Under the Radar

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

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

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

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

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 It might have been that Gray asked to have his nomination withdrawn, but that does not seem likely since he was given extra duties less than two months ago.

The Catholics Talk Back

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

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

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

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

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

Pipe dream, I know.

Do You Hear What I Hear?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Signing Statements in the States

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

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

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

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

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

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

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

What To Make Of This

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

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

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

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

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

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

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

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

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

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

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

Testimony

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

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

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

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

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

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

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

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

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

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

The Man Tough Talk

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

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

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

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

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

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

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

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

Good Luck

Nat Hentoff, writing in today's Washington Times, that builds upon an earlier article posted at Nieman Watchdog by Steven Aftergood of the Project on Government Secrecy at the Federation of American Scientists--an indispensable resource for those interested in the lengths the government goes to in order to keep certain things secret.

Aftergood's article implores the press that is following the candidates to ask each whether they will uncork Bush related documents and other information once he or she is sworn in as president. The specific questions can be found at Nieman, but they range from disclosing the full scope of Bush's domestic surveillance program to apologizing to those individuals who have been rounded up via extraordinary rendition and later found to be innocent, such as Canadian citizen Maher Arar.

Hentoff uses his column to ditto that of Aftergood's, and even adds a few of his own--such as the legal opinions of Bush-era attorneys general, and I suspect those at the deputy level as well (particularly at the OLC). Hentoff writes:

But I haven't heard any of the frontrunners stress this need for a clean break with the Bush administration's use of a "unitary executive" doctrine to cloak these and other extrajudicial — and indeed extralegal — practices in deep secrecy. Will they publicly agree to Mr. Aftergood's challenge to "declassify and disclose" these and other Bush administration policies that — unless exposed to sunlight — could continue to be embedded in executive agencies in the new administration?

To Hentoff, I say the following:

Don't hold your breath about a flurry of openness once the next president takes office. That has not been the practice in the past and it is not likely to be one for the future. The next president will be all about leaving the past behind us while focusing on the future. Remember when Clinton took office he didn't blink at looking more carefully into the blanket pardons by Bush I for Iran-Contra figures, nor did he expose any of the activity of VP Quayle's Council on Competitiveness. And when Clinton left office, President Bush issued his first claim of executive privilege to stop an investigation by Representative Dan Burton (R-Looneyville) into the actions by AG Janet Reno. The next president has to be mindful of the things he or she would like to keep private once his or her term is up.

And second, even if a candidate eschewed the unitary executive, it wouldn't be true. The next president will take hold of the unitary executive, or more likely, the unitary executive will take hold of him or her. It is so much a part of the executive branch that to get rid of it would be as difficult as chopping off your own arm. Here is the real puzzler--the next president will likely act more in terms of those unitarians that directly preceded Bush II. Will reporters like Hentoff and others then praise that president for declaring the unitary executive dead simply because he or she is not behaving like Bush II? I think that is the more likely scenario.

A Muddled Mess

Rafael Valero of National Journal files a story--which seemingly demonstrates that NJ does not consider itself a slave to the 24 hour news cycle since it is nearly a month old--on the signing statement President Bush signed to the National Defense Authorization Act for FY 2008. This is the bill that President Bush attempted to pocket veto back in December because of complaints from the Iraq Government--an action that drew the wrath of Congress because he had not signaled at any stage of the game that a veto was coming (I have documented the pocket veto controversy here and the signing statement controversy here). In the article, John Woolley, a political scientist at the University of California, Santa Barbara, and a co-founder of the American Presidency Project--an extremely valuable website if you need hard data on the American Presidency, refers to Bush's veto as a pocket veto--something that he should know better than to say. Bush attempted a "protective return" pocket veto and Congress balked, forcing a Bush veto.

As for the article, despite my best efforts to make the number of signing statements issued (159) and the number of provisions challenged (1,167) public, Valero continues to report old figures--156 statements issued and "over 750" provisions challenged. Second, most of it simply rehashes what has already been reported nearly a month ago--that the challenges were made because they interfered with Bush's negotiations with the Iraqi Government to lock the US--and the next president--into a long term commitment and because it created several oversight organizations, such as the Commission on Wartime Contracting--which monitors government contracting.

There are a couple of interesting nuggets, if for nothing more than to demonstrate Valero's lack of curiosity to scratch deeper than the surface. First, Valero claims that the president vetoed the first bill back in December because of these problematic oversight provisions and not because of the complaints from the Iraqi government. His source for this is "critics," and it is a bit of a head scratcher. Back in December, when the first bill was vetoed, the administration and the Congress quickly worked together to deal with the complaints from the Iraqis. There is nothing anywhere to suggest that the administration also tried to get the Congress to water down or remove the troublesome provisions identified in the signing statement. After President Bush signed the bill and made the challenges, the Congress was completely blindsided because the administration had never mentioned any concern regarding any of those provisions. So why would critics suggest that all of this negative attention was over a failed "bait and switch"? It seems to me that this claim deserved more than the passing attention it received.

Second, he mentions the Commission on Wartime Contracting, the brainchild of Senators Jim Webb (D. VA) and Claire McCaskill (D. MO). The Commission is a "hybrid" commission that contains individuals appointed by the leadership in the House and Senate, and individuals appointed by the president. This provision in the National Defense Authorization bill is one that President Bush challenged in his signing statement. So far the Commission has not met because the Congress is "waiting to see whether the White House will name its two representatives...". I am not sure why the Congress does not go ahead and appoint their members and then apply public pressure against the White House to appoint its members (or face a rhetorical assault that the White House is in favor of poaching by companies like Haliburton)? Valero claims that the White House "has indicated" that it "might...help set up the commission." Might help set up? Why might? The bill that President Bush signed claims the administration must appoint their members, not might appoint their members. Valero lacks interest in the administration's claim that it "might" obey the law. Instead, he falls to the superficial:

"Woolley, fascinated by the politicking involved with the Defense bill, the president's signing statements, and the constitutional implications, said that Bush's stance is "pretty clever politics, but it's not clear that it is good democracy."

You need a Ph.D. to make that conclusion? And you wonder why the public has lost faith in government and the media?

Oh Anne Gorsuch, How We Miss Ye

Let's be clear--the contempt vote against Josh Bolten and Harriet Miers is the fault of the Bush administration, despite the public temper tantrum shown by House Minority Leader John Boehner before the vote. Boehner used the "the Congress has more important business" argument, the same one that fell on Boehner's deaf ears during the Clinton impeachment vote. We reap what we sow, yes?

But here we are. The House voted 223-32 to refer contempt charges to the US Attorney for the District of Columbia, although he falls under the supervision of the attorney general, who falls under the supervision of the president--you see where this is going. So did the House Democratic leaders. They argued that this vote gives them a clear path to the US Courts, with the House paying for representation against the US Government, represented by the solicitor general. The NBC drama The West Wing was hardly this good!

Since there is not a lot about what happens next in these cases, our media is digging up the last executive branch official who faced a contempt of Congress charge. She is Anne Buford Gorsuch, who was the EPA administrator for President Reagan in 1982 (actually Interior Secretary James Watt was the last to face contempt charges, but the Reagan administration stepped in at the last minute before the vote could take place.). In 1982, the House voted contempt charges, and the matter was referred to the US attorney for the District of Columbia, but before he could begin the investigation the Reagan administration worked out a deal that allowed some Committee members to review the contested documents in secret, with no staff and no ability to take notes.

That is not instructive to the case today. In 1982, the Reagan administration protected the privilege. They felt that Congress could not demand whenever it wanted to see executive branch communications and documents. To preserve the privilege, they worked out a compromise with the House and all was right with the World. But what is the Bush administration trying to protect? The privilege? Nope. They are trying to protect their hides--communication that showed officials in the White House ordered nine attorneys to be fired for political reasons--something they claimed to not be the case. How do you compromise in that situation? Thus a pickle that the administration now has to deal with--and unfortunately for them, without the assistance of the congressional Republicans who helped hold the nose of the administration when it acted in a way that contradicted the Constitution and the office of the presidency. The congressional Republicans get reminded of that everytime the House holds a hearing--particularly the House Judiciary Committee. It begins with a statement that "we require you (the witness) to take the oath to conform to the practice of this committee." When the Republicans held control of Congress, they allowed executive branch witnesses or appointees to testify without taking the oath. Can you imagine how many in the White House think wistfully of those days?

Bush-Related Activity

President Bush issued what we call a rhetorical signing statement today when he signed HR 5140, the economic stimulus bill that is designed to get the country's economy moving (here is the CRS Summary). The bill is paradoxical and ridiculous for any variety of reasons--ie conservatives who loathe big government wasting our money is sending almost all Americans anywhere between $300-600/individual under the illusion that we will all immediately run down to Best Buy or call up "Mayfall Construction" to build that extra wing on our homes, which would essentially give this country and its economic situation a healthy jumpstart--think of the shock paddles used on people whose heart either has quit pumping or is out of rhythm. In reality what will happen, given the pessimistic outlook of the economy that confronts us every day when we read our newspapers or watch the news, is folks will either bank the money or, more likely, will use it to pay down our credit card bills. Thus this is an enormous boon for the banking and credit industries and not much help to the rest of us. Any ideal how much this is going to cost just to administer the program? Why not use it pay down the government debt? Or use the bipartisan occasion to rein in the outrageous interest rates that credit card companies place in the small print, punishing even faithful users who pay the balance off each month? But I digress. The president, realizing the potential for blowback when the money does not stimulate the economy and things get worst, made sure that he emphasized just how much the Democrats in Congress were on board with this thing. His second paragraph reads:

You know, a lot of folks in America probably were saying that it's impossible for those of us in Washington to find common ground, to reach compromise on important issues. I didn't feel that way; I know the leaders didn't feel that way. And as a result, we have come together on a single mission -- and that is to put the people's interests first. And I really do welcome the members of Congress and I thank you for your hard work.

And if that is not enough, there are the grinning leaders from both parties and chambers of Congress.




But back to the point of the signing statement. This is a classic rhetorical signing ceremony/statement. The president takes the time to thank all the members who worked hard on getting this measure to his desk, what the measure will do for the country, and how important his administration was in getting this measure signed into law.

Second, the Senate Judiciary Committee today held a hearing on S. 2533, the "State Secrets Protection Act" that the Senate is considering. As you know, the State Secrets privilege allows the president to declare certain information a state secret and that protects the information from any outside eyes--including the courts. Unlike when the president asserts a national security claim to censor certain information, a judge gets to be the final arbiter on whether a national security exists. Not so for the state secret, which by itself is troubling. What is even more troubling is the precedent on which it sits--In the U.S. v Reynolds (1953) decision, the Supreme Court allowed for such a right to exist. Nearly 50 years later we find, by accident, that the original claim was used to cover up government culpability in an accident. And in light of that fact, the courts still allow the president to make such a claim with no oversight. As Lou Fisher argued in his testimony at today's hearing, continuing to assert utmost deference to the executive branch "undermines the principle of judicial independence, the essential safeguard of checks and balances, and the right of private litigants to have a fair hearing in court." The new bill would give the courts the right to make a determination--like they do with prior restraint claims--whether the information is legitimate to make such a claim. So far the administration has not issued a veto threat to the bill, but during an October 2007 press briefing with Press Secretary Dana Perino, a reporter asked her about the history of the privilege and about those who criticize this administration for asserting it more than any other, she answered:

Well, I would say that this is a country that's facing unprecedented threats that we've not dealt with before, in terms of al Qaeda and other terrorists. I believe that the Justice Department is judicious in applying the State Secrets Act when it goes in front of the courts. And the fact that the Supreme Court agreed with us is, in our opinion, a good thing.

In sum, she doesn't know about the history of the claim, but if you want to question why the administration has used it as much as it has, it is because of the terrorists. And I suppose that if this bill actually gets a realistic shot at passing both chambers of Congress, the administration will lead the debate (along with Rush Limbaugh, Fox News, the Weekly Standard, and the American Spectator, not to mention the conservatives on the campaign trail) that those who support the bill are giving aid and comfort to our enemy.

Anyone wanna bet?

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.