Distorting the Unitary Executive and Other Stuff

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

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




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

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

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

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

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

Later, Rutten says this about the signing statement:

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

And he says this:

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

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

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

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

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

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

Confoundment!

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

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

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

So, the sections themselves:

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

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

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

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

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

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

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

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

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

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

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

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

Parsing the Lawyers for Fred

The Boston Globe's Charlie Savage has a piece in today's paper discussing the flood of attorneys from Fred Thompson's now-defunct campaign to the campaign of Mitt Romney. Savage argues that this particular move provides "clues about the kind of federal judges the candidate would appoint and the legal philosophy that the candidate would embrace as a president."

Putting aside the question of judges--since multiple forces are at play in the selection of judges--the question of what the president's view of his or her own power is the more important question. In one sense, the question of expansive power inside the Justice Department has already been settled regardless of who wins the election or who gets appointed. The Justice Department has been pushed to advance the cause of presidential power since the Ford administration, when assistant attorney general Antonin Scalia headed the Office of Legal Counsel. Irrespective or presidency, the Justice Department has been on a consistent tract in pushing presidential power, maintaining consistency among the career attorneys who stay in place when one administration leaves and the next comes in.

The more important players will be those the president surrounds himself with inside the White House Office--particularly among the White House Counsel Office. They whisper in the ear of the president, and are then when the president makes a final decision--often to the chagrin of the Justice Department. And what we know from the current administration is that the advice of legal counsel appears to have a greater effect on the president when the president has no clear understanding of the powers of the Office or no clear understanding of the law. Bill Clinton, for instance, drove the White House Counsels Office and the Department of Justice to support his particular conclusions, even ignoring the advice when it conflicted with his particular purpose. Whether it was the pardon process or going to the Supreme Court to support executive privilege, he understood what he thought presidential power enabled a president to do, even if it meant decreasing that power for future presidents. And Mitt Romney appears to be a president in the George W. Bush mold and not the Bill Clinton mold. Telling was a comment Romney made at a debate last October, when the candidates were asked whether a president could take the country to war unilaterally or does he need the support of the Congress, and Romney answered that he would first need to call his attorneys and ask them.

So what does Romney's selection of legal advisers say about a future Romney presidency? As an overall, it says that Romney would be a president who continued to push expansive presidential power, and certainly supporting the ideal of the unitary executive if not the ways the Bush presidency put the theory to practice. And if Rudy Guiliani does not do well in Florida on Tuesday and drops out, it is clear his lawyers committee will flock to the Romney campaign, making his lawyers committee even more conservative than it already is. So who are these lawyers for Romney? Of note:

• Douglas Kmiec--Kmiec was an architect in the Reagan administration of the use of the signing statement to advance presidential power. Kmiec served in the Office of Legal Counsel in Reagan and Bush I, and has been a support of the unitary executive in its theoretical form. Kmiec, who serves as a Co-Chair for Romney's legal team, has not been a supporter of many of the actions the current Bush administration has taken in the name of the unitary executive. Kmiec fought those who called themselves unitarian but acted contrary to the Constitution even when he was an attorney in the Reagan Justice Department. He found Reagan's interpretation of language that was part of the Immigration Reform and Control Act of 1986 as a gross violation of the president's executive powers.
  
• Charles Cooper--an attorney in the Office of Legal Counsel and in the Civil Rights Division of the Department of Justice in the Reagan administration. He is also a proponent of the unitary executive theory and was involved in the ground floor of the Federalist Society, a conservative legal organization founded by a number of conservatives affiliated with the Reagan Justice Department.
• Viet Dinh--A member of the Bush Justice Department, serving under attorney general John Ashcroft. Dinh is an avowed conservative, involved in the 1990s in the Senate Whitewater Committee investigations into Clinton wrong doings from the Rose Law Firm, where Mrs. Clinton worked, to the death of Vince Foster, which continues to be the Mother of All Conspiracies among the Clinton-haters. Dinh was also an architect of the PATRIOT Act, among other controversial Bush legal opinions, and thus is a proponent of allowing ideology to influence interpretation.
• Eugene Scalia, the son of Supreme Court Justice Antonin Scalia, served as the Solicitor of Labor under George W. Bush--one of Bush's many recess appointees. Scalia's confirmation was viscerally opposed by Democrats, in particular Senators Wellstone and Kennedy, who argued that he would be placed in the Department of Labor in order to undo regulations that supported the American worker, which is precisely what he did. Scalia was also involved in the Bush administration's attempt to water down the whistleblower protections that were part of the Sarbanes-Oxley bill. In Bush's signing statement to Sarbanes-Oxley, Bush interpreted the whistleblower protection accorded to those wishing to expose corporate malfeasance to only apply only when a congressional committee was actively investigating the corporation. Despite the protests of Senators Grassley (R. IA) and Leahy (D. VT), both who worked extensively on the bill, Solicitor Scalia filed an amicus brief to an administrative review board case using the Bush language of the whistleblower provision. In the end, the Bush interpretation was overturned by the new Solicitor for Labor Howard M. Radzely.
• Michelle Boardman--She was the Justice Department representative sent by the Bush administration to testify at the Senate Judiciary Committee hearing in 2006 on the presidential signing statement. She would certainly be a proponent of aggressive executive power couched in the theory of the unitary executive.

Of the 45 Lawyers for Romney on staff, 19 (or 42%) come directly from the Bush administration, most right out of the Justice Department. And given that Mitt Romney does not have a firm stand on constitutional issues, it could very well be a repeat of the Bush years where the ideologues ran amok, pushing constitutional powers well over the bounds of Article II. It is certainly worthy of attention, and Romney now needs to be pressed at every twist and turn by those who cover his campaign about his views of the power of the presidency--getting past the theoretical and right into the practical.

Whither the Unitary Executive?

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

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

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

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

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

Constitutional Powers on the Cheap

On New Years Day, I wrote about President Bush's attempted use of the "protective return" pocket veto, and I referred to Professor Robert Spitzer's excellent work on the matter. Fortunate for us, Professor Spitzer has two pieces on this subject published today--one at the Los Angeles Times and the other at the History News Network.

There are a couple of interesting points over and above what I documented regarding this action. First, when past presidents have executed this action, they claimed precedent in the "Pocket Veto Case," a 1929 Supreme Court case that accepted Calvin Coolidge's pocket veto even though the Congress had delegated to an agent the responsibility of receiving messages from the president. You may recall that even though the House adjourned, Speaker Pelosi left the Clerk in charge to receive messages from the White House. The administration, like those before, argued that leaving a flunky behind does not constitute "in session." Furthermore, when Presidents Bush I, Clinton, and now Bush II defend the practice of the protective return, he cite this case. The problem is, as is often the case, this is an incomplete recitation of precedent. Not long after the "Pocket Veto Case," the Supreme Court addressed the issue of the pocket veto again. In Wright v US, the Supreme Court overturned its decision in Pocket Veto. This time, the Supreme Court supported the right of the Congress to designate a stand-in to receive messages from the president.

The second point comes near the end, where Professor Spitzer addresses why President Bush, in his last year of his presidency, advanced the protective return. His most compelling reason is to advance the president's constitutional powers "on the cheap." As my colleague and mentor Ryan Barilleaux has argued, this fits into a case of "venture constitutionalism," the president's persistent attempt to push the boundaries of Article II. This has underscored a number of actions this administration has taken over the last 7 years of its presidency. And for the most part it has been successful because the Congress has failed to challenge, which is what defines success from failure. Those who make this argument correctly note that a president will be successful at advancing power so long as it does not unite the collective will of the Congress. It is for this that I may take issue with Professor Spitzer. As we know, President Bush issued the pocket veto on a bill that had unanimous support in both chambers of Congress AND had the blessing of the administration until it vetoed it at the last minute. I think more to the point, the administration was caught in an ever more present vice that presidents find themselves in--the vice that pits domestic politics on one side and international politics on the other. Realizing that signing the bill would pick a fight with the Iraqi and other foreign governments and an overt veto would cause relationships across Party to form, the administration attempted to declare a pocket veto and then see "where the chips fell." This way they can say they made an attempt to stop the bill at the last minute while allowing the bill, in the end, to become law.

Nonetheless, Professor Spitzer's articles should be the authoritative, end all, be all of vetoes, pocket vetoes, and protective return pocket vetoes.

Keeping Secrets Secret

Dan Froomkin at the "Washington Post" held a live discussion yesterday, and posted the transcript of that discussion today. There were numerous questions about Bush's pocket veto, so I sent him my postings on it and Bob Spitzer's chapter, which should dazzle his readers the next time he is asked about it.

Froomkin also received a question about the FOIA legislation that President Bush signed, asking whether there was a signing statement attached to it. There of course was not a signing statement, which had some of his readers scratching their heads. In particular, a reader from Hartford, CT wrote:

I read over the weekend that Bush signed some kind of FOIA-related legislation, but didn't read whether he attached a signing statement. I can't imagine he'd sign anything that required more disclosure without exempting himself from it. What do you know?

Froomkin's answer was not the whole story. Froomkin noted, correctly, that most of the White House is exempt from FOIA. What he didn't say, and what is important to remember, is that a key provision of the bill President Bush signed was stripped out in conference by the Senate in order to get the bill to the president's desk, and then to get him to sign it. As the Federation of American Scientist's "Secrecy Report" stated yesterday, the policy established by former Attorney General John Ashcroft in the days following the 9/11 attacks is still in place. Back then, AG Ashcroft sent everyone with an Executive Branch listing a memo urging them to withhold information from FOIA requests until the potential ramifications of release could be assessed. Simply put, reject any FOIA request. To give this order an exclamation point, Ashcroft assured any Executive Branch agent that the Department of Justice would back him or her up if sued in court.

The Democrats in the House had originally pushed through a bill that negated the Ashcroft policy, putting in place a policy "establishing a presumption that government records should be released to the public unless there is a good reason to keep them secret." But Representative Tom Davis, a Republican from Virginia (and earlier considered to be a main contender for the Senate seat vacated by the upcoming retirement of John Warner) defended the Ashcroft position:

...the provision repealing the so-called Ashcroft memorandum was eliminated.... The Ashcroft memorandum established that the administration would defend agency decisions to withhold records under a FOIA exemption if the decision was supported by a sound legal basis, replacing the pre-9/11 Janet Reno standard of always releasing information absent foreseeable harm.

In another area involving secrecy (and showing consistency among the Bush administration as it leaves office), the FAS has filed a complaint with the Department of Justice's "Office of Professional Responsibility" asking it to answer why Steven Bradbury, who, in his position as head of the OLC, refused to abide by an executive order issued by President Bush (this can't bode well for Bradbury's bid to make that OLC stint last until January, 2009). The issue here involves the lack of cooperation by the vice president's office when it was asked for information by the Information Security Oversight Office (ISOO). As you recall, it was this issue where the vice president attempted to wiggle out of compliance by arguing that it was not an executive office, but rather a legislative one due to the vice president's role as the President of the Senate. The president's executive order required the Justice Department to adjudicate any problems with compliance, which the agency refused to do.

Look What The New Year Brought

There is a practice among politicians, and in particular presidents, to release bad information, or information you don't want to draw a lot of attention to, on Friday. This is because little attention is paid to the news on the weekend, and by the time Monday rolls around, it is old news. The Bush administration has become proficient at dumping unpleasant information on a Friday. It seems that they continued that practice right into the New Year.

Yesterday, as the rest of the country headed to their favorite restaurant, bar, or friends home to celebrate the end of the old and the beginning of the new, the administration signed a bill that it was not jazzed to see on its desk. The bill, S. 2271 is titled the "Sudan Accountability and Divestment Act of 2007," a bill designed to force the administration to take more action than it has in Sudan, a country ravaged by civil strife and, most agree, a country that has instituted genocide against its own. There has been intense pressure domestically and internationally to bring US action to bear against the country, and the administration has only recently come around. The Democrats promised action if elected, and the president signed that action yesterday. In President Bush's signing statement, he acknowledges the actions he has taken thus far (the use of sanctions against the Government of Sudan and high level diplomatic engagement), and then challenges who may legitimately speak for the nation.

This Act purports to authorize State and local governments to divest from companies doing business in named sectors in Sudan and thus risks being interpreted as insulating from Federal oversight State and local divestment actions that could interfere with implementation of national foreign policy. However, as the Constitution vests the exclusive authority to conduct foreign relations with the Federal Government, the executive branch shall construe and enforce this legislation in a manner that does not conflict with that authority.

The reason for the challenge is because of the greater role that states and individuals may play in sanctioning individuals or private businesses that have relations with the Sudanese Government. As the "New York Times" explains, the bill:

...makes it easier for mutual funds and private pension fund managers to sell their investments and allows states to prohibit debt financing for companies that do business in Sudan. It also requires companies seeking contracts with the federal government to certify that they are not doing business in Sudan.

In addition, the new law requires the State and Treasury Departments to keep Congress informed of the effectiveness of the sanctions, and it also requires any contractor that has business with the United States Government to divest of any times with Sudan.


Deputy Press Secretary Scott Stanzel was asked about the signing statement in his meeting with the press yesterday morning at the Western White House. His answers were interesting. First, in speaking about the potential constitutional problems with the new law, his explanation of the problem was not near as bold as explanations about who has power in our constitutional government in the past. Rather than declaring that the president has absolute (inherent constitutional authority) over the foreign policy of the US--something that has been "boilerplate" in the past--Stanzel said this: Under the Constitution, the federal government is entrusted with a full and exclusive responsibility for the conduct of foreign affairs." But that would mean that the Congress, and even the courts, have an important say in the foreign policy of the US. This statement is clearly a break from the past, and one wonders whether Messers Cheney and Addington either got by-passed when the statements were vetted OR have lost some muscle as the Bush administration comes to an end?

Stanzel then declares:

So to the extent that any actions taken pursuant to the act interfere with the federal government's foreign policy aims, that action would be unconstitutional. So as the signing statement makes clear, the administration will take appropriate measures to ensure that the United States, through the federal government, speaks with one voice in foreign policy matters.

When asked for specifics, Stanzel simply stated that he would have to get back to them once he has gotten "more guidance from some of our attorneys, who have obviously very closely examined this law." We should hope that these are not the same attorneys who completely missed the section of the recent defense authorization bill that led to the president's veto (more below).

What is clear is that President Bush has continued a practice, starting last year, of muting his challenges in his signing statements. Gone are the multiple vetoes of the past, and in their place are fairly lukewarm challenges coupled with an absence of sweeping claims to presidential power--the repetition, for instance, of the phrase the unitary executive. While I was a bit facetious above regarding the role of Cheney and Addington, I think it is clear that the challenges placed in any of the signing statements in 2007 have not seemed to originate in the vice-president's office. As the Washington Post detailed this past summer, the vice-president's office had inserted itself into the process whereby a signing statement gets attached to a bill the president signs. And clearly one of the reasons (I believe the only reason) why President Bush has more challenges than any other president is because of this abnormality in routine. It could very well be that the VP's office has been de-linked from the process.

The Defense Authorization Bill, redux

Deputy Press Secretary Stanzel was also asked again whether President Bush's "Memorandum of Disapproval" last week (documented by me here) consisted of a veto or a pocket veto. And Stanzel added a wrinkle that many of you may not recognize. Stanzel noted that they consider the bill "pocket vetoed," which would mean that the Congress could not take action to override. However, the Congress is refuting that claim, correctly noting that there was someone to receive the veto message by the president, thus the bill was "vetoed." The administration, if you recall, not only claimed the pocket veto, but also sent the bill back to Congress as a veto. Here is Stanzel:

In addition to that, that's why we took the additional step of actually returning the legislation on Friday to the House with a message of disapproval. So it's our view that we took the extra step -- what they call a protective return -- to make sure that Congress, when it returns in January, can move forward quickly with a fix to that legislation so the pay raises, the .5 percent can go into effect retroactively and we can make sure that Iraq has an opportunity to continue the process of rebuilding.

It isn't clear who the "they" is in Stanzel's statement. But he notes that what the administration did was execute a protective return, or a protective pocket veto. Now I am sure many of you do not know what the heck that is, still trying to get your mind around a pocket veto vs. a veto. To shed light on this, I turn to SUNY Political Scientist, and presidency expert Robert Spitzer. Bob contributed a chapter in my 2006 edited book on the protective return, and interestingly enough, some interest parallels between Bush I and Bush II.

This concept of pocket vetoing a bill AND sending it to the Congress as a veto began in the Ford administration, which Congress challenged in the case Kennedy v Jones (challenging when the president may actually use a pocket veto). In that decision, the DC Circuit ruled that pocket vetoes could only be used after Congress has adjourned, sine die, and then only if the Congress forgot to appoint an agent to stay in the Congress to accept messages from the president.

But Spitzer notes that it was the first Bush administration that pushed the use of the pocket veto any time that Congress stood adjourned, and not just at the end of a session. The Bush administration attempted to establish precedent by executing a pocket veto over minor bills, hoping that Congress would not pay attention and challenge the actions of the administration. In an interesting parallel, President Bush I attempted a pocket veto of a bill that he signaled to Congress that he would sign, but then at the final hour disapproved of it because of "technical" flaws in a few of its sections. He did not, however, return it to Congress and the Congress assumed the bill became law, an assumption that Bush I did not challenge.

President Clinton behaved similar to Bush I, and now Bush II in 2000, when he claimed a pocket veto and regular veto to the "Marriage Tax Relief Reconciliation Act of 2000," the "Death Tax Elimination Act of 2000," and the "Intelligence Authorization Act for FY 2001." Interestingly, when President Clinton sent the "Memorandum of Disapproval" to the Congress, he used the following language:

Since the adjournment of the Congress has prevented my return of (each of the 3 bills) within the meaning of Article I, section 7, clause 2 of the Constitution [the clause describing the regular and pocket veto], my withholding of approval from the bill precludes its becoming law. The Pocket Veto Case, 279 U.S. 655 (1929). In addition to withholding my signature and thereby invoking my constitutional power to "pocket veto" bills during an adjournment of the Congress, to avoid litigation, I am also sending _____ to the House of Representatives with my objections, to leave no doubt that I have vetoed the measure.

If you look at the current Memorandum of Disapproval, President Bush declares:

The adjournment of the Congress has prevented my return of H.R. 1585 within the meaning of Article I, section 7, clause 2 of the Constitution. Accordingly, my withholding of approval from the bill precludes its becoming law. The Pocket Veto Case, 279 U.S. 655 (1929). In addition to withholding my signature and thereby invoking my constitutional power to "pocket veto" bills during an adjournment of the Congress, I am also sending H.R. 1585 to the Clerk of the House of Representatives, along with this memorandum setting forth my objections, to avoid unnecessary litigation about the non-enactment of the bill that results from my withholding approval and to leave no doubt that the bill is being vetoed.

While the two are not exactly the same, they are pretty close. In fact, the same language can be seen in ever "protective return" going back to the Ford administration. Hence the practice is institutionalized within the Executive Branch and will probably be used again in our next administration.

This "protective return" issue is important for a couple of reasons, chief among them is the importance of Congress challenging an "aggrandizement of power." An important illustration for other unilateral claims, such as those found in the signing statement. But I think Professor Spitzer says it best, and thus I leave you with his conclusions:

One may be tempted to dismiss all this as inconsequential constitutional trivia. After all, if these dual vetoes...failed to spawn court challenges or disrupt the usual lawmaking process, why be concerned? The answer is that there are two sets of concerns: first, the procedure is flagrantly, even outrageously, extra-constitutional; and second, it may ultimately have profound institutional and policy implications.

To All

Here is to a wonderful new year everyone. Here is to a year with more questions to the candidates about presidential power. Here is to the last year of the Bush administration. And here is looking forward to higher levels of turnout by all groups, but especially young people!

What A Disaster

President Bush has apparently caught Congress off-guard as he vetoed a defense spending bill that everyone assumed he would pass. And here is confusion over whether he really vetoed the measure or pocket-vetoed the measure. And for the press, there is uncertainty over what a pocket veto actually is.

But first, the bill. Congress send the massive bill (HR 1585) to the president before Christmas, and right before the House adjourned for this session. One provision added to the bill back in September by Senator Frank Lautenberg (D N.J.) is what sparked Bush's disapproval message. The provision (Section 1083) would allow U.S. citizens to sue foreign governments involved in injury or death to Americans. In particular, it would allow U.S. citizens to sue Iraq, thus freezing Iraqi money in US banks, for the actions of the Hussein regime. Apparently the current Iraqi ambassador to the United States, Samir Sumaidy, raised objections to this particular section 10 days ago, prompting the Bush administration action (remember that this administration heavily criticized the Supreme Court for using foreign precedent to guide the outcome of a decision).

The Democrats in Congress have a case to be upset. A look at objections to this bill, issued in the form of a Statement of Administration Policy back in May does not say a thing about this objectionable section, again because the section was added back in September. There are no other SAPs issued after the section was added, and clearly the administration had enough time to pick it out as problematic and to get the Congress to drop it or qualify it--something the administration did not do.

In President Bush's "Memorandum of Disapproval," he mentions only this one section as the cause for the action. And then he muddies the water with whether this constitutes a pocket veto. He defends the pocket veto, but also notes that he is sending this disapproval message to Congress with his objections to "avoid unnecessary litigation about the non-enactment of the bill that results from my withholding approval and to leave no doubt that this bill is being vetoed." So what gives?

First, if you are confused about the difference between the veto and the pocket veto, don't be alarmed. It seems that some elite reporters are confused as well. Take this piece from the New York Times Steven Lee Myers and David M. Herszenhorn, reporting from the "Western White House" in Crawford, TX. They write:

Because he used a pocket veto — allowing the legislation to expire 10 days after it was passed by the House — his decision cannot be overridden.

But that cannot be right, can it? If President Bush did not act on the bill "10 days after it was passed," then the bill would automatically become law, right? The Founding Fathers worried about a President who would refuse to act on legislation sent to his desk, in essence not doing anything with it and thus not taking the political heat for signing or vetoing a particular piece of legislation. Thus in Article I, section 7, the Constitution stipulates:

If any Bill shall not be returned by the President within ten Days (Sundays excepted) after is shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it...

A Pocket Veto involves the wording following the ellipses above:

...unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

If the Congress sends a bill to the President and then adjourns before the 10 day clock has expired, all legislation dies. This is done to protect the president. For the president to veto a bill, he must send it back to the Congress for their consideration. If no one was there to receive the bill, then Congress could run out the 10 day clock and the bill would automatically become law--hence the Pocket Veto provision. But Congress may adjourn yet leave instructions for those left behind regarding messages coming from the White House. In this case, Speaker Pelosi instructed "the House clerk to accept any communications--such as veto messages--from the White House during the month long break." And the Senate, it has not technically adjourned in order to prevent President Bush from making a recess appointment. Thus a Pocket Veto will not work, thus prompting Bush's discussion about a Pocket Veto, and then ending with a statement that his message should "leave no doubt that the bill is being vetoed."

Not the way the administration wanted to end this year, I am sure, particularly given just how mismanaged this has been (his team overlooked this provision--"While my Administration objected to an earlier version of this provision in previous communications about the bill, its full impact on Iraq and our relationship with Iraq has become apparent only in recent days."

Wow!

What A Let Down

President Bush was given a massive appropriations bill (so called "Omnibus" spending bill) that wrapped up this legislative session. Congress was unable to complete appropriations, and thus had to bundle what was left and send it to the president for his consideration. President Bush had previously threatened to veto this bill (HR 2764), but in the end he got what he wanted out of it (which is usually what happens with these type of bills).

What is also normal with Omnibus bills are a litany of challenges in the president's signing statement. For instance, H.J.Res. 2, which is an Omnibus bill for FY 2003 that contained 35 challenges. Even better is H.R. 2673, which is the Omnibus for FY 2004. President Bush's signing statement of H.R. 2673 contained 50 distinct challenges. So what a let down when we get to H.R. 2764. President Bush lightly slaps the Congress on the hand for not reducing earmarks (although he doesn't say how many earmarks were added by the administration). And then he adds the challenges. Now this is a guy who specifically picked out things the complain about in previous signing statements. For instance, the 2004 Omnibus had the following language:

The executive branch shall construe as advisory the provisions of
the Act that purport to: (1) direct or burden the Executive's conduct of
foreign relations, including sections 514, 531, 548, 557, 570, 571, 589,
610, and 618(b) of, and language relating to an agreement under the
heading ``Other Bilateral Economic Assistance, Economic Support Fund''
in, the Foreign Operations Appropriations Act; and sections 404, 612,
and 635 of the Commerce, Justice, State Appropriations Act and language
in that Act relating to World Trade Organization negotiations and United
Nations Security Council voting; (2) limit the President's authority as
Commander in Chief, such as language under the heading ``Andean
Counterdrug Initiative'' in the Foreign Operations Appropriations Act
and section 610 of the Commerce, Justice, State Appropriations Act; (3)
limit the President's authority to supervise the unitary executive
branch, such as section 610(3) of the Commerce, Justice, State
Appropriations Act, and sections 618 and 628 of the Transportation,
Treasury Appropriations Act and the language in that Act relating to
Office of Management and Budget (OMB) review of executive branch orders,
activities, regulations, transcripts, and testimony; or (4) restrict the
President's constitutional authority to make appointments, such as
section 604(c)(3)(B) of the Foreign Operations Appropriations Act and
subsections 112(a) and (d) of the Commerce, Justice, State
Appropriations Act.


This is what President Bush says in the current signing statement that hints of a challenge:

Finally, this legislation contains certain provisions similar to those found in prior appropriations bills passed by the Congress that might be construed to be inconsistent with my Constitutional responsibilities. To avoid such potential infirmities, the executive branch will interpret and construe such provisions in the same manner as I have previously stated in regard to similar provisions.


Blow me away!

It seems that the heightened attention to the signing statement combined with a change in party control of Congress have had a measurable effect on the use of the signing statement. Most notable is the drop in signing statements that contain challenges. Up to this bill, President Bush has issued just one signing statement that contained 11 challenges. Whether this effect is permanent remains to be seen, but clearly there is an effect. The next session--President Bush's final year in office--should bring less attention to what he is doing in office. First, the belief that a lame duck presidency means the president is impotent will work to his advantage as all eyes turn towards the next president. And second, a presidential election will drain press resources to follow how President Bush flexes executive power.

Merry Christmas

Merry Christmas everyone.

Rhetorical Signing Statements in Action

President Bush has issued a couple of rhetorical signing statements this week that are textbook, from the warm congratulations to all and the "group hug" behind the President, who is seated and signing the bill into law.

First up is the "Energy Independence and Security Act of 2007," or H.R. 6. Visually, you have the (mostly) huddled congressperson flanking the president, who is seated and signing the bill at a desk that has a nice sized placard stating: IMPROVING FUEL ECONOMY, REDUCING OIL DEPENDENCY. You have the warm banter:

"I think that's Senator Domenici there is (sic) disguise--(laughter and applause)--looking pretty handsome, isn't he? (Applause)"

The bipartisan congratulations: " I do welcome members of the Cabinet who've joined us. I particularly want to thank the Speaker and the Leader. I appreciate your leadership on this important issue. (Applause.) Speaker Pelosi is here with Congressman Steny Hoyer, House Majority Leader; welcome, Mr. Leader. (Applause.) Leader Reid has brought members of the Senate with him: Senator Inouye, Senator Bingaman, Senator Stevens -- (Senator Domenici)-- I appreciate Congressman Dingell and Congressman Markey, Congressman Gordon -- these are all leaders on their respective committees that help bring this bill to my desk. I also want to welcome all the other members of Congress who have joined us. (Applause.)"

And finally an explanation of the bill's purpose: more reliance on biofuel, reduction in demand for oil by increasing fuel economy standards, the use of energy efficient light bulbs.

All in all, a 10 minute process. And the intended audience? Lots of interest groups and energy corporations who wish to mostly praise the president--press releases designed to echo the president's comments. For instance, the energy company VeraSun, "a leading producer of ethanol" applauds "the work of our leaders in Washington D.C., for their vision in putting our country on a path toward greater energy diversity and sustainability. Or, a release by a think tank, the "Golisano Institute for Sustainability," who offered up its director, Nabil Nasr, who "calls today's signing of the (Act) 'a tremendous step forward.'"

Second, moments after the first, President Bush gets out in front of another group of important looking people to sign HR 4118, the "Prevent Taxation of Payments to Virginia Tech Victims and Families Act." Here again, President Bush is signing the bill at his desk (and what an impressive desk it is) while the assembled guests look on. Next, he congratulates all who helped get this bill to his desk, including both the President of Virginia Tech, the Mayor of Blacksburg, and the Governor of Virginia. President Bush winds up this three minute ceremony with a bit of empathy: "And so I want to say to the families who still suffer, we think about you. And to the students and faculty and alumni and leadership of Virginia Tech, thank you for helping those who suffer reconcile and recover from the grief they feel. So it's my honor to sign this important piece of legislation." This signing statement had a much more general distribution, getting picked up by major newspapers and wire services, as well as the college newspaper at Virginia Tech.

Third, President Bush's signing ceremony for the bill aimed at the home loan mortgage crisis, HR 3648, the "Mortgage Forgiveness Debt Relief Act of 2007." In this ceremony, President Bush has a mixed assemblage of important guests (Male-Female, Black-White, Congress-Cabinet) crowded behind while he signs the bill on a desk with a new placard on the front, HELPING AMERICANS KEEP THEIR HOMES (I wonder how much money is spent each year making these things?). President Bush follows protocol by singling out the important players for his gratitude:

"I thank my Secretary of the Treasury, Hank Paulson; and the Secretary of Housing and Urban Development, Alphonso Jackson, for taking the lead in helping people stay in their homes. I particularly want to thank the Chairman of the Finance Committee, Max Baucus; Senator Debbie Stabenow of Michigan; and Senator George Voinovich of Ohio, for sponsoring this legislation.

I want to thank Jim McCrery of the House, Stephanie Tubbs Jones and Rob Andrews. Appreciate you all being here.

I want to thank the staff who works hard at the Treasury and HUD to make this deal work. Appreciate your hard work."

After this, a preface to why the legislation is needed and all of the actions that the president has done on his own to combat the crisis:

"My administration has taken strong steps to help homeowners avoid foreclosure by making it easier to refinance loans. We gave the Federal Housing Administration greater flexibility to refinance loans for struggling homeowners. We helped assemble a private sector group of lenders, loan servicers, investors, and mortgage counselors called the HOPE NOW Alliance. This group has agreed on a set of industry-wide standards to help those with subprime loans refinance or modify their mortgages, so more families can stay in their homes. "

Next is a list of what this legislation will do to remedy the problem, followed by a backhanded swipe at the Congress:

"The Congress needs to pass legislation permitting state and local governments to issue tax-exempt bonds for refinancing existing home loans. Congress needs to pass legislation strengthening the independent regulator of government sponsored enterprises like Freddie Mac and Fannie Mae, so we can keep them focused on the mission to expand home ownership. Congress needs, as well, to complete work on responsible legislation modernizing the Federal Housing Administration, so that we can give the FHA the necessary flexibility to help hundreds of thousands of additional families qualify for prime-rate financing."

This signing statement was intended for a mixed audience--first, the general population who are aware that this is a big problem, either because it gets covered by the press (local and national, print and broadcast), or because they or someone they know is caught up in the problem itself. Second, there is the targeted audience such as those in the real estate or lending business itself.

Thus far for 2007, President Bush's rhetorical signing statements are nearly even to the total number of rhetorical statements issued in 2006. In 2006, he issued a total of nine rhetorical signing statements, and to date, for 2007, he has issued a total of eight. Where the big difference so far is in the constitutional challenges. In 2006, President Bush issued a total of 24 constitutional signing statements with a total of 243 distinct challenges. In 2007, he has one constitutional signing statement with a total of 11 challenges. Some may argue that there have been so few signing statements of any variety because Congress has not gotten much to his desk, or what it has gotten to him has been insignificant, such as renaming post offices or roads. But that has not been entirely true. Sure, the Congress has gotten its fair share of trivial legislation to his desk, but it has also gotten some substantive items that have been signed without comment, a true break from his past. And part of this reason has to be the switch in control of the Congress coupled with the intense publicity the constitutional challenges received in 2006 and sporadicly in 2007. And of course we have not seen what he plans to do with the massive omnibus spending bill that just crashed through the roof of the White House--something the president has asked his new OMB director (Jim Nussle) "for ideas for what to do" with it.

Senate Testimony

Last October, the Senate eagerly sent an invitation to former OLC-head Jack Goldsmith to testify before the Judiciary Committee--this after Goldsmith's book, The Terror Presidency had been available to the public. The Democrats on the Judiciary Committee thought they had another Bush loyalist bent on sticking it to their former boss. Nothing could have been further from the truth.

The Senate Democrats had only themselves to blame as Goldsmith's book was clear that he had not lost faith in the Bush administration. Thus when Goldsmith didn't criticize the administration, the Democrats were stuck, unable to blast away at Goldsmith after they invited him to testify.

The Senate Judiciary Committee just released the transcript from that October hearing. I encourage you to skip over the accolades and other self-promotion from many of the senators and get right to the questioning.

(Kudos to the Federation of American Scientists for publicizing this--it is clear the Senate Dems wouldn't).

Update

CQ Reporter David Nather has informed me that the article on presidential power 08 is now partially up on the free CQ site. It is under the link, "New Handshake, Same Grip."

A Promising Start

David Nather, a staff reporter for Congressional Quarterly, has an article in the December 17 edition of CQ Weekly, which unfortunately is available to subscribers only. Mr. Nather was kind enough to send me a copy because I helped him as a backgrounder when he was trying to conceptualize how the piece would flow. So what he asked me is to come up with a list of questions that should be asked to the candidates about presidential power, including the use of unilateral devices such as the signing statement, that are not likely to get asked by most reporters who are simply interested in the horserace. It was a request that I was only too happy to fulfill since I have given some thought to this very subject in my role as a professor for a course on the Media and Politics, where I have been heard to say that the American public is ill-served by questions of process.

Nather put together a fine, seven page article that has all sorts of useful nuggets for other reporters who are looking for an angle that is unlike what the pack is reporting. This includes a nice inset list of key terms, such as "unitary executive" to "inherent powers." CQ also sent a list of written questions on specific issues relating to the use of presidential power, from the use of prerogative power to signing statements that qualify or negate provisions of law. Of all the major candidates who received this questionnaire, only John Edwards answered all the questions. Thus in place of those questions that went unanswered, the CQ folks simply dived into the candidate backgrounds--looking at how those who were executives behaved, particularly in relation to the legislative branch. Those with no executive experience, they looked into speeches, background reports or "white papers," or legislation that implicated executive power. Also whether the candidate him or herself has evoked secrecy to protect sensitive political or personal information. What they found, which is self evident, is those who have executive experience are those who have been more protective of and aggressive with executive power.

Nather's article then looks at each one of the candidates under scrutiny, balancing where they support the powers of congress to investigate, fund, and oversight with the powers of the presidency. What is missing from this examination are the internal and external forces that push a president towards unilateralism and centralization of power.

Internal

The Institution of the Presidency

One of the more powerful internal pushes towards the greater centralization of power is the institution of the presidency itself. When the new president takes office in January, 2009, he or she will take hold of an institution with thousands of employees who have been there long before he or she arrived, and many of these employees are dedicated to protecting the powers of the presidency. For instance, inside the Department of Justice is the Office of Legal Counsel, who has built up precedent going back decades of advancing the president and his powers over the opposition from Congress, the courts, the public, and so forth. When the president receives a bill on his desk, it will already contain constitutional objections to various provisions of the bill. And the president is going to be told by his advisers to listen to the OLC because you do not want to open a door that weakens power for your presidency, or those who come after. The OLC will also be there when the president wants clearance to do something that others are telling him he cannot do. For instance, back when the "video news release" was a major issue, and the Government Accountability Office--an agent of Congress--told the president that any executive branch agency sending out these VNR's to local television stations were violating federal law against propaganda, and thus should cease and desist. Did the president listen? Heck no, he simply asked the OLC to give him a ruling on it, which it did, in favor of the president's position.

Or, there is the Office of Management and Budget, waiting to crack heads of any executive branch agent who hints at doing it his or her own way. After eight years of a Republican presidency, if a Democrat wins in '08, the new president will turn to OMB to run roughshod over those with Republican sympathies. This will mean empowering sub-entities like the Office of Information and Regulatory Affairs to lean on any bureaucrat who refuses to play ball--even if Congress is giving this bureaucrat its full weight and support.

Reelection

Our new president will also be thinking heavily about 2012, when he or she has to run again. He or she will be thinking about 2012 because the entire political system has already begun thinking about it. Candidates will have already signaled that they are going to run, and our new president will be concerned that he or she can return to the voters with a winning record. While four years may seem like a long time to you or me, it isn't for those in Washington D.C. Our new president made campaign promises that he or she will be judged by in '012. The problem is that no one outside of the presidency is willing to give the president any chance to succeed. There used to be a thing called the "honeymoon," where the new president was given some breathing room at the beginning of his first term to get settled in and to make mistakes without retribution. That is a thing of the past. President's no longer have the luxury of time and space to get settled. They immediately face opposition from all sorts of forces. Thus a president becomes tempted right off to use the executive order rather than Congress to advance his own policy. Think George W. Bush and "faith based initiatives." He saw right away in 2001 that working with the Congress was a dead letter. Thus he issued an executive order creating the "Office of Faith Based Initiatives." When? January 29, ,2001--a mere nine days after he took the oath of office!

Lame Duck

What about the second term as the system begins to look forward to the next president. This is what we refer to as the "Lame Duck" period of the presidency, where a president's political capital is gone, and there is little incentive for anyone to work with him or her because a new person will come in a rewrite what has already been written. For years we assumed that this is when the president's power to do anything was at its lowest. That was mostly true in the days before unilateral action. Now a president will accomplish a great many things--setting aside millions of acres of land or lowering the permissible levels of arsenic in our drinking water--without the worry of anyone resisting him. Because the president needs a positive legacy, and because Congress has no incentive to give him or her one, the temptation to fly solo becomes irresistible.

External

Externally, there is the poisoned political environment that the president will find him or herself in, where compromise is seen as a weakness. The closely divided Congress means that the two parties will be cautious to anything the president hopes to accomplish, with the Republicans (should they remain in the minority) using the close division to obstruct anything the president hopes to accomplish.

And then there is the press. The rise of critical journalism as a lasting effect from Watergate means that reporters heap more negative than positive news upon the president's back. This negative news effects the publics perception of the president. It means that the public are predisposed to believe the president will do ill rather than good. Thus any presidential missive will be seen as a calculated move for personal gain. Attempts to reach compromises with the Congress break down because the press demands to know who wins or loses.

It becomes easier to simply push your agenda inside, where there is not the prying eyes of Congress or the press, which means that more and more things need to be secret.

These forces immediately take hold once the new president has moved his or her stuff into the White House. His or her perception of what is possible changes dramatically once he or she begins governing. Thus while it is great that CQ is taking the time to address the question of presidential unilateralism and expansive presidential power during the campaign, in the end it really does not matter much what the candidate says in response to questions. Those answers simply get tossed out the window when the great internal and external hydraulics begin working on the president. Dealing with those things should be job #1!

Get It While Its Hot

My short article on the signing statement--"Contextualizing the Signing Statement"--appears for a short time in a free preview offered by the publisher of Presidential Studies Quarterly.

Furthermore, if you are interested in the signing statement, MSNBC's Live with Dan Abrams has a segment featuring Jonathan Turley and Charlie Savage, who Abrams says "has done more than anyone else to lift the veil of secrecy" on this practice. It will give me a heart attack one day.

A Signing Statement

I think that a recent signing statement by President Bush is indicative of the type of signing statements we should expect for his remaining days in office. Rather than the bold, confrontational language of the past six years, this statement covering the "Department of Defense Appropriations Act, 2008" (HR 3222) is vague and covers a number of different sections of the bill. Here is what I mean:


The Act contains certain provisions identical to those found in prior bills passed by the Congress that might be construed to be inconsistent with my Constitutional responsibilities (sections 8005, 8009, 8012(b), 8034(b), 8052, 8082, 8085, 8089, 8091, and 8116, and the
provision concerning consolidation under the heading ``Operation and Maintenance, Defense Wide''). To avoid such potential infirmities, I will interpret and construe such provisions in the same manner as I have previously stated in regard to those provisions.

First, what specifically do these sections do?

8005--Deals with the president's ability to control communications. The section directs the Secretary of Defense to transfer funds where necessary, but before he does, he must notify the Congress "promptly of all transfers." The president has objected to this language before, arguing that the Constitution gives him the sole authority to communicate to Congress and not the inferior executive officers.

8009--Ibid. States that funds used for a "special access program" (you would think something that vague would draw the fire alone) may not be spent without first notifying the defense committees in Congress 30 days before spending money.

8012(b)--This section demands that the president "prepare and submit" budget materials for the Congress. Traditionally the president objects to this language as a violations of the Recommendations clause.

8034(b)--Ibid. The provision requires the president to submit "justification material" with his budget request.

8052--This is a "report and wait" requirement similar to 8009 above, requiring the administration to report to the "congressional defense committees, the Committee on International Relations in the House of Representatives, and the Committee on Foreign Relations of the Senate."

8082--This complaint would center on interference with the presidents executive powers. It tells the president how he may use appropriated funds.

8085--This section contains two problems. First, it tells the president how he may or may not use funds and second it commands him to receive "prior notification" from the defense committees once he has decided how the funds may be used.

8089--Tells the president how to spend "$62,700,000."

8091--Directs the president on what he needs to put in the budget request for FY 2009.

8116--Ibid. This particular section tells the president that requesting money for military operations outside of the normal budget will no longer be permitted: "Any request for funds for a fiscal year after fiscal year 2008 for an ongoing military operation overseas, including operations in Afghanistan and Iraq, shall be included in the annual budget of the President for such fiscal year as submitted to Congress..."

``Operation and Maintenance, Defense Wide''-- This objection interferes with the president's ability to direct and supervise inferior executive officers.

President Bush's demands are found in two separate "Statements of Administration Policy" sent to the House and the Senate as the bill made its way through both chambers. You can read them here and here.

Now all we need to do is wait and see how he acts upon these complaints. While waiting, it is clear that this signing statement differs dramatically from the signing statements in his past.

Attacking Addington

David Cole has a review of former Bush Justice Department official Jack Goldsmith's book, The Terror Presidency. Cole, like the Democrats on the Senate Judiciary Committee before him, seems most unhappy with Goldsmith for not unloading on his former boss.

Last month, the Senate Judiciary Committee called Goldsmith to testify about his time in the Bush Justice Department, and it is clear that they had not read his book prior to doing so. When Goldsmith praised the administration, and supported the notion that much of the problems facing the modern presidency has its origins in the Congress, for passing laws in the 1970s that interfered with prerogatives of the president.

For Cole, he titles his piece "The Man Behind the Torture," which refers to VP Cheney's Chief of Staff, David Addington. Goldsmith does spend time criticizing Addington, as does Cole, who makes him out to be a boogeyman, but the criticism is done disingenuously. What do I mean? Back in the 1970s and 1980s, it was popular for those running for national office to run against the bureaucracy. All sorts of horrors could be--and were--heaped upon the back of bureaucrats because the bureaucracy wouldn't fight back. It is the same as cursing the moon for personal problems. Blame is placed elsewhere with no chance of bouncing back.

It is well known that Addington does not do interviews. He is perfectly content to lounge in his spider hole and make his presence felt elsewhere, away from the prying eyes of the media, the Congress, and the American public. Thus for critics, it is easy to place all sorts of blame at his feet. For Goldsmith, blaming Addington makes it easier than placing blame where it is deserved--at the feet of the president.

There are additional problems I have with Cole's critique of the book. Cole chastises Goldsmith for not criticizing administration policy on its merits, instead seeking the diplomatic route by obtaining "congressional authorization for them." I am not sure that it is the job of the political appointees in the Justice Department to criticize the policy on the merits--in particular, to criticize the President for a decision that is his and his alone. What is an appropriate part of the job at Justice is to decide whether the policy is constitutional or consistent with the law. If it is not consistent with the law, then it is perfectly appropriate to recommend that the administration work with Congress--rather than to stand alone--to bolster the case for action. As a critic of the administration, Cole believes that actions he feels is politically repugnant should also be voiced by the officials inside the Justice Department. I don't think that is fair.

Finally, I think in one part, Cole misses the point. He writes: "For all its strengths as a descriptive account of an administration run amok, the prescriptive elements of The Terror Presidency are at best conventional and at worst perverse. Holding up Franklin Delano Roosevelt as a model, Goldsmith recommends that the executive branch should take a more diplomatic approach to the other branches of government. As a matter of realpolitik, he suggests, the executive might well consolidate and exercise its power more effectively by working with Congress and the courts than by aggressively asserting immunity from legislative and judicial oversight on national security matters. What is striking is not the content of this prescription, which in itself is neither novel nor controversial, but the fact that Addington and other members of the Bush administration so vehemently rejected it."

That is not what Goldsmith was saying. Goldsmith argued, quite correctly, that the administration--in particularly Cheney and Addington--resisted any action that involved the Congress for fear that it would be interpreted as precedent for congressional meddling. And that of course is absolutely correct. If Cheney and Addington could put down their blinders for one minute, and recognize that the Congress of 2001-2006 was willing to do whatever the president wished, it could have enhanced the powers of the presidency far greater than the unilateral strategy they chose. And that is right on the button.

Laughing Out Loud

The Commission on Presidential Debates announced today the four sites to host the presidential and vice-presidential debates, and their pick is a real head scratcher as well as insulting to the intellect of those excluded from the pick. First, the choices:

• September 26, 2008-University of Mississippi in Oxford, MS--Focus on domestic policy
  
• October 7, 2008--Belmont University in Nashville, TN--townhall meeting
  
• October 15, 2008--Hofstra University, Hempstead, NY (will also be host of the "Bush Presidency" at some point in the next decade)--focus on foreign policy.
  
• October 2, 2008--Washington University, St. Louis, MO--VP Debate.

The two back up sites, if need be, are Centre College in Danville, KY--also a host of the VP debate in 2000, and Wake Forest University in NC.


The New York Times had a blurb on the pick, framed from the perspective of New Orleans, which is deeply offended that it was not picked--apparently it was led to believe that it was among the final selections, and how it knows that is beyond me.

New Orleans was told that it was not selected because it had "not recovered sufficiently from Hurricane Katrina." The Democrat Co-Chair of the Commission said that New Orleans was not chosen because it "was not read for a big event." And yet the University of Mississippi was picked, and Oxford, MS has only 700 hotel rooms to accommodate the 4,000+ who travel place to place to either cover the debate or administer it. The remaining 3,300 who aren't able to book a room will be "bused" from Tupelo, MS. How in the world is Oxford, MS "ready for a big event"?

When explaining the choices, the Republican Co-Chair, Frank Fahrenkopf, Jr., declared that the picks were not based on political influence, but rather "technical criteria and geographical balance." Anyone want to explain to me how TN, MS, and MO are geographical balance? More likely geographical clustering.

Furthermore, why aren't "battleground" states in the mix? MS has six electoral votes and TN has 11, as does MO. NY has 31. But none of these states are likely to be in play. MS, MO and TN are Republican states, and NY is a Democratic state. Why wasn't Ohio, PA, or Florida chosen?

One final LOL comment by the Commission--they have apparently changed the debate format so the candidates can now ask questions of one another, when the rules up to the point stipulated that candidates address only the moderator. And here is what Co-Chair Fahrenkopf says about that: "The candidates aren't going to dictate to us anymore." HAHAHAHAHA. Read the Memorandum of Understanding from the 2004 debates and then tell me whether you believe the bluster coming from Fahrenkopf!

The other diversion from the past is the addition of Internet questions, but I won't hold my breath that that will mean much.

Symposium Proceedings

The symposium I attended last February at the William and Mary Law School on the presidential signing statement is finally publishing the paper proceedings in the December 2007 issue of its journal, the Bill of Rights Journal. You may see a list of the papers at the Journal's webpage.