It Is About Time

"Have you heard the good news?" This was the question that a character on "The Sopranos," who briefly dated Tony's sister Janice, would ask anyone he came into contact with. The good news for him was the message of the Lord.

The good news for Republicans and Democrats alike (and even for President Bush if he is too stubborn to see it himself), is the resignation of attorney general Alberto Gonzales, who announced his resignation this morning (although officially gave it yesterday while he and his wife dined with the Bush's--can you imagine what an awful meeting that was? Do you hand in your papers at the beginning or end of the meeting?). Gonzales, who if you recall was initially President Bush's White House Counsel before stepping into the empty AG post at the start of Bush's second term in office. Gonzales was always a polarizing figure, yet won confirmation by the Senate--a major accomplishment given the number of recess appointments that currently exist. His recent troubles stemmed from his role in the firing of a few US attorneys who the Democrats claim were given the boot because they would not play political ball with the administration. Gonzales has gone to Congress in an effort at damage control, and in every appearance he has made the situation worse than if he had not go, which begs the question of why the administration even allowed him to go after his disastrous first appearance?

What is clear about Gonzales's tenure as AG is that the DOJ is in disarray, and things are not likely to get any better any time soon. It is crystal clear that Gonzales saw the AG as another type of White House Counsel, when clearly it is not (though this isn't the first time where the functions were blurred). The AG also has to represent US law even if it looks poorly upon his or her boss. Remember the relationship that Clinton had with his AG, Janet Reno. There were instances where Clinton wanted her to act differently than she did. So for the next AG, look to questions of political independence.

Which brings up another point--the next AG. It is likely that the problems within DOJ (low morale, political "camps") will not be dealt with by a Bush appointee. Today, Jeffrey Rosen on NPR noted that the current DOJ is filled with people who have divided loyalties and as such, will not be in the same room with one another. And it is easy to see that the next Bush appointment won't ease those problems. Furthermore, the next Bush appointee likely will be a recess appointee. The Senate Judiciary Committee is likely to pin confirmation on information that it wants, and the president simply doesn't want to give up information. And with months left in the presidency, what incentive does he have to play ball anyway?

Thus the chief law enforcement officer in the chief law enforcement agency will be non-functional until after January 20, 2009. That seems to me to be a bigger question than what is being asked so far.

FOIA Response

As I have discussed before, I had sent two FOIA requests to the DOJ asking them for copies of any communications they have had with the Congress regarding the president's refusal to defend or enforce provisions of law. And in both of this instances, I have not had an answer. In the first instance, I requested information back in 2001 on any refusal to defend, as that was the state of the law at the time. I never heard back after the initial response telling me that they received my request. In 2002, the law changed as a result of the administration's narrow interpretation of the whistleblower protections in the Sarbanes-Oxley law. Senator Patrick Leahy (D. VT) added language to the Department of Justice Appropriations bill that required the administration to inform the Congress when ever it refused to defend or enforce the law. So I sent another letter asking for information on either of these, and I heard back from them that they needed to take more time. That was over a year ago, and I chalked it up once again that I would not hear a thing.

And then this week, the DOJ surprised me and sent an answer to my request, although I am not sure that it is what I was looking for. The letter, from Carmen Mallon, the Chief of Staff, is titled "Report on Enforcement of Laws: Policies Regarding the Constitutionality of Provisions and Non-Acquiescence." To my knowledge, there is nothing like it available online, although I will allow you, dear reader, to prove me wrong.

The letter is broken down into two parts, with several subsections. The first part outlines "policies regarding the Constitutionality of Provisions" and the second part outlines "Non-acquiescence Determinations." So here it is--"a description of policies not to enforce or defend federal provisions on the ground they are unconstitutional." Now I did not ask "for descriptions," I asked for actual refusals. So this could very well be a slippery legal trick in case someone ("Ahem--Congress??) decides to find actual non-enforcement (say, like the GAO, for instance). The DOJ can always say--we never told him that we were giving actual orders of non-enforcement--our letter clearly say we were describing the kind of policies that generate non-enforcement demands. My apologies. I am getting a bit off track.

1. The administration would not enforce any policy that makes it unlawful to broadcast any ad for any game of chance (lottery, gift enterprise, etc.). The administration argues that the Supreme Court ruled, in 1999, that this restriction (18 U.S.C. 1304) is unconstitutional, and there the "Solicitor General determined that...[it] could not be applied to truthful advertisements..."


2. The administration would not enforce any policy that makes it a crime for anyone to send out information, via computer or otherwise, information on how to obtain an abortion (18 U.S.C. 1462(c). The letter referred to a Clinton-era decision arguing that the policy was unconstitutional and would not be enforced.

Subsection B deals with decisions not to defend laws deemed unconstitutional.

1. P.L.. 102-393, section 633. This law sought to deny any distiller from using the name "Crazy Horse" on their liquor. A district court found the law unconstitutional, and the Solicitor General refused to appeal it.

2. 29 U.S.C. 2613 (a)(1)(D)--the administration refused defense of the "abrogation of Eleventh Amendment immunity" related to the sick leave provisions of the Family Leave act.

3. 11 U.S.C. 106(a)--this section dealt with the Bankruptcy code and its impact upon states and their agencies. In a Clinton-era decision, "at least five courts of appeals" found the section unconstitutional, and Clinton's SG refused to appeal to the Supreme Court.

4. 26 U.S.C. 4121--this section placed a tax on coal, and again, in a Clinton-era decision, a district court held the provision unconstitutional "as it applied to sales of coal to foreign customers," and the SG decided not to appeal.

Part II, which dealt with orders to disobey a court ruling--called "non-acquiescence determinations." The administration is only obligated to report non-acquiescence of appellate and Supreme Court decisions, and not of federal district court decisions because they "are not binding precedent."

The only action listed in the letter is a decision that arose from the "Coal Industry Retiree Health Benefit Act of 1992," where the 6th Circuit found the Commissioner of Social Security lacking the authority to make certain liability decisions. From there is a list of conflicting decisions to give proper guidance, and thus the order to simply "do nothing."

Nearly all of this deals with actions from the previous administration, and not one says anything of relevant to the numerous challenges made since President Bush took office in 2001. Nor does any address the conflict with the GAO findings of non-enforcement in appropriations bills in 2006.

See what you can make of it.

It Picqued My Interest--Did It Yours?

I was speaking via email today with Patrice McDermott of the organization Open the Government regarding Bush's recent signing statements. Since last Thursday, Bush has issued three new signing statements, yet even for seasoned "signing statement" watchers, they were not easy to catch, which I suspect is deliberate. Here is why.

If you check out the News site at the webpage for the White House, you can see why. If you look at the most recent signing statement, which occurred yesterday the 9th, there are more than a dozen hyperlinks on that news day alone. So you go looking for the signing statement, you look at what should be the most obvious link to the signing statement--"President Bush Signs into Law S. 1099," yet clicking it, all you get is the following:

On Thursday, August 9, 2007 the President signed into law:
S. 1099, which extends Federal Employee Health Benefits to United States citizen employees of the Roosevelt Campobello International Park Commission.

If you make it a habit of checking the "News" page each day, you will find that the press office at the White House put one of these links whenever the presidents signs a bill into law. They are not a signing statement, but rather a signing "announcement." So for the seasoned veteran, he or she may have clicked the link above, saw that it was an announcement, and then moved on. Even if that doesn't get you, on the news page for the 9th, there are two links titled "President Bush Signs America COMPETES Act (the clever acronym for the bill). There are also two links for "Fact Sheet: America Competes Act (without the All Caps), a link for a bill that renames a post office, and some other miscellanea mumbo jumbo. If you click the link for "President Bush Signs America COMPETES Act," you find a similar announcement for the link to signing S. 1099. Only if you click the second link, which only slightly alters the first, will you find the actual signing statement. Seems like a lot of stuff crammed around the bill signing statement to be attributable to mere chance, don't you think? And if you continue in earnest to find the actual signing statement, you will find that it is of the garden variety rhetorical statement and not of the challenges which Bush is so famous for. So you may simply just give up looking, which of course is precisely what the administration wants you to do. Stop looking so they can go back to ostentatious challenges in bills of all sizes and sorts (of course we have not gotten to the big appropriations bills yet). So if you want to aggravate the administration, then continue clicking all the links of every page that mentions the fact that a bill has been.

Now the rhetorical signing statements. The three signing statements issued since last week have all been rhetorical signing statements. Remember that a rhetorical signing statement is designed to catch the attention of a particular audience--press, Congress, interest group, and/or the public. Rhetorical signing statements generally say something about the bill and then say good/bad things about Congress. And these three did not disappoint. In the bill under scrutiny here, President Bush throws in a phrase that always gets Americans humming--Bipartisan: "This bipartisan spirit of cooperation continues with the legislation I signed." But a paragraph later, he uses the rhetorical portion as it was intended:

I am, however, disappointed that Congress failed to authorize my Adjunct Teacher Corps program to encourage math and science professionals to teach in our schools. I am also disappointed that the legislation includes excessive authorizations and expansion of government. In total, the bill creates over 30 new programs that are mostly duplicative or counterproductive -- including a new Department of Energy agency to fund late-stage technology development more appropriately left to the private sector -- and also provides excessive authorizations for existing programs. These new programs, additional requirements and reports, and excessive authorizations will divert resources and focus from priority activities aimed at strengthening the basic research that has given our Nation such a competitive advantage in the world economy. Accordingly, I will request funding in my 2009 Budget for those authorizations that support the focused priorities of the ACI, but will not propose excessive or duplicative funding based on authorizations in this bill.

In one paragraph he jabs at Congress for cutting funding that would help American children to be more competitive in math and science--two areas where our children lag way behind other advanced industrialized nations--and secondly he throws that right hook about costly and unnecessary additions that stem from Congress's love of pork (and something he rarely if never complained about when he signed a number of pork laden bills passed by the Republican majority). And don't think that these are jabs that go unnoticed. Not long after President Bush signed the bill did an organization in support of it send out a press release of its own declaring victory for their members.

An organization known as the "Council on Competitiveness" (which shares the name of a White House entity in the Bush I administration that was chaired by VP Quayle) sent out a press release titled "President Signs America COMPETES Act, Major Step Toward National Innovation Agenda." This warms the heart of political operatives inside the Administration who can feel safe in the knowledge that their statement hit a target.

So in conclusion, the theme of this post is as follows: Nothing this White House--or any recent White House--is done for no reason. The decision over what type of message cast as part of the signing statement is the subject of intense inter-office deliberations (in fact, in 1985 it was because someone inside the White House removed a DoJ signing statement that the Reagan administration actually discovered its importance), which is why the president is so aggressive in protecting these inter-office memos. And the decision to provide cover for the signing statement is also a calculated decision designed to throw the scent off the signing statement.

Is This Any Way To Choose A President?

You may have heard that the 2008 primary campaign season has just gotten sillier. It all started awhile back when a number of states--more than 20 in all--moved their primary election date to February 5, 2008.

Today, South Carolina announced that it will move its presidential primary to January 19--ostensibly to preserve its "First in the South" title. We have also heard from Iowa and New Hampshire, who are only trying to preserve their "First in..." titles. This move by South Carolina is set to cause New Hampshire and Iowa to hold their primaries in early January (even possibly on New Years Day) or after Xmas--the chance that we will have a primary to select delegates in a different year than the actual presidential election.

I have argued elsewhere that this is the worst possible way to select a president. The primaries happen so fast that it keeps most Americans from registering their vote. Why? The typical voter needs a particular informational level to head to the polling place and cast their vote. The reason why more Americans vote in the presidential general election than any other election in the United States is because of the massive and sustained information blast leading up to the November vote. This is why the real general election begins following Labor Day--it is close enough to the general election to allow the typical voter to satisfy his or her informational needs. The reason why few people vote in a primary election is because it happens so far in advance of the general election and is largely over before March that most are turned off to the process. This is why primaries are dominated by the wings of the Democrat and Republican Parties. Holding a primary after Xmas or on New Years Day will not induce the typical American voter out of his or her house.

This "First in the Nation" nonsense has nothing to do with preserving an historic place in presidential elections. Like nearly everything else in American politics, it has everything to do with money. The amount of money poured into the first states is enormous--so much that Iowa and New Hampshire factor it into their budget come a presidential election year. Thus all states want a slice of that pie--hence this rush to be first.

The national political parties (DNC and RNC) have threated to block any delegate from a state that moves their date forward. For instance, the Washington Post notes that the "RNC can block half of a state's delegates to the national convention" for moving their primary date. The DNC has made a similar threat. This apparently has not struck fear in the states that are moving their date forward. Most do not believe that, come Convention time and the need to heal wounds, the national party will follow through on its threat.

Not all believe the compressed primary/long general election season is a bad thing.

Jonathan Rauch, the superb reporter/columnist at The Atlantic Monthly (as well as the National Journal) argues (sub. req.) that the compressed 08 primary season may be in the best interest of all Americans, and not in the worst interest.

Rauch suggests it works in our interest in the following ways: First, it allows more time to get to know the nominee in the general election. He uses Barack Obama as his example. Obama "entered the race with a record of inexperience no other serious contender could match." If Obama wins the nomination, he would have nearly 3/4 a year to get to know him, "an insurance policy that the country's most recent experiments with inexperience--Jimmy Carter and George W. Bush--suggest is wise."

This only holds true assuming that the average voter is already following the election, recording the positions of the candidates, and then sifting through the pros and cons to come to a rational decision. Thus in Rauch's analysis, more time would make perfect sense. The problem is that this is not the typical voter.

The larger reason that Rauch likes the compressed primary/long general election model is that it comes in close proximity to "British-style parliamentary politics: the shadow government." As he notes, in parliamentary systems like Britain, the elections happen over the span of weeks, yet candidates announce their intentions to lead years in advance. And these leaders also select "the men and women who would ascend to ministerial" positions should their party win the majority in an election. Thus in this type of system, the public gets to know the incumbent, the challenger, and knows what type of government would be in place since the inferior officers are already selected. To borrow an English phrase: Bullocks! Britain has a strong party system which makes sure that voter interest is kept high. We have nothing that works in a similar way.

Rauch is overly optimistic about the long general election season and its ability to give us a better president. He argues that in the long general election, the candidates will have more time to put in place the people who would fill the top positions. As it is now, once the candidate wins the general election, there is a mad scramble over an 11 week period to staff the Executive Branch. The fact of the matter is, the nominee already, quietly, picks who would fill the top positions. He just doesn't make that information public. In 1992, the Bush campaign cause the Clinton campaign to briefly spin out of control when Bush charged that Clinton was already "measuring the curtains" in the White House. The underlying message was the Clintons were drunk on hubris and were cock-sure they had it wrapped up, which they hadn't. Americans like a race, and they like an underdog. If a candidate assumes he or she has won, there is the prospect that some voters (and in close elections "some voters" matter a lot) will throw their support to the underdog. Hence the Clinton campaign changed strategy to make sure Americans understood that they--and not the incumbent Bush--were the underdogs.

I continue to hold hope that one day we rid ourselves of the primary and allow the political parties to make the nominee decision for us. This seems autocratic to most Americans, but in the end the party--recognizing the importance of the Independent--will produce a nominee that is more a centrist than an extremist. It also does away with the general election advertising that uses primary campaign rhetoric against the opposition. And it undermines the importance that the press has in this decision--and for my money, that is reason enough to do away with the primary.

Finally A Signing Statement

Finally the President issued a signing statement, the first in relation to a bill passed by the new, Democratically-controlled Congress. The signing statement is largely rhetorical with no substantive challenges, a rarity for this President. It is rhetorical because the president spends time criticizing Congress for not getting him important bills yet--the same challenge he issued yesterday during his brief press conference.

There have been some who have suggested that the reason that the President has not issued a signing statement challenging provisions of the bill is because the Democrats are in control and watchful of what he is doing. The larger theoretical literature on unilateral action suggests that the president is not likely to rankle the ire of Congress when it is collectively united behind a particular position. Thus previous presidents have been mindful of just how far they could push the signing statement, always approaching that threshold without stepping over it. The fact that this President could issue so many in the last several years of his presidency is because the Republican-controlled Congress didn't mind the challenges, which is largely true.

But the reason why President Bush has not issued a signing statement challenging the constitutionality of provisions of the bill he has just signed is because he has not been given any substantive bill yet. Nearly all the bills the President has received are renaming post offices or court houses (one court house in Missouri has been renamed in honor of Rush Limbaugh). Generally speaking, most of the significant signing statements for this president or any president coming between August and October, as the appropriations bills begin to reach the president's desk. So be on the look out--the challenges are coming!

Misplaced Energy

From time to time I pay attention to discussions about the unitary executive and the presidential signing statement. What I find, more often than not, is the misguided sense of what the unitary executive is and where it came from, and how to best counter it. More often than not, the unitary executive is connected to the imperial presidency (wrong), that it only applies to Republican administrations (wrong), and that the only way to check it is to impeach the president (wrong).

Case in point is this gathering place for liberals talking about what sorts of questions should be asked to the candidates running for the presidency in 2008. All of them talking to one another about bringing down the unitary executive. Yet what happens when everyone believes all the things about the unitary executive that I discussed above--all the wrong ideals concerning what it is about? What happens is you perpetuate the myth, all the while allowing the centralization of power to move forward unchecked and unfettered. And allowing the real culprit--Congress--to escape attention.

First off--if you ask the candidates, in whatever forum, if their administrations will behave like the current on. "We have a right to know if a President Romney or Guiliani...would continue to assert Executive Privilege over questionably legal and national security matters. Whether signing statements will become the norm. What will happen to all of the laws that Bush issued a signing statement for. The Executive Orders that were signed allowing the Vice President to declassify information, or for the President to declassify information at will and without using the historically proper channels. To continue conducting itself in secrecy...We also have a right to know whether a President Edwards, Obama, Clinton (or Richardson or Biden or anyone else) would repeal these Orders and other interpretations of the law. Would President Clinton defer to the judiciary or the legislature in matters that prior Presidents have? Would President Obama issue a signing statement for a law that would be passed by a republican controlled Congress if he didn't agree with it? Would President Edwards have the US abide by the International Criminal Court?"

I will tell you their answer. They will reject all of the claims about using signing statements, executive orders, or declassification of information and promise a White House that respects the Constitution. Remember back in 2000 all of the stump speeches made by Governor Bush? "I will put my hand on the Bible [and] swear to not only uphold the laws of our land [and] I will swear to uphold the honor and dignity of the office which I have been elected, so help me God."

But as I have said before--the key tenets of the unitary executive have become institutionalized inside the executive branch, and the president is a cog within that institution, not above it. Once he or she is elected, they will take hold of the levers of that institution and will behave much the same way as their predecessors. Oh, probably not as brash as the Bush presidency, but still in a way that advances executive prerogatives.

As for impeachment--I am not sure what it will gain. First off, it is doubtful that the process would play out before Bush's time in office expires. Secondly, the American public (despite whether ardent liberals believe they represent the silent majority) has no appetite for impeachment. They didn't in 1998-1999, and they don't know. If the Democrats really want to demonstrate to the American people that they do not know how to govern while in control of Congress, then they should go ahead with impeachment. Instead, they are doing what they should be doing--dragging members of the executive branch before them and pushing legislation that challenges executive branch actions.

But this is what happens when you get groups of like-minded individuals who come together in forums or other online groups to discuss political action. You tend to skew towards the more extreme and outspoken members of the group, something Cass Sunstein called "enclaved deliberation."

Fighting the Good Fight

Political Scientists Louis Fisher and David Gray Adler have penned a short article for this week's issue of Legal Times (sub. req.) challenging the commonly held belief that the Courts are given the final word on the meaning of the Constitution. This follows an article that appeared in the journal PS: Political Science & Politics, the more readable journal published by the American Political Science Association. The article, by Winfield Rose, looks at how Marbury deliberately misquoted the Constitution in order to establish an independent power of the courts to interpret the power of the Constitution. As Rose concluded, Marshall established the Court as a co-equal branch in the interpretation of the Constitution and not the final arbiter.

In the current piece by Fisher & Adler, the two begin by arguing that at the time Marbury was written, Marshall didn't dare think that the Court should have final say regarding constitutional interpretation: "This was not a comfortable time for judges. U.S. District Court Judge John Pickering was impeached a week after Marbury, Justice Samuel Chase would be impeached the following year, and Marshall knew he too was within congressional sights." Marshall, they argue, "fully understood that he was part of a political system that required conversation and shared construction among the branches of government, not a system that exalted judicial supremacy." They also quote a number of Supreme Court Justices who held the view that the Court was never meant to be primus inter pares.

Both provide numerous examples of instances where the Court was overruled by the other constitutional powers in our political system--Congress, the states, and the American citizen. For instance, despite the fact that the Supreme Court, in 1983, declared that the legislative veto was unconstitutional, the Congress and the president continue, via informal agreements known as comity to enforce the legislative veto, and presidents continue to object via signing statements.

Those of us who believe that the Court is one among many need to continue to push this case to our colleagues and to the American public. We should start by revising the way our students are taught about the way the Constitution works. The reason that most American believe judicial review gives the Courts the final say is because that is what our textbooks say. It is our obligation to change that.

Give Me More

Are you looking for more information on contempt citations against executive branch officials than I am giving you? Then head over to the Federation of American Scientists' page on Congressional Research Service reports. There you will find this 68 page dandy on the history, practice, and conflicts of the contempt of Congress citation in all its glory.

Stay gold, Pony Boy!

For Pete's Sake

Salon's Alex Koppelman has analysis over the executive privilege controversy brewing between the White House and the Congress, ratcheted upward when last Friday the Bush administration issued a press release directing the DoJ to not act upon any contempt citation handed to it by the Congress (by the way, if you did not catch AG Gonzales before the Senate Judiciary Committee today, you missed a pretty pathetic performance (alliteration, I know). Andrew Cohen at the Washington Post has a nice summation of the performance.

Koppelman's article is confusing given the promise that it had to place the unitary executive theory into context for the typical reader. Instead, the article engages in the same obfuscation of the theory as any other political opponent of the current administration that seeks to tie the theory to the current administration.

He writes that the current episode, "to some," seems to stem from the administration's grasp upon the "radical 'unitary executive' theory, which exalts the power of the presidency over the other branches of government and has played a role in many controversial administration decisions." He then demonstrates how attorneys from previous administrations, including the Clinton Justice Department, do not see the current Bush position on the controversy as that controversial. The reason why they do not see it as controversial? Well because the theory has been institutionalized since the Reagan administration inside the JD, if not elsewhere inside the Executive Branch. The theory, to restate, obliges the president the power to supervise subordinate officials, to hire and fire at will, and to preserve, protect, and defend the Constitution at all costs. Thus it is not seen as unreasonable that Justice officials would object to an order from the Congress telling US attorneys who they should or should not prosecute. The attorneys, as you know, fall under the supervision of the president, not the Congress. However, the theory, and those who believe in it, recognize that there is a political process that runs parallel to the constitutional process, which means that sometimes, taking an absolute and unbending position on principle may cause greater institutional damage than negotiating a compromise. And as will happen in the current episode, as it has in the past, is the administration and the Congress will work out a deal that satisfies both sides.

And not to beat a dead horse, but it is these ad hoc, off the cuff definitions that continue to obscure what the unitary executive is. According to Koppelman, the UE "exalts the power of the presidency over the other branches of government..." Nothing could be further from the truth. In fact, the UE was originally meant to be a defensive theory of presidential power, designed to protect the institution of the presidency from an over zealous and aggressive Congress. As an example, witness the OLC opinion written in 1989 by William Barr, who led the OLC under the first Bush administration. Titled "Common Legislative Encroachments on Executive Branch Authority," the opinion outlines, for the various agencies, commissions, and departments, ten different ways that the Congress has impeded Executive Branch prerogatives. Just for your references, the ten:

1. Interference with the President's Appointment Power
2. Hybrid Commissions--those commissions with both executive and legislative functions
3. Attempts to Constrain the Removal Power
4. Micromanagement of the Executive Branch
5. Attempts to Gain Access to Sensitive Executive Branch Information
6. Concurrent Reporting Requirements
7. Legislative Vetoes
8. Requirements that Legislation be Submitted to Congress
9. Attempts to Restrict the President's Foreign Affairs Powers
10. Restrictions on the President's Power to Make Recess Appointments

Thus the theory continues to assume that there will be vigorous interactions with the other institutions, but primarily the Congress. It is up to the Congress to equally aggressive, and that clearly has not been the case during most of the Bush administration. I will give that there has not been an administration that has been so open in the way it protects prerogatives, and this is likely because of the presence of Cheney, who is psychologically wired to defend the presidency, probably moreso than any other political figure in the country, including living former presidents!

Since this theory of power is going to be with us for the foreseeable future, isn't it important that opinion leaders like Mr. Koppelman and others get the theory right, and not use throwaway lines radical or as others, imperial?

Circumventing the Veto

It appears that Senator Arlen Specter (R. PA), with John Kerry (D. MA) as a co-sponsor, has decided that the better route for his bill limiting the use of the signing statement by Federal and State courts. Specter has decided to envelope his bill into the DoD authorizations bill for the next fiscal year (H.R. 1585).

Senate Amendment 2021 to HR 1585 is precisely the same as his stand-alone bill. And it appears that it will have the support of the House given that Specter found a Representative to introduce a companion bill there. So far, the administration has not responded to it, but I am sure they will.

Given the purpose of this bill, it is not likely to have much of an effect on the influence of the signing statement given that it only focuses upon the courts, and not the bureaucracy.

I will keep you posted.

The Hits Keep A Comin'

You have to love this administration and its tendency to push the boundaries of the Article II powers beyond its limits. Just a couple of weeks ago we were debating whether the vice-president is an executive branch official and today the administration handed Congress a whopper--that an executive privilege claim trumps a contempt of Congress complaint. I am still puzzled over the administration's strategy.

The Congress, as you recall, has moved on a contempt of Congress claim against former White House Counsel Harriet Miers and White House chief of staff Joshua Bolten for their role in the Justice Department attorney firings. The new Congress had moved to uncover why these select US attorneys were fired, amid allegations that their removal came as a result of their unwillingness to play ball when asked to go soft on Republicans under investigation and to pursue Democrats who were not. When they refused, they were fired, or so the allegation goes. The administration first advanced a constitutional argument that the president may hire and fire whomever he chooses. The only caveat is that the Senate gets to confirm many of those who are hired, but on the firing question, the president's role is nearly absolute. Why not totally absolute? Because their is a political process that is also occurring that can either support or attack the president's argument--and to the American public, and the Congress--firing just a few of the 94 attorneys looked suspicious. So the administration fell back to another constitutional position--assert executive privilege, which closes the investigation into Executive Branch matters. But it is also not absolute, and most recently the Supreme Court has not looked kindly on broad claims of privilege.

This brings us to today. When Congress votes a contempt citation, it is up to the U.S. Attorney for D.C. to prosecute the citation. But the U.S. Attorney comes under the direction of the attorney general, who comes under the direction of the President of the United States. And the President has told the U.S. Attorney that he may not bring this charge forward. So what can be done?

We are not in uncharted waters. Back in 1983, the Congress was investigating the EPA director Anne Gorsuch-Burford and her lack of enforcement of Superfund violations. The Congress believed that the Reagan administration was purposefully not pursuing environmental abuses as a payback to corporate contributors, something the administration denied. The Congress wanted internal memos sent between Gorsuch-Burford and the White House, which the White House refused to provide. When Burford-Gorsuch was brought before a House Committee, she claimed executive privilege over the memos and Congress responded with a contempt citation, making her the first high ranking official ever to be charged with contempt of Congress. The Congress turned over the citation to the U.S. Attorney in D.C. and the DoJ refused to act on the citation. Instead, DoJ decided to file a civil lawsuit asking the federal district court to throw the case, reasoning that the executive privilege claim trumped the contempt citation (sound familiar?). The case, U.S. v House of Representatives was dismissed under the "Political Questions" Doctrine, arguing that it is inappropriate for the Judiciary to settle disputes between the Article I and II branches of government (these cases are a no win for the federal judiciary, which is really why they bow out).

However, the Congress (and the media) beat the administration up as acting above the law, and once public heat got too intense, the administration backed away and made a compromise where the Congress got to review the memos, but in private and without staff or the ability to take notes. Again, the political process trumped the claim of constitutional prerogative.

In the current case, the Congress would do well to blow the dust off the Burford-Gorsuch controversy and use the political process to mediate the constitutional controversy. The Congress can also turn up the heat by refusing to fund the DoJ--or cutting off any funds for the DoJ to pursue the case against the Congress. But that should come after the Democrats have brought supernova heat against the Bush administration, which will cause a loss of Republican support in Congress as well as outside of D.C. One interesting caveat. The administration, should it decide to take this to court, knows that it won't be around when the case is finally decided. It could be thinking about dumping a mess into the lap of the next president, who, given the way the money has been flowing, might very well be a Democrat. Just a thought.

The Companion Piece

A couple of weeks ago, Senator Arlen Specter introduced the "Presidential Signing Statements Act of 2007," (S. 1747), which is mostly an update of the bill he introduced a year ago, the "Presidential Signing Statements Act of 2006." Now there is a House version of Specter's bill.

Congresswoman Carol Shea-Porter (D. NH) has introduced HR 3045, "The Presidential Signing Statements Act of 2007." The bill is identical to Specter's bill, complete with all the problems.

In her press release, she includes all sorts of incorrect facts. First is the rhetoric, which continues to ignore the larger problem that the signing statement has become an institutional prerogative of the executive branch, used systematically for over 25 years. She writes:

President Bush has trampled on the constitutional separation of powers through his abuse of signing statements. He has attempted to usurp power that was given to the Congress, not the President, and has severely bruised the system of checks and balances. This is an insult to the founders of this country and to the American people, and it cannot be allowed to continue.

He has attempted to usurp power? She later gives us a lesson in constitutional process: "Every third grader learns about separation of powers and checks and balances--the Congress writes the laws and the President signs them...nowhere in the Constitution does it say that the President can approve part of a law and ignore the rest." Yet in one of her examples of a signing statement used to challenge a provision of a bill, she highlights a legislative veto provision as an example of the usurping of power. Yet the the legislative veto orders the executive branch agencies into a particular course of action without backing it up by law. If we take her sterile view of the process, Congress is supposed to "present" the president will a bill for his consideration.

In the history of the signing statement, she claims:
* The first president to use the device was Jackson (wrong).The first was Monroe;
* As of April this year, Bush has issued 127 signing statements to challenge over 700 specific provisions of law (wrong). As of April this year, Bush has issued 150 separate statements to challenge 1,149 specific provisions of law;

She also lists a number of signing statements where there is no evidence that they were used to influence implementation. She uses, as her source, the ABA report from last summer and not the GAO report from this summer.

This is precisely why Congress is both behind the curve on the signing statement and unable to come up with legitimate counters to the use of the device. I have contacted a number of congresspersons offering my assistance in helping them understand what the signing statement is and how it is used, as well as acting as a sounding board for proposed reactions to the use of the signing statement, and to date my phone grows dusty from lack of use. At some point I am going to have to wash my hands of them!

Should We Be Concerned?

Congress is flexing muscles that have nearly atrophied from the previous six years of not standing up to the Bush administration, and like all experiments, some are good and some are just bad. The thing that leaves me scratching my head is why Congress does not seem to want to look to its past at what has and has not worked. Furthermore, Congress is approaching each challenge as if it is not related to one another to paint a larger picture of presidential power.

On the issue of the presidential signing statement, Senator John Kerry, apparently giving up aspirations of becoming president, has signed on to Senator Arlen Specter's terrible bill aimed at curbing the use of the signing statement. As I noted earlier, Senator Specter has updated his bill from last year and continued his approach at curbing the use of signing statements by Federal and State courts, even though the GAO report (which he refers to in his bill) found that the courts rarely rely on the signing statement and when they do, it isn't for any meaningful purpose. Furthermore, Congress needs to sit back and think to itself: Would it allow a judicial decree to stand that basically told the institution what pieces of information it could or could not rely upon in the course of the legislative process? Clearly that would be laughable, yet why does it now think that it can tell judges what sorts of information they can and cannot rely upon in the course of making a decision regarding the meaning of law? Other than the same knuckleheads who found it an "interesting constitutional conundrum" regarding where the vice president is situated--in Congress or the Executive Branch--most of us have long concluded that the president is a participant in the legislative process, and therefore his understanding of the law matters, and should be considered when judges seek to find the legislative intent or purpose. As to how much it matters, let me give you a story. Back in the late 1990s and into 2000, when the Clinton administration was rocked with controversy over the security of our nuclear secrets contained within our nuclear labs, the Congress wanted to establish an office inside the Department of Energy that would be semi-autonomous and responsive to the Congress regarding our nuclear secrets. The Clinton administration negotiated a deal that the individual appointed to this position would ultimately come under the direction of the president--mind you, these same Republicans that have been up in arms regarding the president's sole authority to hire and fire whomever he wants and for whatever reasons as part of the DoJ attorney firings were also working back in the late 90s to create an executive officer free from presidential control. That sleight aside, in Conference, the Republicans reneged on their deal with the Clinton administration, and put in place an individual who could only be removed due to "inefficiency, neglect of duty, or malfeasance in office." Again, Republicans placing fairly stringent qualifications on the president's right to control inferior officers. When President Clinton signed the bill, he simply understood "the phrase 'neglect of duty' to include, among other things, a failure to comply with the lawful directives or policies of the President," meaning if President Clinton told the new agent that he could not share certain information with Congress without first getting clearance from the president, and the agent disobeyed, the president could fire him or her for insubordination. Now Congress could have sued President Clinton for his interpretation, but they didn't. Why? Because Clinton, as a participant in the legislative process, made a deal in good faith with the Congress where opposing parties shook hands and, without any chance to reply and solely for political purposes (Clinton diminishing the power of the presidency by pissing away executive prerogatives), Congress could be found in the wrong. No reason to take the chance of having the courts establish a precedent against the powers of the Congress.The

The second issue involves the politicization of the administrative process. The first comes from Kenneth Silverstein that looks at the politicization of some advisory boards. For instance, one individual ("highly respected) who was up for an appointment to serve as on an advisory council on drug abuse was passed over because his politics were not right. This screening, or "vetting" is "unprecedented" according to Silverstein. But this isn't unprecedented, but instead is part of a bigger picture of the post-Watergate presidency and the attempt by all of those presidents to protect their power and policies. Just like the recent Executive Order by President Bush to place political appointees over the shoulders of career civil servants is an evolution of presidential influence that dates to the Reagan administration (and continued through the Clinton administration), the placing of political loyalists into as many openings as possible did not start with this administration. The Carter administration pushed through the Civil Service Reform Act of 1978, which created a new tier of bureaucrat known as the Senior Executive Service (SES) who is politically sensitive to the wishes of the president. Carter didn't get to reap the benefits of the change, but Reagan did. When the Reagan administration came to office in 1981, it had a rigorous vetting system that even threw out Republicans who supported George H.W. Bush. So no, what the Bush administration has done since it took office in 2001 is not "unprecedented," and to continue to believe that it is leaves everyone grossly ignorant about the history, evolution, and nature of presidential power in the contemporary period. It continues to mean that Congress will remain politically divided when facing an aggressive president rather than united in protecting its own prerogatives. The second is a story that is featured in a number of publications, and involves the former Surgeon General of the US. Richard Carmona, who was the SG from 2002-2006. He testified today before Representative Henry Waxman's (D. CA) Committee, and told that he was consistently kept under wraps by the administration during his tenure as SG. He was unable to add anything to the stem cell debate or his opinion about sexual abstinence. He also told about being pressured to attend "internal political pep rallies" and consistently had research reports spiked by higher political officials. He told the Committee that his research and opinions were "ignored, marginalized, or simply buried."

There were two unusual things that came from the testimony: First, when he asked to attend the Special Olympics, which was founded by a member of the Kennedy family, he was asked why he wanted to "help those people?" It isn't clear whether "those people" were the Kennedys or disabled individuals. Second, all of his speeches were edited "to add references to [President] Bush" where he was told that there should be "at least three references per paragraph." That is crazy, bordering on Personality Cult issues. Only unlike the Personality Cults that were part of Soviet history, where the Cult originated with the man (such as Stalin), the Cult in the current circumstances comes from the institution--those working under the President who wish to promote the image of the "Great Man."

Those two things aside, there are questions that stem from this breathless article that go unanswered. First, if the conditions were so bad, why did he serve a full four years? How credible are you to serve four years, and then go around complaining about being boxed in? Second, going into this presidency, knowing what we all knew about President Bush's stance on stem cell research, contraceptives, family planning, etc., did he really think he was going to have the freedom to go "off the reservation?" And given just how protective these recent presidents are of their agendas, do we really think that any of them would appoint people who would contradict their message? What I would want to know from the SG is whether he produced scientific studies concerning life or death issues that were spiked by political appointees? That would be troubling. What I see from these stories is not out of the norm for the recent presidencies, and not just the current one.

Strike Two

Last year, Senator Arlen Specter, from his perch as Chair of the Senate Judiciary Committee, held a day long hearing on the presidential signing statement, and then introduced legislation to curb the use (or abuse) of the signing statement by the Bush administration. That legislation went nowhere, although it did generate a lot of coverage for the Senator at the time.

Today, Senator Arlen Specter, now Ranking Member of the Senate Judiciary Committee, has introduced legislation designed to tackle the use of the presidential signing statement. S. 1747, "The Presidential Signing Statement Act of 2007" comes with a fairly detailed press release by Senator Specter. According to Specter, his bill is designed to "protect the constitutional system of checks and balances" in the following ways:

1. Prevent the president from using the signing statement "to alter the meaning of a statute" by ordering the courts--both federal and state--not to rely upon it when deciding a case;
2. Allow Congress the opportunity to participate in any case where the "construction or constitutionality of an act of Congress is in question and a signing statement was issued when the act was signed."

Specter acknowledged that there are legitimate functions for the signing statement--such as telling the executive branch agencies, departments, and commissions how to "administer a law" or the congratulatory/admonishment statements that act as a type of press release. I am struggling with the first legitimate use. Is Specter saying that it is legitimate for a president to order an agent not to enforce a provision of law because it "violates the supervision of the unitary executive branch" but it is not legitimate for the Court to follow that construction?

To be honest, after reading the bill and the press release, I can only conclude that Senator Specter is more interested in publicity than addressing the signing statement. I also think this particular effort is misguided for a couple of reasons:

First, I don't think he can tell the Supreme Court what evidence a member may or may not rely upon when deciding a case. As it is, there is one side of the spectrum, represented by Justice Antonin Scalia, that eschews relying upon anything other than the plain meaning of the text. Therefore he and others do not use any legislative history other than the bill sitting before them. On the opposite side of Scalia, representing the other end of the spectrum, is Justice Stephen Breyer, who believes that a judge should avail himself to all pertinent material when deciding the meaning of law--which includes congressional reports, statements of floor managers, conference committee memos, floor debate, and even presidential bill signing statements.

Second, it is sporadic when a signing statement comes into play in the outcome of a decision, and even when it does, it often isn't crucial to deciding the case. For instance, in the Chadha decision, the Supreme Court simply noted a past practice of Presidents objecting to the use of a legislative veto. When Justice White finished the decision, the legislative veto died because it violated the Presentments Clause and Bicamerialism, and not because of the president's signing statement. Some other decisions rely upon the signing statement in greater detail. When President Reagan signed the "Gramm-Rudman" balanced budget bill, he objected to the use of executive powers by a legislative agent, which the Supreme Court used in deciding the case. However, in the Hamdan decision, the Supreme Court rejected President Bush's signing of the Detainee Treatment Act outright (see Scalia's dissent where he scolds the Majority for relying upon all sorts of extraneous congressional documents, but not the signing statement, pg. 12-13.). As Specter rightly notes in his release, the recent GAO Report on the signing statement noted that reliance by judges on the president's signing statement is sporadic at best. So why go to all the effort of passing "veto proof" legislation for something that isn't much of an issue anyway?

Third, Specter continues to miss the target--the influence of the Executive Branch agencies. He charges: "If the President is permitted to rewrite the bills that Congress passes and cherry pick which provisions he likes and does not like, he subverts the constitutional process designed by our Framers." I don't think it is cherry picking that is the problem. The problem is that some agencies abide by the challenges in the statement while others simply do not. The GAO Report clearly showed that in areas that are important to the President--particularly in large appropriations bills--the President and his staff will dedicate resources to seeing the challenge through. We need a complete picture of where those areas are. The GAO Report provided an opening that Congress does not seem to want to take. If the Congress really wants to clamp down on the use of signing statement to challenge or reconstruct, it has to have some sense of where those are likely to happen. That is step one. Thus Congress should commission the GAO to follow up on the recent Report, be more thorough and systematic. Then, after identifying where those areas are, it should write its bills so that they are "signing statement-proof." For instance, a number of signing statements--particularly of the type that allow the President reconstruction of language--where contentious battles between the House and the Senate take place that leaves provisions vulnerable. Case in point was the 1986 Immigration bill that I have referenced elsewhere. In that bill, a provision that was designed to protect individuals fired because of discrimination was crippled after the House and the Senate could not come to agreement over proof of discrimination. Thus when President Reagan signed the bill, he took advantage of that contentious debate and defined the provision so that burden of proof was on those who were fired, which was completely at odds with the sponsor of the provision. Thus writing particular provisions so that they are clear and get Executive Branch agents on record agreeing with the intent of Congress might be a start.

Fourth, Senator Specter and others should begin to take into consideration the power of the President to interpret the constitutional meaning of legislation he signs into law. This power, which is referred to as "coordinate construction" or "departmentalism" argues that each branch of government must decide on what is or isn't constitutional. Therefore when a president signs a bill with one provision that he feels violates the Constitution, he has every right to do that. In fact, he is obligated by the oath he takes when he is sworn into office to protect and defend the Constitution. This theory often gets dismissed as "Right-Wing fantasy" or part of the "Imperial Presidency," but it is clear that it has had advocates or proponents in every administration since Nixon. And what's more, there are now a number of Supreme Court Justices, not to mention lower-court judges, who are orphans of the Justice Department's Office of Legal Counsel (OLC) since Watergate who are also proponents of the theory. Certainly Chief Justice Roberts, Associate Justices Scalia, Alito, and Thomas are firm believers of the unitary executive, and with it the belief that the president is as obligated to protect the Constitution from unconstitutional acts as the Court is. It may even be too late for Congress to mount a legal challenge. Better yet--Congress should step up and be vigorous protectors of their prerogatives and of the Constitution, and to start by dispensing with bills such as this one by Senator Specter.

Pay Attention

It appears that Congress has taken interest in a recent Executive Order issued by President Bush that enhances his influence over the regulatory process.

Back in May, I documented the importance of Executive Order 13,422 which built upon an Order issued by President Clinton back in 1993. The Clinton Order had wiped out two important Reagan Orders, and at the time went unnoticed as to the reach that Clinton had taken in his overhaul of the Reagan Orders.

As you well know, control over the regulatory process has been of prime importance for the post-Watergate presidents. If the President is not able to win battles with the Congress, then it is important that he mutes or negates those losses when it comes time to put rubber to road. Thus it was Reagan that empowered the new Office of Information and Regulatory Affairs (OIRA) inside OMB to be his eyes, ears, and muscle over the regulatory agencies. As I discussed last week, the first Bush administration empowered the Vice President to do the work of OIRA when Congress refused to fund it or confirm a Director. Clinton pulled a fast one largely because he had a Democratic-controlled Congress. He folded the Reagan Orders into a new Order, 12,866, and also required the independent regulatory agencies and commissions to inform OIRA of its regulatory planning agenda for the coming year--a way of monitoring the "independents," if you will. President Bush II seemed to like the Clinton Order, as he didn't mess with it when he took office. It took a loss of control over Congress for him to realize that he needed to modify and enhance that Order. And boy did he ever. The Congressional Research Service issued a report last February that breaks down the important components of Executive Order 13,422--but if you want my take, the most important component is placing "regulatory policy officers" (RPOs) inside each agency that filters the regulations on behalf of the White House. Furthermore, the RPOs are also placed inside the "independents," making the president's influence there more tangible than it ever has been.

It is not certain how any of this works because President Bush set the date for it to take effect this July 24, just in time for the 13 appropriations bills to come down the pike later this summer and early fall. By splitting the issuance of the Order from the date it takes effect, the administration was probably hoping that any initial interest would fade as other items clutter the political horizon. That strategy--if it was a strategy--hasn't worked. As reported in today's San Francisco Chronicle," Congress has already moved to short-circuit the Order.

The House has added an amendment to the "Financial Services and General Government Appropriations Act, 2008" (H.R. 2829) that would place inside section 901 of the bill a stipulation that cuts funds for the ability of OIRA to carry out any part of the Order. The amendment (H.AMDT.461), according to Representative Brad Miller (D. NC--there are Democrats in North Carolina?) and Representative Linda Sanchez (D. CA), is designed to stop "this President or any President from seizing the power to rewrite almost every law that Congress passes, laws to protect public health, the environment, safety, civil rights, privacy, and on and on, without answering to Congress or the American people." The amendment passed by voice vote.

There remains an uphill battle for the supporters of this amendment--does the Senate add a similar one, does the amendment survive the conference committee??--but if so, what happens? First, it is nice to see that the Congress is not just paying attention to this sort of activity but also that it actually does something to challenge it. However, these sorts of provisions have a hard time working given that the president has funds that he can move around to fund it anyway. Back in the 1970s, when President Carter granted amnesty to Vietnam War draft dodgers, the Congress passed, and the president signed, legislation that had one of these funding-killer provisions tucked inside. The Congress denied funding to the Justice Department to process the forms for those applying for amnesty. To get around the provision, which Carter declared unconstitutional, he simply moved funds for general purposes to fund their processing.

It is important that we keep an eye to see how this progresses. Currently HR 2829 is awaiting attention by the Senate Appropriations Committee, but considering that Senator Robert Byrd (D. WV) heads that Committee, the provision has a decent chance of staying intact at least until the conference committee. After that, who knows?

Pardon? Clemency? WTF?

If you are interested in the clemency that President Bush just dropped on Scooter Libby, then pay attention to my friend Mark Morris's website. Mark is the man for all things pardon. If you have a question, feel free to contact him or add a comment.

Just some thoughts. First, Janis Joplin's words "when you got nothing you got nothing to lose" never rang truer than Bush's decision to short circuit the prison term. Public approval in the toilet and a so little time left in his presidency, what can he possibly lose by making this decision? Second, will he pardon Libby? Clemency doesn't do much for the felony conviction. Where will Libby possibly get a job now that he has a felony wrap? Third, why not pardon? Is it that Bush wishes to remain loyal and on the side of law? Fourth, if Libby was assured clemency, why not hire the local ambulance chaser, who bills at either $50 an hour or for a percentage of the take? Instead, let him rack up the kind of legal bills that would collapse a small country only to let him off the hook after the appeals court spoke? Fifth, will Representative Dan Burton (R. IN) demand that Bush be investigated for using his power to bestow clemency for political purposes in the same way that he blathered and bleated when Clinton did?

Myopic

The "Washington Post" this week ran an excellent series on just how powerful VP Cheney is, and some of the reporting was simply startling regarding what he has been able to accomplish. For instance, Cheney has made personal calls to particular agencies that are impeding the interests of particular supporters, such as energy or ranching concerns. For all the talk about "nonpartisan bureaucrats making impersonal decisions," reality dictates otherwise. For the typical bureaucrat, coming to work one day and finding the vice-president on the other end of the phone line knocks right out any thoughts of nonpartisan and impersonal decisions.

Why is he so powerful? Some attribute it to his experience working inside the Executive Branch--from his time in Nixon's EEOC, to his time as Ford's Chief of Staff, to his time as Bush 41's Secretary of Defense--he knows the trigger points to getting things done. He is well aware of the precious commodity of time for any administration, and what is the best time to get things done to the worst time (such as the last 18 months of a term limited president). Others claim that it is because Cheney has no future political aspirations once he has left the White House. It is clear that in a president's second term, most VP's are already "measuring the drapes" in the Oval Office. There is tension between staff loyal to the president and staff hoping to parlay a VP win into better offices closer to the president (you measure power inside the White House by proximity to the president--not necessarily job title). Cheney has short circuited that problem by stating at the outset when asked to run with Governor Bush in 2000 that this would be his last. And finally, some claim that he is so powerful because he knows much more than his boss. When Governor Bush assembled his "superstars" after the Supreme Court handed him the victory in December 2000, he claimed that, as any smart CEO knows, you assemble a crack team of advisers and then delegate to them. It is clear that at some point--probably in 2000--Bush and Cheney sat alone in a room and agreed upon a vision. And the new president agreed to give the VP a wide berth in pursuit of the vision. And the VP? He agreed to serve as the lightning rod, and like any good lieutenant, he would divert fire away from his boss.

All of these are compelling reasons, and each certainly contribute to Cheney's power. But by focusing only on Cheney, we miss the big picture of power in the Executive Branch. As the president has gained in power, so has the VP. And this story is about the accretion of power, something that continues to be overlooked. Cheney stands on the backs of those who came before him. And one VP that often gets overlooked is Dan Quayle, another powerful VP who served capably another President Bush. Quayle was powerful because his talents were widely overlooked. Most, like this recent article that appeared in The Independent of UK: Other vice-presidents, such as Dan Quayle, remained a laughing stock through their tenure. As they say, laughing all the way to the bank.

Quayle's power came from a Council he headed named the Council on Competitiveness, or more informally, The Quayle Council (hereafter QC). The QC came to be when the new Bush administration in 1989 clashed heads with a Democratic Congress that was fed up with eight years of secrecy and obstruction from the Reagan administration. In particular, the Congress wanted to limit the influence that the Office of Information and Regulatory Affairs (OIRA) had over regulatory affairs. The Reagan administration had quickly positioned OIRA as the enforcer of the will of the administration. They did it via two powerful executive orders that required agencies to consider the cost and benefits of any regulation that they wrote. If they could not justify the costs (of $100 million/year to the economy) then they either figured out a way to make it work or scrap it. Further, all regulatory agencies were required to let OIRA know all the regulations that they may work on for the coming year (pre-planning review). The Congress had attempted to get information on just how OIRA was exerting influence and over whom, and never to satisfaction. Thus when the new Bush administration took over, the Congress was going to make sure that a process was put in place that would allow oversight of the rulemaking process. When the Bush administration balked, the Congress refused to appropriate OIRA or to appoint someone to head it up--in a sense, it gelded OIRA. Rather than cave in, the Bush administration created an entity that the Vice President would head that would take over for OIRA. The Council on Competitiveness would review "not only regulations that [were] published for notice and comment, but also strategy statements, guidelines, policy manuals, grant and loan procedures, Advance Notices of Proposed Rule Making, press releases, and other documents announcing or implementing regulatory policy that affects the public."

The QC, with the VP spearheading the drive, was very effective in protecting business interests close to the President. For instance, the QC worked wonders in diluting the strength of the Clean Air Act Amendments, even though the Congress and the head of the EPA resisted. By bringing the EPA director into close contact with the VP, and then the President, the director realized that playing ball with the President was a wiser career move than playing ball with the Congress (for a thorough examination of this issue, see Chapter Five of my dissertation, pp. 129-134).

So once again, while this topic of a VP to end all VP's is popular with the press, take a moment and look at the road that led to that power. You will find that it transcends presidencies and will likely extend well into the future.

The Empire Strikes Back

I have been looking each day at the White House Press Briefing transcript in the hope of finding some question regarding the GAO report. While this question has not seemed to pop up in the briefing room, today's briefing had a whopper.

The President was heading to Alabama today, and the noon briefing was handled by Dana Perino. At the very end of the briefing, Ms. Periono was asked a question involving a spat between the National Archives and the VP's Office:

Q This is from the House Oversight Committee, this is Waxman's people. The committee says it has learned that over the objections of the National Archives, Vice President Cheney exempted his office from the Presidential order that establishes government-wide procedures for safeguarding classified national security information. The Vice President asserts his office is not "an entity within the Executive Branch."

Is that right? Is his office not an entity within the Executive Branch?

Her answer was in the form of "I have to get back to you on that."

So what was all the hubub, or was this just a rumor that the reporter is seeking to confirm?

It seems that this is real, and what a controversy it is. There has been some reporting that ever since I. Scooter Libby has disappeared, the Vice-President has lost his cred within the Executive Branch. That appears to be wrong, a rumor probably generated by Lord Vader himself in order to throw off unwanted media attention, which appears to be an easy thing to do these days.

According to Henry Waxman, the Chair of the House Oversight and Government Reform Committee, last summer the National Archives complained that the VP sought exemption from an executive order that establishes procedures to deal with classifying and declassifying national security information, despite the fact that his boss supported the order.

In 2006, the Archives, per the order, sent two letters to the VP (here and here) seeking entrance into the VP's office for an inspection, and at that time the VP made a whopping assertion: "The Office of the Vice President is not an entity within the executive branch" and not subject to the order. If you can believe this, the VP's Office actually claimed that the "reporting requirement does not apply [because the Office] has both legislative and executive functions(!)." This is a stunning argument coming from this particular VP. Why? First, it might have been a substantive argument 75 or 100 years ago, when the Vice President clearly was more a legislative agent than an executive one. But no one in their right minds would think that the VP today serves as a legislative agent. He is there to cast ties in the Senate (in support of Executive policy) and to advance the President's preferences inside the Congress. But dual loyalties? Wow. Second, this particular VP has openly demonstrated his disgust for the Congress, going out of his way to maximize presidential power at its expense. I can only imagine the chuckle he and his staff had when they made this particular argument.

When the VP's Office refused the repeated requests for inspection, the Archives requested that the Justice Department (with a letter that went right to AG Gonzales) resolve this constitutional question of whether the VP is an Executive Branch officer (the letter actually asks the AG to engage in the academic exercise of supposing that if the VP's staff support him in an executive capacity, then doesn't that make his Office an Executive Branch entity?). Rather than resolve the question, the AG recommended to President Bush that he abolish the office within the Archives seeking the information. Just classic stuff. Seriously.

Let's hope that Ms. Perino gets back to us real soon. I for one am waiting like a kid before Christmas to hear this one!

A New Round For The Signing Statement

I received a press release this afternoon from the Senate Committee on Appropriations regarding a new Government Accountability Office (GAO) report on the effect of the presidential signing statement. The press release caused my heart to flutter: "GAO researchers found signing statements in 11 of 12 appropriations acts in FY 2006 and examined a sample of 19 provisions with which the President expressed concern in his signing statements. The President objected to, and federal agencies failed to execute, public law in six of those cases--30% of the total sample."

House Judiciary Committee Chair John Conyers (D.MI) charged that "the Administration is thumbing its nose at the law" while Senate Appropriations Committee Chair Robert Byrd (D.WV) fumed: "The White House cannot pick and choose which laws it follows and which it ignores." The press release itself was titled: "GAO Examination Shows White House Power Grab."

Now that I have had time to digest the report, I am not so certain that "Power Grab" is the appropriate terminology for this Report--in fact, it sends out mixed signals that will give both sides of this issue reason to claim victory. But before I go there, let me say something about the report itself.

GAO was asked by Senator Byrd and Congressman Conyers to assess what impact, if any, the Bush signing statements have had on the execution of the law, and whether they have had any effect on how judges read the law. Remember that a long standing claim (at least since 1986) has been that the signing statement was added to the legislative history of bills the president signed in order to give judges a complete picture of the meaning of law. I have long argued that the purpose was never designed to influence judges, although if it did, what a bonus!

The GAO investigators looked at 2006, the last of Republican control of the Congress (and this makes a difference, as I will show below). They looked at 12 federal appropriations bills (normally 13), and found that 11 of the 12 carried a signing statement. In context, I can attest that a government appropriations bill is always an indicator of when a president will or will not issue a signing statement. To put another way, the presence of an appropriations bill will likely cause a substantive signing statement. A substantive signing statement is one where the president either challenges the constitutionality of a provision of law, instructs an agency or agencies on how to implement the law, and/or defines a vague or undefined provision of the law. In those 11 signing statements, GAO found 160 specific challenges by the Administration. In context, and something I can attest to, this is an undercount of the actual number. As GAO notes in the "Methodology" section, they counted only those challenges where it was specifically clear what the president was objecting to. This Administration has commonly made general objections, thus making it difficult to both "count" the challenges, but more importantly, to ascertain specifically what the Administration is doing about the challenge. Not an accident.

From those 160 challenges, GAO selected 19 to determine how the agencies responded to the challenge. Their finding? The agencies followed congressional intent in 10 cases, did not follow congressional intent in six of the cases, and in three cases, they took no action because there was no "trigger" to cause action. Often time Congress will place into the law some action an agency must take in the case of a particular event. If the event does not take place, the agency is not "triggered" into action. The GAO--in an effort at greater precision--placed the challenges into "12 interconnected categories or concerns" and then into four large groupings. Thus the signing statement challenges were grouped into the following groups:

1) Unitary Executive
2) Commander in Chief, National Security, Foreign Affairs or Policy, or Law Enforcement
3) Bicameralism/Presentment
4) Miscellaneous--Recess Appointment, Fifth Amendment

I understand the need to place the challenges into groups. I have done that in my work on the signing statement, and Phillip Cooper, another political scientist who studies the signing statement, has also recently clumped the Bush challenges. I have approached the process of grouping by allowing a reason to drive the categories. As I look at the GAO groupings, I don't quite understand how they derived the categories. First, Unitary Executive is a theory that explains why a president uses the signing statement, and is not a subset of the object itself. The GAO knows that the Unitary Executive is a theory because they cite recent work on it, albeit incomplete. I get the feeling that the researchers did not know anything about the theory, and once seeing that President Bush makes so many references to it, quickly did a search to find as much about it as quickly as possible. I don't know that for fact--just a hunch. But one thing they don't grasp is the fact that the theory explain the action, and not the other way around. When President Bush references it, he is taking a shortcut that saves him the time of listing all the specific violations that he (or rather his henchmen) have found. The second grouping is just so large that it doesn't really tell us anything--and why "Law Enforcement" was clumped into it is beyond me.

But the more substantive finding? In six cases, the signing statement seemed to prevail. Or did it? Before I answer that, let me say something about the six cases of defiance.

The first three are Chadha violations, or instances of a legislative veto (which violates the Presentments Clause and violates the constitutional principle of Bicameralism--for a law to take effect, it must pass both Houses of Congress (Bicameralism) and be presented to the President for his signature or veto (Presentments). In the first, the Pension Benefit Guaranty Corporation was supposed to ask for Committee approval before spending extra money. Instead, it spent money on administrative costs without asking for approval, yet it did notify the Committee of the action. Is that a violation? In the second, FEMA was supposed to submit a plan for housing to a Committee, yet refused to do so because it normally did not produce the sort of plan that was required before taking action. Clearly a violation. There is always a first time, and any time before the first time can be chalked up to "never having done" the particular action requested. In the third, the Department of Agricultural was supposed to get prior approval before transferring funds, which it did not do. It did, however, notify the Committees prior to transferring the funds and it responded to Committee requests for more information on the action. Is that a violation? In the first and third, there is no evidence that the Committees objected to the manner in which the agency executed the law. Furthermore, the presence of a legislative veto is dicey stuff. Formally, the Supreme Court has found them to be unconstitutional, yet informally, the president and the Congress has worked out a deal (often referred to as "comity") whereby the agency may comply, in some way, to what the Committee is requesting. And the way in which the agencies behaved is nothing new--this has been going on since 1983, the year the Supreme Court invalidated the legislative veto. In fact, you could refocus blame here--Should the President executive a provision of law that the Congress knows is unconstitutional, yet threatens the agencies (and the President's policies) if he does not comply? Who is the true victim here?

The fourth and fifth groupings were for Unitary Executive reasons. The fourth involved the Department of Defense refusing to provide separate budgets justifying the costs and contingency for a variety of policies wrapped up in the GWOT (Global War on Terrorism). The fifth again involves the Department of Defense responding to "an inquiry from the Chairman of the Subcommittee on Military Quality of Life and Veterans Affairs, House Committee on Appropriations, in 38 days, instead of 21 days as directed by the appropriations act." I placed the full quote because I couldn't believe that it was added in the study. Is responding to the request a couple of weeks late the same as refusing to enforce the law?

Why are these two considered "Unitary Executive" groupings? Because the President, as the "head of the Unitary Executive branch," gets to decide what information the Congress gets, and when. That is the rationale, at least, offered by the GAO.

The sixth group is Law Enforcement. Here the Customs and Border Patrol refused to relocate their checkpoints along the Southern Border every week because it determined that the requirement violated its mission. Instead, it shut checkpoints down "for short periods."

Finally, the GAO looked at the question of whether the Federal Courts were influenced by the signing statement, and found that they were not--the Courts only infrequently cited a signing statement, and mostly for technical or summary reasons. It rarely factored into a key part of an opinion by any Federal Court.

That is the Report in a nutshell. They offer a great section on Methodology and a nice table that breaks down the signing statement and its effect. The Report has been seized upon by the opposition--particularly the tagline that the Bush administration has refused enforcement of "30% of laws it signed." The Report does not explain what motivated the executive branch agents to not enforce a particular provision of the law. And here is where I find the Report most troublesome. On page nine, the authors add this zinger in their conclusion: Although we found the agencies did not execute the provisions as enacted, we cannot conclude that agency noncompliance was the result of the President's signing statements. I got to this part of the Report and sat back and muttered to myself: "You have got to be kidding me!" If not the signing statement, then what? Does this imply that rogue agents are violating the law on their own? Are they not effected directly by the signing statement, but instead told what to do (or not to do) via a political appointee? This conclusion, to me, is mindboggling. And I am sure it will be seized upon by the supporters of the President. In fact, the discussion ahead will proceed on political lines--what did this Report say or not say with few actually taking the time to Read it.

Here is my take on it. This Report confirms something I have long believed (and advocated): look to the areas deemed important to the President, and you will find a President willing to see the signing statement through. In the areas that are not so important? You are likely to see agency personnel following the intent of the Congress. It is clear that of the 1,100+ objections that President Bush has made, he has not seen that many through. But the same can be said in reverse. That the President also is not making all of these challenges without seeing some of them through, in some way or the other. This Report should energize congressional staff and media alike--What lies below this tip of the iceberg? Problem is that this question is not going to be asked, or attempted to be answered. At least by those in better position to get an answer than me. I shall "endeavor to persevere," as Chief Dan George was want to say.

The "Not-So" Unitary Executive

I was checking the news releases at the White House homepage this evening when I came across an interesting blurb from yesterday's news. It states simply: On June 14, 2007, the President signed into law S. 214, the "Preserving United States Attorney Independence Act of 2007." When I took a look at what S.214, it places limitations upon the president's appointment power and also mixes up the separate powers by allowing a district court to appoint a US attorney until a vacancy is filled.

I immediately wondered why there was no signing statement to this bill, because this is the kind of legislation ripe to draw a signing statement that says something like this: the president has the sole authority to appoint inferior officers as the head of the unitary executive branch. Since there was no signing statement, I looked to see what the Statement of Administration Policy (SAP) said about this bill, and lo and behold, there was no SAP as well. What gives?

Well, here is the long and short of the story. S.214 strikes out an amendment added to the Patriot Act reauthorization last year by Senator Specter which eliminated a practice that had existed for decades prior to Specter's Amendment. The practice dictated that when a vacancy occurred in a US attorney position, the Attorney General had 120 days to make an interim appointment so long as it was not a person who the Senate had already rejected. At the end of the 120 day period, if a successor was not appointed, then the district court could appoint the person until the vacancy was filled.

To give you a sense of just how much the Congress enabled the exercise of power in the first six years of the Bush presidency, Senator Specter's amendment eliminated the district court's role in the process and allowed the AG to appoint a person permanently or until the vacancy was filled. The only thing that remained was the prohibition on naming someone who had already been rejected.

So the White House could get around the confirmation process by naming an interim attorney (say eight persons recently canned for performance related issues/because they serve at the pleasure of the president/because they would not engage in political prosecutions/persecutions) who would serve while the administration "searched" for a suitable replacement.

S. 214, introduced by the honchos in charge, simply reset the process as it existed for the 20 years or so prior to Specter's actions last year. According to the bill's author Senator Diane Feinstein (D. CA), the administration planned to target those attorneys who were either not playing ball (politics) or who occupied a position promised to a political hack, force them to resign, and then skirt accountability by appointing an interim attorney who would not have to answer to the Senate. The Attorney General, Alberto Gonzales, initially blasted the legislation, promising vigorous opposition because the attorneys serve at the pleasure of president (while staying mum on the other crucial part, that they serve at the pleasure of the president "after receiving confirmation from the Senate). In an effort to short-circuit the legislation, Gonzales promised to bring every interim appointment to the Senate for hearings and a vote.

In the end, that wasn't enough. This past March, after Gonzales had received his first round of spankings from the Congress, he dropped his opposition to the bill, signaling to the Senate that the administration would not stand in the way. If the Democrats managed to get it out of Congress, then the President promised to sign it, which he did yesterday.

This is extraordinary, and yet there doesn't seem to be much discussion in the usual places, particularly those who howl that the administration bends to no one. That the unitary executive is code for absolute monarchy, a king who neither listens to the public or the law. And yet politics in this case--the white heat the administration has taken over the firings of a few select US attorneys demonstrates that there are limits to how far the power of the president can be stretched. As I have argued elsewhere, the unitary executive theory assumes vigorous offense and defense from all the branches. The only reason it seemed so stark these past couple of years is because the Congress was not living up to its side of the bargain. Well now you see that a Congress, backed by the public, can provide limits when presidential power goes too far.