An Open Letter to the President Elect

Prior to the ratification of the 20th Amendment in 1933, when the candidate won an election, he didn't have to take office until March of the following year. Thus all the time in the world to prepare for taking over. That was then, this is now. Now, the candidate will run non-stop for two years or more for this job, will spend millions of dollars, and once the election has ended, will have no time to catch his breath before it is time to sit in the big chair. And what's worse, there is no longer a honeymoon whereby the new president gets time to learn the position before the system closes in. It used to be 6 months. Now it is 6 minutes. Shortly after taking the oath, President Obama will be held to the 100 day clock, started by FDR, and never repeated since. And he will have to begin to raise money for his second term and the 2012 election.

As bad as it sounds, President-elect Obama does not have to reinvent the wheel. There is a lot of material available that can help him "hit the ground running," as James Pfiffner described the Reagan administration in 1981, and not "hit the ground stumbling" as Stephen Hess described the Clinton administration in 1993.

First up is this "Transition memo" written by Stephen Hess, of the Brookings Institute, which serves as an appetizer, piquing the new president's interest enough to look deeper. His recommendations:

• Resist the temptation to reorganize--there will be great pressures, as the candidate for change, to shake things up inside the Executive Branch. Hess warns this might invite more trouble than it is worth if not carefully thought through.
• Resist the pressure to appoint friends to high places--All President-elect Obama need to read about this is the "Georgia Mafia" that Jimmy Carter brought with him on Inauguration Day 1977. Almost none had any ideal how things worked.
• If you offer a job to someone and they resist or say no, best to leave it at that and not pressure them to take the job (one wonders if this is the case with the new chief of staff, Rahm Emanuel?). Hess refers to Paul O'Neill, Bush's pick as Treasury secretary. He provided a list of reasons why he should not be the Treasury secretary, and when he was sacked two years later, it was for those reasons.
• Be certain you know the skeletons in the closets of your potential nominees, and even if you do your best to carefully vet and it appears that the nominee runs into trouble in the Senate, cut them loose rather than burning capital on a fight. Both Bush 41 and Clinton ran into trouble with high profile nominees who in the end were rejected by the Senate--for Bush 41 it was John Tower, the pick for Defense and for Clinton it was Zoe Baird.
• Don't give major policy responsibility to someone who cannot be fired. Hess is refering here to health care reform in 1993, which Clinton handed to his wife and nearly doomed his presidency. Actually, when you compare Monica Lewinsky and impeachment to the health care reform disaster, it was the latter that came closest to ruining Clinton.

I would add a couple more things.

I would dig up and adapt the Heritage Foundation's Mandate for Leadership, which was written for the in-coming Reagan administration in 1981. Granted, Heritage is a conservative organization and Reagan was a conservative president, but the central message of the publication is bipartisan. Mandate urged Reagan to take control of the bureaucracy at the moment the Marine Band begins to play "Hail to the Chief" on January 20. Reagan's transition team was responsible for vetting any political appointee to make sure that he or she was a true believer. In fact, Pendelton James and Lyn Nofziger had a six point list to weed the good from the bad:

1. Are you a a Carter appointee? If so, you are gone.
2. Are you a Democrat who worked for Reagan? If so, you are gone.
3. Are you a Republican? Are you the best Republican for the job?
4. Are you a Ronald Reagan-George H.W. Bush supporter?
5. Did you work in the Reagan-Bush campaign? How early before the convention?
6. Are you the best qualified person for the job?

The "best qualified" question was the last question asked. It was more important to place the most dedicated partisan into important bureaucratic positions than placing the best qualified. Former Reagan attorney general Ed Meese argued:

We sought to ensure that all political appointees in the agencies were vetted through the White House personnel process, and to have a series of orientation seminars for all high-ranking officials on the various aspects of the Reagan program. We wanted our appointees to be the President's ambassadors to the agencies, not the other way around.

This is something that every president since Reagan has understood. Failure to gain early control over the bureaucratic process can lead to major problems down the road--bureaucratic inertia can be the death of any president, regardless of what his public approval numbers are.

The new president should also be cautioned not to jettison Bush's orders simply because they were his orders. For example, President Bush issued Executive Order 13,422 in early 2007 that gave the White House even greater leverage over the bureaucracy. 13,422 is an extension of several orders that began in the Reagan administration and were modified in the Clinton administration. This order both gives significant management authority to the Office of Management and Budget--the "enforcer" of the president's will in the bureaucracy--and it puts a set of eyes and ears in the form of "Regulatory Policy Officers" right into the key bureaucratic agencies. In the Reagan and Clinton administrations, where the president stood on an issue often was subtle--in the ether. Bush's order makes the president's wishes overt by putting his people right over the shoulders of these bureaucrats.

This leaves me with my final bit of advice. I know that you eschewed the use of the signing statement and other unilateral devices while on the campaign. That is fine. But now that you are getting ready to govern, it is time you take out the keys and open up the cabinet and learn what these devices do, because at some point you will need to use them. These devices include the signing statement, executive orders, presidential proclamations and memoranda, and each can be useful in securing political objectives that are either too contentious or not likely to be considered by the Congress. While the general public doesn't pay much attention to these things (unless of course you abuse them), specialized interest groups do, and you can get a lot of mileage by deploying them every so often.

Case in point. In 1996, President Clinton was unable to gain concessions on an environmental bill that was important to various environmental organizations that supported the administration. In a signing statement, President Clinton mentioned that he was disappointed that the Congress would not work with him on this important provision and would continue to work to gain concessions in future bills. One of the key environmental groups sent a letter to its members on the loss, but also in support of Clinton, who mentioned their cause in his signing statement. A little goes a long way. Take the current president. When he came to office in 2001, one of his important constituents was evangelicals, who had been pushing to gain access over the distribution of federal money that goes to charitable organizations. In every attempt by the congressional Republicans during the Clinton years was knocked down via veto threat or veto because Clinton believed it violated the First Amendment. Bush promised not just to release federal money to churches who do charity work, but also to create an "Office of Faith Based Initiatives" that would reach out from the White House to the religious communities. When he tried to get Congress to create such an office, he ran into a wall. Thus he turned to the executive order, and created an Office of Faith Based Initiatives over a week after taking office.

Thus I am sure Mr. Obama is getting alot of advice, and I would end by urging him to look to recent history to understand where potential landmines lay ahead. What happens in these first few months of his presidency can spell the different between success and failure.

Interesting Signing Statements

The administration has been on a tear the past two weeks as the time runs out on the Bush presidency. First, on October 8, President Bush issued two separate signing statements to the same bill--HR 7081--which was the much anticipated bill regarding US nuclear cooperation with India. And this signing statement was as much anticipated as the bill itself was--for India.

Ever since the administration issued its signing statement two years ago to the first round of nuclear trade with India, which I blogged here, the Indian press has been keenly interested in the signing statement. Two years ago, the signing statement was used to mollify the Indian Government over what it felt was a violation of its sovereignty by the United States Congress, which placed all kinds of conditions for the deal to go through.

Thus when Secretary of State Rice was in India recently, her word that the new bill would meet with India's approval was not good enough--India required her to show them Bush's proposed signing statement before they were "basically OK with it."

President Bush issued two signing statements to the bill--the first, done in a formal signing ceremony--with a bipartisan contingent of congresspersons on hand, as well as representatives from the diplomatic corps and the press, and is designed to be as positive as possible about the good work at hand (what is interesting is the size of the gathering and the lack of significant press attention in the US). The second signing statement is addressed to the Indian government and is short and sweet--to paraphrase: "Despite what the Congress may have placed in riders, this bill will give you exactly what we promised." This is precisely what the Indian press picked up on, as this report in the Times of India confirms (see second paragraph).

Then on Tuesday the 14th, President Bush issued two different signing statements that have gotten the press in the US all in a bunch. The first is HR 928, the "Inspector General Reform Act of 2008" and the second is S. 3001, the "Duncan Hunter National Defense Authorization Act for FY 2009."

In the first, President Bush challenged two provisions of the bill: Section 6, which allows the Inspectors General to seek separate counsel if it chooses to do so. In this challenge, President Bush declares that ultimate interpretation of the law lies with the Attorney General (who is under the direct supervision of the Attorney General). The second is Section 8, which requires the Inspector General to transmit budget estimates--with specific criteria--to the President for his approval, which the president is then required to transmit to the Congress in his annual budget. In this challenge, President Bush argues that the power to recommend is the president's only, and Congress may not tell him what things he should or should not include in that request (although the Congress normally places ample pressure on the president to get him to give them what they want).

In the second, President Bush issued four separate challenges to the bill, and an additional challenge that remains vague. Also, the reasons for disagreement remain mysterious as Bush dumps them together: Bush writes, "Provisions of the Act, including sections 851, 901, 1211(2), and 1508(b), 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 conduct diplomatic negotiations, to supervise the executive branch, to appoint officers of the United States, and to execute his authority as Commander in Chief." And then the best one of all: "The executive branch shall continue to construe such provisions in a manner consistent with the constitutional authority and obligations of the President." Which ones again?

And then today, President Bush issued a public signing statement to commemorate the signing of HR 7222, the "Andean Trade Preference Act Extension," which was signed in Room 350 of the Eisenhower Building, a room used when the White House wants a lot of press attention. This is a great signing ceremony not because it is accompanied with lots of pictures (including the picture of the signing desk, with the sign "Opportunities Through Trade"), but because the person doing the transcription had to correct, and make note of, an error in Bush's language. President Bush, in explaining the bill, called it the "Andea Trade Preference Act", which the transcriptionist had to add, the "Andea (sic) Trade Preference Act"--it should have been the "Andean Trade Preference Act." As far as I can remember, this is a first.

Unitary Executive, Presidential Unilateralism, Presidential Administration

Professor Dana Nelson, a faculty member in the English Department at Vanderbilt University, has written an OpEd piece in today's LA Times titled "The 'Unitary Executive' Question." And true to the title, it leaves the reader with more questions than answers.

What provoked the article was Senator Biden's use of the term during his debate with Governor Palin in regards to his characterization of vice president Cheney as the "most dangerous vice president we've had...in American history..."

Dr. Nelson proceeds to describe the theory in the familiar terms of its critics ("dangerous", "so-called", etc.), and while she does acknowledge that it has been embraced by Democrat and Republican alike, this is an article about Republicans and the current Bush administration's use of the theory. Here are my problems with the article:

1. In the years that followed, (the) Heritage Foundation and (the) Federalist Society conservatives worked to provide a constitutional cover for this theory, producing thousands of pages in the 1990s claiming--often erroneously and misleadingly--that the framers themselves had intended this model for the office of the presidency.

We do not know what she claims is misleading or erroneous. The founding fathers clearly were in support of a unitary executive--the debates produced a resolution for a plural presidency--a three person executive board that would need a vote of 2 of 3 executive officers for bills to be signed into law--and rejected it in favor of a single president--a unitary presidency. In fact, Hamilton argues in "Federalist 70" that the "ingredients which constitute energy in the executive are unity; duration; an adequate provision for its support; and competent powers." Now she is correct that some of the theory's more dedicated proponents attempt to make the case that the aggressive unilateralism that has come to define the actions of contemporary presidents has been there since day one. It is here that these proponents of the unitary executive attempt to fit square pegs in round holes (and even though there is little support for this contention, they still manage to get published in some of our finer academic publishing institutions, such as Yale University Press).

2. Unitarians (for lack of a better word) want to expand the many existing uncheckable executive powers--such as executive orders, decrees, memorandums, proclamations, national security directives and legislative signing statements--that already allow presidents to enact a good deal of foreign and domestic policy without aid, interference or consent from Congress.

This ideal that there is no recourse for the Congress, the courts, or the public comes from the fact that President Bush pushed executive orders, signing statements, proclamations, and the like with the complete agreement and support, from 2002-2006, of the United States Congress. Because the Congress refused to question the actions of the Bush administration is not the same thing as saying these actions are uncheckable or unreviewable. But even with a complicit Congress and seemingly complicit Supreme Court, there were moments when they did say enough was enough. For instance, when President Bush attempted to gut the meaning of an important provision in Sarbanes-Oxley, Senators Patrick Leahy (D.VT) and Charles Grassley (R. IA) hounded the administration to the point of forcing them to back down (see this paper for the complete explanation of the incident). And I might be wrong about this, but weren't the military tribunals created by Bush via an order struck down in the Supreme Court decision Hamdan v Rumsfeld? Furthermore, since the Democrats have taken over control of the Congress, the Bush administration has issued just 18 signing statements with just 17 challenges.

3. Dr. Nelson's argument contains contradictions. For instance, when writing about the dangers of the unitary executive, she describes how it allows the president to have undivided presidential control of the executive branch and its agencies..., and yet midway through the article, she blames Congress for handing to the executive branch, during times of crisis, unchecked power: Congress has granted unprecendented powers to the executive and to an unelected and unaccountable secretary of the Treasury. Which is it? Either recent presidents, and their support for the unitary executive, have enabled them to seize control over the executive branch agencies or the executive branch agencies are "accountable to none"?

Conclusion

I think that Dr. Nelson could have made better use of the space provided to her to theorize about which unitary executive is likely to emerge in the future:

1) The one that has been developed as a defensive strategy to protect the powers and policies of the presidency, which moves incrementally so not to arouse those outside the executive branch, and also abides by the norms and routines surrounding unilateralism. For example, there was a process in place for the signing statement. An enrolled bill would go to two places once it was accepted by the White House. First, the OMB circulated a copy to the affected agencies, who could recommend presidential action and ask for language to be added to a signing statement. Also, a copy went to the OLC, which scrutinized it carefully for anything that might negatively effect the constitutional protections for the presidency or for individuals. OLC would send their recommendations to OMB, which would compile all the information together, including a draft signing statement, for the president's consideration. Second, it went to the White House for the president's consideration. His advisors would consider the draft signing statement in light of the compromises the president had made with Congress or interest groups, and then strike some things out or add additional language.

2) The one developed in the Bush administration that is primarily an offensive theory about restoring the presidency to some mythological "king-on-his-royal throne" that existed in the days before Watergate. This unitary executive theory does not seem to care about the long range effects of contemporary action--for instance, the high profile of both the signing statement and the unitary executive theory. These things are regarded as obscure for a reason. What the Bush administration has done is to use the veil of the unitary executive to hide pure unilateralism in the name of politics. Thus with regards to the signing statement, the process that has been in place and worked so well since Reagan has been completely up-ended. For one, when the president makes a challenge in the signing statement, he refuses to explain to anyone exactly what he is objecting to or the constitutional reasons for the objection. For two, the signing statement process itself has been augmented in a negative way. Not only does a bill go to OMB and OLC on its way to the White House, but now it also veers off to the vice president's office, where a "red pen" eviscerates the bill, including provisions that have been carefully negotiated with the Congress, such as the famous case of the signing of the 2005 detainee treatment bill.

I am currently working on an article to be published early next year in a journal that makes this point about the two versions of the unitary executive theory which builds on this fine article by Dean Harold J. Krent, which argues that it is not unitarian values that are being pushed by President Bush, but rather naked unilateralism.

The way the administration has pushed unilateral action in open defiance of the Constitution explains why there have been such high profile defections by leading conservative scholars, such as Jack Goldsmith, Steven Calabresi, Doug Kmiec, and others. Thus it remains to be seen whether the administration has not just set back the cause of restoring the powers of the presidency (despite their open commitments to leave the institution in better shape than they found it), but also whether it has killed the unitary executive. The term has become so polarized and poisoned that it may be in the best interest of any future president to call their defense of signing statements, executive orders, and the like by some other name. The Clinton administration called the unitary executive presidential administration. That just doesn't have the same punch, but it may be what we are talking about a year from now.

President Obtuse

There are three things in common with the signing statements President Bush issues that challenges the constitutionality of the bill he signs into law in the last two years of his presidency: The first is how few challenges he has issued. This was a president that cranked out over 1100 challenges in his first six years in office. In his final two years, he has issued just 12! Second, he has dropped his complaint that a bill violates his ability to supervise the unitary executive branch, declaring now that they violate his ability to supervise the executive branch. And third, his challenges are so vague that it is impossible to keep an accurate account or to get a clear ideal of why he is objecting to the provision(s), or even what constitutional prerogative is being violated.

President Bush issued his 168th signing statement on September 30th (#169 came on October 1), and his 1,162nd constitutional objection. And true to form, I can only count the objection as one because it is simply impossible to ascertain just how many provisions are at hand.

President Bush signed a continuing resolution that funded defense and homeland security, as well as lifted the ban on drilling at the Outer Continental Shelf, though he noted his disappointment that this was a "long-term continuing resolution" and not an appropriation. In the last paragraph, President Bush writes:

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

This is the mark of David Addington, by the way. Addington has inserted himself into the enrolled bill process, giving his office gatekeeping responsibility over legislation that comes to the president's desk for signature. Addington has insisted on reviewing all legislation before the president sees it, and even the power to rescind compromises the White House makes with the Congress, no matter how much time and energy went into forging the agreement in the first place (the infamous signing statement to the Detainee Treatment Act on December 30, 2005 was the work of David Addington).

Addington has special glee frustrating anyone wishing to look over the shoulder of the White House, and after the signing statement became a public controversy in 2006, he has made the constitutional signing statement more and more obtuse. And this particular signing statement is a classic example. The bill might be inconsistent with Constitutional responsibilities and to avoid this, these provisions will be construed in the same manner as I have previously stated in regard to similar provisions.

Thanks for clearing that up.

The Signing Statement Revisited

The House Armed Services Committee (HASC) recently released a report on its findings regarding the Bush administration's use of the presidential signing statement--although one could argue that it is too little, too late--the Bush administration has all but abandoned the signing statement as its preferred device to control policy. Since the Democrats have taken control of the Congress in 2007, the administration has issued just nine statements, and from this nine have challenged a paltry 16 provisions of law. In 2006 alone, the administration issued a total of 28 signing statements with 201 challenges!

The HASC Subcommittee on Oversight and Investigations held hearings regarding the signing statement to the National Defense Authorization act--a bill that had been vetoed and then, after fast tracking it for passage, the administration worked out all the problems with the Congress, only to then single out a number of provisions as constitutionally defective. One of those provisions was the "Commission on Wartime Contracting," created to investigate war profiteering by US contractors.

The Committee made five findings:

* The signing statement President Bush added to the authorization bill claimed there were defective provisions, and implied they were defective for the same reasons of past bills, and then did little to claim what he would do. Actually, if they wanted to gripe about a challenge that said nothing, then they should have cited the signing statement to the "Consolidated Appropriations Act" of 2008. There, Bush declared:

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

If you were wondering, "what is he talking about," you would be in the same boat with the rest of us. The fact of the matter, since the signing statement made its official debut in 2006, the administration has responded to all the public interest by making more difficult to track what it is doing. There is the vague statements that leave out what the objection is about and what he intends to do about it. And, for those interested in the unitary executive, you will be sad to learn that it has disappeared from the public pronouncements of the Bush administration. Where it once was a part of every challenge the president issued ("...and to supervise the unitary executive branch") it has gone MIA. Now, when there is a challenge, the president simply states "...and to supervise the executive branch."

* Presidents have "issued signing statements for quite some time,[while] this President has issued a significantly larger percentage of signing statements challenging or objecting to various provisions of law."

This is priceless. Is the Congress saying that a signing statement that contains challenges claiming provisions are defunct is OK so long as it doesn't happen all the time? If ever a report showed a partisan tinge, it is in this claim. "We, the Democrats, do not object to the use of the signing statement. We simply object to the way that President Bush has used them."

The fact of the matter is, the members of the Subcommittee haven't the foggiest ideal how the signing statement has been used in the past.

* The signing statement may actually "serve a legitimate function as a tool for continuing dialogue between the President, Congress, and the public. On the other hand, signing stateents may be a mechanism to expand executive authority at the expense of the legislature."

It is funny that they claim a legitimate role for the signing statement in a report that is so damning. The reason it is funny--or perhaps ironic-is because this particular signing statement played the role they praise. President Bush objected to the "Commission on Wartime Contracting," which is section 841 of the bill. In particular, the bill would allow for half the members to be chosen by Democrats and Republicans in Congress. Bush objected to this particular provision because it violated his appointment powers, vested to him by Article II of the Constitution. In essence, Bush and his Republican allies in Congress could have prevented this Commission from ever having one meeting by withholding their appointees. Instead, they used that challenge as a starting point in negotiations with congressional Democrats over the scope of the Commission's investigations and what access to information it would have. Thus the signing statement challenge essentially places a second track onto the legislative process that starts with the president and ends with a compromise between the Congress and the president, leading to execution of the law. There is nothing new here. This is the role that the signing statement has played in the past, and it is a useful role. The congressional Democrats praise it, but do not praise the role it played regarding this particular signing statement.

* The signing statement can provide a "roadmap" which demonstrates which provisions "merit a higher degree of oversight as it tracks implementation."

In essence, the president needs to be clear what provisions he finds constitutionally troubling so that the Congress can decide which actions to take. But first, it needs to be certain that the president is executing the law as the Congress intended, because if he isn't, then the Congress needs to decide what actions it needs to take, from remedying the provision to suing the president in Federal Court.

* Because the Congress does not understand how President Bush has used the signing statement, it is unsure exactly how to respond to it.

The authors note that there are several various pieces of legislation dealing with the signing statement, some of which are redundant. Yet no one is certain which piece will do the trick. The Committee also refers to the law that requires the administration to inform Congress whenever it refuses to execute the law. It claims this also extends to the military and the executive branch agencies--they are to inform Congress whenever they are ordered to refuse execution of the law.

As I have noted before, this law built upon a law passed in 1978 that required the administration to inform Congress whenever it decide not to defend a defective law. In 2002, the Congress added on to that by requiring the administration to also inform Congress whenever it refused to defend or execute the law. As I have noted elsewhere (and something this Committee overlooks), I had a FOIA request answered regarding this very question. I sent a FOIA to the Bush DOJ asking them to send me any communication they had with Congress regarding this law, and they sent me a list of laws that were either not defended or executed, but the list was from the Clinton administration.

In the signing statement to the 2002 law, the administration refused to recognize the demand by the Congress, and the information they sent me void of any challenges they had made demonstrates that they have made good on that particular challenge. Yet Congress has done nothing to determine why this has happened.

The report ends with "Ongoing Actions," which really isn't much. There are three actions, which includes more monitoring and continued study. Number two, however, is interesting if they actually see it through. Action #2 states that they "may" (and the operative word is "may") "task the GAO to conduct a study of National Defense Authorization Acts, or other laws within HASC jurisdiction..." If you look at bills that consistently receive a signing statement, then the "National Defense Authorization Acts" consistently receive challenges from signing statements regardless of president. It was the NDAA bills where Clinton ended up in a firefight with Congress from 1999 to the moment he left office. In 1999, the Congress attempted to create a layer inside the Department of Energy that was out of the control of the president. Clinton first disregarded the law and placed his own Secretary of Energy into the position, and then when he worked out an agreement with the Congress to allow the new layer to go into place, he got into another fight in 2000 over how this person could be removed from office. Congress said the person could only be removed for such things as malfeascence in office or neglect of duty, and Clinton defined neglect of duty as "a failure to follow the lawful directives of the President."

It is a shame that the HASC didn't attempt to sample the research that has been done on the signing statement. If it had, it would have been able to answer some of the questions that it had during the hearings and in this report. That said, it is great to see that there is interest in the presidential signing statement. The "proof in the pudding" moment will come if the Congress maintains its interest once the Bush administration leaves office.

Heads Up

For those of you interested in issues of presidential power, in particular presidential power after Bush, then there is a conference just for you.

UC Berkeley is holding a conference, titled "The American Presidency at War," that will cover a number of topics that are currently prescient. And they have a slate of participants from all the best schools (save Miami University, which I am sure is not an oversight on their part).

They cover the Imperial Presidency, which has, as a panelist, John Yoo from Berkeley Law School--which I assume he will attend since it is in his own backyard but I wouldn't hold my breath given he has a tendency to blow off these things at the last minute.

They also have a panel--actually a "Roundtable Discussion," on "Rethinking Presidential Power in the 21st Century" that features Stephen Skowronek (who has his own view of presidential power) as well as William Howell, who also has his own view of presidential power based in rational actor theory.

What you won't find anywhere in the list is a unitarian. A scholar who is a proponent of the unitary executive theory and what it means to presidential power in the 21st century. Yoo is not a unitarian--I would say he gave up his right to call himself that based upon his behavior in the Bush administration, where he forced legal reasoning to meet political ends--and while there are many who say that is just what a unitarian is, it isn't. Not close. In fact, ask one of the father's of the theory--Steve Calabresi--what he thinks about Yoo and his practice, and he will tell you the same thing.

It is actually a shame that there isn't someone representing--honestly--the theory at this conference because I am positive that it will be a part of every panel. And every panel will have a discussion that paints the unitary executive theory as the imperial presidency or as fascism in disguise. And there will be a cause celebre collectively that the Bush administration's days are numbered, and with it, the unitary executive theory.

But you and I know better.

Time To Step Up

My friend Louis Fisher, Specialist in Constitutional Law to the Law Library at the Library of Congress, has penned an article for the "Legal Times (sub. req.)" attacking the plan offered up by former secretaries of state James Baker III (under Bush I) and Warren Christopher (under Bill Clinton) to overhaul the War Powers Act of 1973 (which has never worked).

The two came together at the Miller Center at the University of Virginia as part of the "National War Powers Commission" in order to develop a "bipartisan" approach to rectify how America goes to war. Their plan, which would ideally be packaged in the "War Powers Consultation Act of 2009," and would:

• Force the president to consult with Congress before sending American troops into "significant armed conflict," an example of which combat operations lasting more than one week;

• Establish yet another ad hoc committee between the House and Senate of leaders from both parties; and

• Requires Congress to act on a presidential request by voting up or down within 30 days.

If you are familiar with the War Powers Act, then it should be easy to see how much of a failure this new law would be. Which is where Fisher comes in.

Fisher argues that the "report falls short in either offering a practical solution to the war powers debate or protecting the rule of constitutional law. As for giving respect to the three branches, the proposed War Powers Consultation Act heavily favors the executive branch." Fisher first discusses how the report, and supporters of the power of the president to wage war, distorts and destroys the work by the Founders while also taking out of context the words of prominent jurists like John Marshall--in fact, this is a similar line of attack that can be found in political scientist James Pfiffner's new book, Power Play. But to be honest, I have never been a fan of exercises such as these--arguing what the Founders did or did not think. The fact of the matter is we currently have a president with powers that extend far beyond what anyone would have imagined in the 17th or 18th centuries.

Instead, Fisher makes two compelling arguments in the present against this proposal: the establishment of another congressional committee and the prerogative of doing nothing.

Baker and Christopher urge the establishment of a "consultative committee" that is made up of the speaker of the House, the Senate majority leader, the House and Senate minority leaders, and the chair and ranking members of eight different committees. This would give Congress "access to intelligence and a full time staff for studying national security issues," but Fisher argues in reality it would "give a mere handful of members access to intelligence and staff, quite likely with the admonition not to share sensitive information with anyone else." But if history is any guide (like the "Gang of Eight" on intelligence issues), these sorts of committees end up being "at the mercy of executive officials who" decide what information they are willing to share. Furthermore, these committee members were forbidden from taking notes, speaking with their colleagues or staff, or seeking independent verification of the information they were told. Fisher argues that "Congress should not make the same mistake and transfer its war power to a small subgroup of legislators. The war power belongs to the institution as a whole, including its most junior members (emphasis added)."

The second problem is Congress is required to take action on a president's request to use force. The new law would require Congress to vote on a concurrent resolution (which must be passed by both houses but is not sent to the president for his signature). If the concurrent resolution is not passed, Congress could then put together a joint resolution of disapproval, which does go to the president for his signature. Fisher argues that first, Congress should not have to vote twice to make the point that it does not want war, and second, that the joint resolution could be vetoed by the president, thus forcing Congress do muster the 2/3 majority to override the veto. As others pointed out, in today's era of high political polarization, it is going to be difficult for Congress to ever get the numbers to override. But I think more to the point, as Fisher aptly points out, this scenario places the war power in the hands of the president, and not the Congress. The president goes to Congress to ask its approval to commit forces into significant armed conflict, and then Congress may or may not approve. This flies in the face of the Constitution, where the war power is firmly grounded in Article I. Thus the Congress has every right under its prerogatives not to act.

But there is nothing unconstitutional about Congress controlling its prerogatives by doing nothing. If the president submits a proposal to use military force and Congress ignores it, if the president requests funds to start or continue a war and Congress provides none, then Congress has decided. No offensive actions are allowed.

And that is precisely right. It is no mystery how this special commission came to the conclusion that the war power can only be tempered when Congress gets into the business of signing off on the committal of US forces--this has every mark of Secretary Baker, who was first part of the Reagan administration and the mantra that success only happens when a powerful presidency is restored. Fisher admonishes this thinking, and consistent with nearly everything he has written in the past, demands that Congress assert itself as the "First Branch" of government--to jealously guard its prerogatives in the way that the president guards his. Only then will the use of force come back into the constitutional fold in the way the Founders believed it to be. But given the successive string of terrible congresses we have gotten going back to the 107th, it isn't likely to happen anytime soon.

House Judiciary Committee

The House Judiciary Committee is holding another round of hearings on executive power and the Bush administration. For the most part, the same cast of characters have been brought in to say the same predictable things.

I am not going to complain, yet again, the consistent omission from these hearings of a political science who studies presidential power. The panelists was stacked with lawyers. And if they were not lawyers, they were the head of some cause group. I continue to wonder why the Congress wishes to leave out an important perspective on presidential power?

That said, the Democrats continue to try to screw up their electoral chances by bringing to the front individuals with whom most thinking persons in the heartland would find crazy. Case in point. Chairman John Conyers (D. MI) invited Vincent Bugliosi, whose claim to fame was the prosecutor of Charles Manson (and do we really need to praise his skills in that case since it would have taken a moron not to convict Manson), to testify as he has written a book with the low key title, "The Prosecution of George W. Bush for Murder." Or former member of Congress Elizabeth Holtzman, who left the Congress in 1981 (!), recommending her book (for all its goodies), "The Impeachment of George W. Bush." If Joe or Jane Lunchbox were to tune into C-SPAN at the moment, they would find these people hysterics and would make the connection that they were testifying to Congress at the invitation of the Democrats. If you get the chance, check out Jeremy Rabkin's nonplussed testimony at what he was hearing by his fellow panelists, which he implored to keep in mind the America that is outside the Beltway Bubble.

Midnight Regulations

Mainstream political science on the issue of presidential power tells us that the president is more powerful at the beginning of his presidency than at the end of his time in office. Power to these folks can be measured in what the occupant brings to the table--his own power to get his opponents (and allies) to do what he wants them to do. Thus there are times when the president has more leverage over the opposition (think President Bush in the immediate days and weeks following 9/11) and there will be times when the president is at the short end of the imbalance (think President Bush in the last days and weeks).

When we deal with a two term president like Reagan, Clinton, and now Bush, once that last midterm is passed all eyes start looking to the next president. And in that last year, the president gets hung with the label "lame duck," unable to move anything through the Congress (especially when it is held by the opposition party) or to move the public to follow him in his cause. This is how political scientists William Howell and Kenneth Mayer described the president once the election for the next president is held:

The moment the public boots him from office, the president's promises turn hollow, his threats idle, his political capital effete. As there is little presidents can do for those who occupy other parts of the federal government, there is little reason for them to expend much effort, or time, advancing his agenda. The president's capacity to negotiate, broker deals, and ultimately persuade is, at last, depleted.

But yet the president continues to push his policy and he continues to defend and advance the powers of his office. In a 2005 study in Presidential Studies Quarterly, Howell and Mayer looked at the final days of a president who has either lost a re-election bid or is a two term president on his way out, and they found great evidence of a president still exercising tremendous power. They looked at President Clinton, who used executive orders to advance environmental policy and proclamations to take millions of acres of private land in the Southwest and make them public, much to the ire of ranchers and developers. Both look at the Federal Register, where all administrative rules are published, and find that in those final days, the number of pages in the Register increase rather than decrease, providing evidence of a president still vigorously pushing his policy administratively rather than legislatively.

The Mercatus Center at George Mason released a study this year confirming the findings by Howell and Mayer. The term for the flurry of administrative rules is "Midnight Regulations" taken after the "Midnight Judges" of the Adams administration in 1801. The term "Midnight Regulations" was invented to describe what President Carter accomplished right before leaving office in 1981. Carter set a record for number of pages printed in the Register which stood until Clinton, who "published more than 26,000 pages" in just the final three months of his presidency.

These are important for two reasons. First, they often tie the hands of the incoming president who ends up stuck with these decisions. For instance, when Bush came into office in 2001, he attempted to undue the environmental policy changes made by President Clinton and found that he would expend all of his energy from his other policy promises and still not undue the regulation. In fact, the Mercatus report confirmed this fact that a lame duck president is anything but. They refer to a Wake Forest Law Review article (.pdf required) that looked at George H.W. Bush's last minute regulations and Clintons. Clinton was able only to undo 9% of Bush's regulations while accepting 43%, and George W. Bush was able to undo only 3% of Clinton's regulations while accepting 82%.

Second, presidents can use these last minute regulations in order to fulfill policy obligations or to protect the prerogatives of the office. President Clinton's environmental order and public lands proclamation was designed also to place his stamp as an "environmental" presidency. Promises he made to various interests on the campaign trail. Since no one was watching, what better time to act "alone?"

Which brings me back to the issue of "power." The reason why so many traditional and mainstream scholars miss these actions is because the are so tied to seeing power as a calculus--when the president is new or popular, he has power. Instead, an alternative measure of power exists that is not as sensitive to such things as popularity and time in office. Call it presidential unilateralism, which instead suggests that the president carefully monitors the political system to determine what sorts of strategies to employ--when he has a good working relationship with the Congress or the public, he is more like to involve outside actors when developing and executing policy. But when conditions turn harsh, the president is forced to turn to other strategies in order to succeed--signing statements, executive orders, proclamations--you name it. And for the most part he can embark on a unilateral strategy so long as he does not step on the collective toes of Congree or as long as he does not raise the curiosity of the press and public. Thus at the end of a president's time in office, when Congress is unwilling to work with him and the press no longer does his bidding, the president is forced into a unilateral strategy to finish what needs finished.

Thus pay attention to the actions of President Bush in the coming months. You might be surprised at the bold moves coming from a president everyone assumes is weak.

Update, 7/21

I heard from Charlie Savage this morning, who was kind enough to send me to an article he and Robert Pear wrote in May regarding the Bush administration and midnight regulations, the subject of this post.

The administration issued a mandate to all agencies (.pdf) that they were to file all proposals for new regulations by June 1 and all are prohibited from issuing any final regulations after November 1. According to the White House, these two orders are "good government" in that there are no regulations that are hastily pushed through without proper vetting. The article quotes "legal specialists" who claim that the policy also insures that the policy protects orders from being overturned by new president, although as this post points out, it is incredibly difficult for the new administration to overturn regulations from the previous administration given how those regulations are fiercely protected by vested interests, thus forcing a new president to burn a lot of energy that could be better spent on campaign promises.

Despite the stated promises, there continue to be great pressures on the administration from their friends in the business communities--especially energy concerns--who will be very worried should Senator Obama win the presidency this November. They will seek regulatory protections to be put in place before the Senator becomes president in January. As I said when I closed this post yesterday--keep your eyes on the administration in those final months in office.

Slapping Them Down

President Bush today issued signing statement #164 of his administration. This was a rhetorical signing statement that came complete with all the trappings of the Rose Garden--a favorite spot for any president's media handlers because it not only highlights the majesty of the presidency, but it is also a beautiful spot for pictures. In fact, during a presidential election featuring an incumbent in the race. If the incumbent pulls well ahead of his challenger, he will often apply a press management technique that limits access to photo-ops at the White House Rose Garden. The strategy is referred to as the "Rose Garden" strategy.

It does not look like the president is going to get much to sign in the remaining days and months of his presidency. The Congress is set to adjourn in late September, and Senate Majority Leader Reid told "The Hill" newspaper today that he does not think that the president will get one more spending bill for his signature, which means that whatever comes his way will be continuing resolutions to fund existing programs at last fiscal year's limits.

The president could, of course, force the Congress to stay in D.C. in special session as Truman did back in 1948, but it doesn't seem likely that he will. The president seems as eager to leave the White House as the Democrats are to see him leave. He began talking about his presidency in the past tense some time ago. But even if he does see a number of bills (and there are important ones out there), it appears his taste for the "constitutional" type of signing statement has tempered ever since the Democrats took control of the Congress in January 2007. Since that time, President Bush has only challenged a little over 20 provisions of bills he has signed into law--dropping him down to what is the norm for previous presidents in any given year.

Signing Statements

Yesterday, President Bush issued a signing statement (#162 for those counting) to H.R. 2642, which is a supplemental appropriations bills funding defense/military related programs. This particular signing statement is purely rhetorical, where the president emphasizes how political differences were set aside because, at the end of the day, we are all "Americans." In fact, the remainder of the statement applauds the people who have volunteered to serve in the military, whom we "owe" our gratitude and "unflinching support." And the president has a great deal to crow about as he got most of what he wanted from congressional Democrats who seem either unable or unwilling to challenge him in the area of the use of military force. As President Bush concludes: "This bill shows the American people that even in an election year, Republicans and Democrats can come together to stand behind our troops and their families." Even when I decide to send these brave men and women into Iran.

On a similar matter, something has recently happened to underscore the real political importance of the signing statement--importance that is completely overlooked by almost all critics of the device--critics who fail to dig deeper into the device and strip away that rhetoric that surrounds it.

Back in January I noted Bush's signing statement challenging four provisions of H.R. 4986, the National Defense Authorization Act for FY 2008. One of the provisions, section 841 was added to the authorization bill by Senate Democrats Jim Webb and Claire McCaskill and created a "Commission on Wartime Contracting," which contained eight members (four appointed by the Democrats in Congress, two by the Republican minority leaders in the House and Senate, and two by the Bush administration).

President Bush, upon signing the bill, challenged the constitutional legitimacy of the Commission as a "hybrid, one that contained both legislative and executive members. President Bush declared that the section would "impose requirements that could inhibit the President's ability to carry out his constitutional obligations to take care that the laws be faithfully executed..." Because this Commission could only go into effect once all the members were appointed, the President (and his Republican allies in Congress) could essentially refuse appointment of members to keep the Commission on ice. But that didn't happen. The White House and congressional leaders from both parties came together to work out precisely what this Commission would do and came to a satisfactory agreement which allowed the Commission to go forward.

Thus in this instance the signing statement served an important purpose to continue the negotiation between the Congress and the president where the legislative bargaining process failed. Hence the signing statement does not represent a snub to the intent of Congress but rather a clarification of objectionable or ill-defined language and provisions.

If you look backwards in previous administrations, you will find the signing statement has served similar purposes to either work out ad hoc agreements between the branches or follow up legislation that fixes defective provisions. For instance, in the heat of the 1996 election, Congress passed a defense authorization bill that contained a provision requiring the discharge of any HIV-positive military personnel that came under fire not just from the Clinton White House, but also the Joint Chiefs of Staff. The provision contained a time period of months in the future when it would take effect, thus giving the Clinton White House time to note in its signing statement that this provision would never be executed, starting a bargaining process with congressional Republicans that led to passage of a killer law that negated the defective provision. Thus everybody won--the author of the provision--"B-1" Bob Dornan--was able to campaign for the presidency on an "anti-gay" platform, the Clinton administration got to campaign on a pro-civil liberty/homosexual rights platform (with homosexuals being an important constituency) and the Congress got to defend its prerogatives by making the president execute the law as intended, not as he chose to execute it.

So important focus should rest on the use of the signing statement as an important device that allows the Congress and the president to continue communication even after legislation has been signed into law. And continued interbranch communication should be a good thing, shouldn't it?

Heads Up

Tomorrow, June 27 at 10:00 a.m., Northwestern University Law Professor, Founding Father of the Federalist Society, Founding Father of the Unitary Executive, and self-professed creator of the presidential signing statement Steven Calabresi will be on hand to take your questions at the Washington Post.

Calabresi's book on the unitary executive is due out next month (my co-edited book on the same subject will follow). You can submit your questions now.

The Post is tying Calabresi's visit with today's Judiciary Committee Subcommittee on the Constitution, Civil Rights, and Civil Liberties hearing on "Administration Lawyers and Administration Interrogation Rules." This hearing had, as "invited" guests, former Clinton OLC head Christopher Schroeder, and representing the Bush administration, VP chief of staff David Addington, and former OLC-honcho John Yoo. Of course the real focus was on Addington and Yoo, with Schroeder playing the straight man.

For most folks who are interested in issues of presidential power and watch C-SPAN, this was probably your first time to actually SEE and HEAR David Addington, and I am willing to bet that many of you were surprised to see his did not have horns on head or a spiked tail and fangs. For nearly everyone who has written on Addington, all have noted how he gets his way by bullying others in meetings, that he is sarcastic, and that he has a mind for legal details. And that was on display today. He got into a testy exchange with Robert Delahunty of Mass, who wasn't supposed to be there in the first place. Any way, their exchange involved Al Qaeda, classified information, and C-SPAN. Or better yet, when asked if he would be willing to come back and testify, perhaps in executive committee, over information that was privileged or classified. Yoo said he would be glad to come back if necessary and Addington flatly said "no." He didn't deal in any privileged information, and when challenged that he did refuse to comment on classified information, to which he said: "I am here now. Ask me whatever you want."

The best is the submitted testimony. Schroeder and Yoo, being law faculty, submit their 20 page or so report. Addington does not submit anything. Added for him is a 51 page series of letters between the Committee and Addington or his lawyer.

By the way--it did come up today. Question: "Is the vice president an executive branch agent or a legislative agent?" The answer was several paragraphs and didn't come any closer to clearing up the mystery!

Losing Battles And Winning Wars

If you happened to hear about the report that the Inspector General at the Department of Justice released about the politicization inside the Justice hiring process, you probably are as appalled as some of the leading newspapers. At the Washington Post, their story quotes Senate Judiciary Chair Patrick Leahy who referred to the report as "troubling," versus the story at the New York Times which gets a quote from House Judiciary Chair John Conyers, who said the partisans at Justice were "putting politics where it doesn't belong." In fact, choose your news source, and nearly all the stories are the same, all fitting the same narrative of a problem that is germane only to the Bush administration and one that fits into a pattern of unilateral abuse of the laws and the Constitution.

The thing is that what the IG Report found as a problem is nothing more than an extension of bureaucratic politicization that stretches all the way back to the Nixon administration, who wanted to neutralize the "New Deal" controlled bureaucracy in order to get his policies moving forward. The Carter administration ushered through the Congress, and then signed the "Civil Service Reform Act of 1978" that allowed the president to set aside a number of appointments--at the top of key agencies--of individuals who not only answered to the president but also had incentives to make sure that the president's political objectives were realized.

It was the Reagan administration, however, that was by far the most overt--and most successful (at the time)--in moving the bureaucracy closer to the White House. For instance, before Reagan took office in 1981, his transition team established a litmus test for anyone applying to work in the administration. They wanted to make sure that every conceivable position where they had latitude over hiring was given to a true believer. The criteria for hiring? According to the two men in charge of hiring, Pendelton James and Lyn Nofziger, the candidate was asked:

1. Are you a Carter appointee? If so, you're rejected.
2. Are you a Democrat who didn't work for Ronald Reagan? If so, you're rejected.
3. Are you a Republican? Are you the best Republican for the job?
4. Are you a Ronald Reagan-George Bush supporter?
5. Did you work in the Reagan-Bush campaign? How early before the convention?
6. Are you the best qualified person for the job? But that's only number 6.

As Ed Meese, who would eventually be Reagan's attorney general in the second term (and the one who oversaw the push to make the signing statement a strategic weapon) remarked on this vetting process: "We sought to ensure that all political appointees in the agencies were vetted through the White House personnel process, and to have a series of orientation seminars for all high ranking officials on the various aspects of the Reagan program. We wanted our appointees to be the President's ambassadors to the agencies, not the other way around."

President Reagan would also issue two key executive orders that gave the Office of Information and Regulatory Affairs inside the Office of Management and Budget the power to make life miserable for any bureaucrat--political or career--who failed to live up to the Reagan vision. This enabled the "president and his agents to monitor and influence the substance of individual regulations." In essence, it established administrative clearance of any and all regulations. By the end of the Reagan administration, the entire bureaucratic apparatus was now highly sensitive to the political position of the president. It simply was not worth the effort to try to end run the White House. And despite the attempts of Congress to assert itself inside the bureaucracy, the truth of the matter was that each successive administration moved the bureaucracy much closer to the White House, leaving Congress with losing ground with each passing year.

The Clinton administration continued the efforts of its Republican predecessors. It enhanced the Reagan executive orders, it used a variety of unilateral devices (the signing statement, proclamation, executive orders, treaty obligations, etc.) and pretty much dominated the Republicans in Congress who were unable to combat how Clinton flew solo when he could not get the Congress to come along, leaving Clinton domestic policy adviser Paul Begala to conclude: "Stroke of the pen. Law of the land. Pretty cool."

Thus the Bush II administration came to power, and it simply extended the reach of the president even further than his predecessors. So after we are finished reading these various accounts, what should be the questions we ask? I think we should start first with a look at how we got here, because that will only help us understand why this happened and then to allow us to think about how we prevent it in the future. Because you can be sure of one thing. This OIG report is only a short term loss. This administration and the candidates running around the country are already thinking about how they will stretch their tentacles throughout the bureaucracy to compensate for the moments when Congress simply won't go along with the president's vision.

Power, Power, Power

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bush and Jackson and Lincoln...Oh My!

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

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

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

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

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

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

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

What Happens Next?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Addendum

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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