain from enforcing or defending a federal law or regulation on the grounds that such provision is unconstitutional. This reporting requirement also extends. albeit more narrowly, to the President himself with respect to any unclassified executive order or similar memorandum, and to the heads of executive agencies and military departments that establish or implement a nonenforcement policy.

I am puzzled at the timidity Kepplinger displays at the outset: "The Congress may wish to focus its oversight..."? We have great evidence from the past--even from this Bush administration--that where Congress shows a willingness to challenge the president, the president will often back down. We saw that when Senators Grassley (R. IA) and Leahy (D. VT) went after the Bush administration's interpretation of the whistleblower protections in Sarbanes-Oxley. In addition, back in the 1980s, the Reagan administration attempted to force agency noncompliance even in the face of two federal court orders against them, and when the House Judiciary Committee commenced hearings on cutting off appropriations for the Department of Justice, the Reagan administration quickly capitulated. I suspect the GAO's timidity comes from dealing with the wrath of Congress in the first term after the GAO sued the vice president over the Energy Task Force meetings. Given the close divide of Congress today, who knows when the Republicans might return and take it out on the GAO for demanding that Congress fight the president.

The second suggestion is puzzling. The law that Kepplinger refers to was part of a DOJ authorization bill in 2002 that required the Justice Department to inform Congress whenever the president refused enforcement or defense of the law. This was an update to a 1978 law that required Justice to inform Congress whenever the president refused to defend the law in federal court, then it had to give the Congress the opportunity to hire its own legal team in order to defend the law (placed into the law books by former Georgia Congressman Elliot Levitas, who was infuriated over the Carter administration's refusal to defend legislative vetoes). Here is what puzzles me. Nowhere in any of the GAO studies do they actually attempt to determine whether the Bush administration has complied with the 2002 law (by the way, when President Bush signed that law, he challenged this particular provision--and many others--by claiming that it violated his duty to supervise the unitary executive branch and his right to withhold information that "could impair foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties." Take your pick!). Now why would the GAO go to the trouble of determining compliance without also asking around the Congress whether anyone has gotten the "411" from the DOJ? Or they could of asked me, and I could have told them that based upon a FOIA request that Justice fulfilled, they have not informed Congress of any nonenforcement or non-defense actions by the Bush administration, but they did give the Congress a bunch of information on that lousy Clinton administration.

But then again, Kepplinger concludes that he cannot tell Congress that there is a connection between the signing statement and agency noncompliance. Why? Because they never asked anyone while doing this study. But then again, they never say--and apparently no one has asked the question--if agency noncompliance is not a result of the president's signing statement, then what is it?

The Man Tough Talk

Remember last month and President Bush's tough talk regarding the transfer of power in Cuba, stating that he would not stand for "staged elections that the Castro brothers try to foist off as being true democracy"?

Contrast that with the comments coming out of the White House today in reaction to the elections in Russia, where human rights groups, election monitors, and journalists have roundly condemned as unfair and undemocratic. Here is the Q&A today with the press gaggle aboard Air Force One, and being led by stand in press secretary Gordon Johndroe:

Q Gordon, does the President feel that the elections yesterday in Russia were fair and free?

MR. JOHNDROE: Dimitri Medvedev is now the President-elect of Russia, will soon be the President of Russia. The President looks forward to working with him. It's in our mutual interests that the United States and Russia continue cooperation in a number of areas, including counter-proliferation, counter-terrorism, fighting transnational crime. So I expect that in the coming days the President and Mr. Medvedev will have a chance to talk.

Q Right, but the President has been very eloquent in the past about the need to hold free and fair elections all around the world. That's not quite the question I asked. What does he think about how the elections went in Russia?

MR. JOHNDROE: I think the United States position in the lead-up to the elections was clear. But now I'll refer you to election observers who have made some comments about the election. They're also continuing to take a look at it. So we'll wait to see what these observers have to say.

Really grabs ya, doesn't it? I am sure the new Russian government--which increasingly has modeled its governing style on either the Tsars or the Bolsheviks, or some combination of both--has sat up and taken notice. Say what you will about Iraq and the failed effort to punish the terrorists who attacked us on 9/11--the next big issue that will define the Bush administration foreign policy failures is its complete lack of resolve to counter what has been happening in Russia over the last several years, starting with Bush's looking into the soul of Putin and seeing an honorable man. What has happened in Russia will consistently hang as a black cloud over the Bush administration's commitment to defend democracy wherever it was blooming in the World.

Senator McCain should think twice about how closely he wants to align himself with that.