Obama and the Signing Statement

There are a couple of things I want to mention regarding President Obama's recent signing statement. First of all, this signing statement is highlighted as Obama's "first" signing statement, when that is not true. It is only Obama's first signing statement to challenge the constitutionality of provisions within the bill. The downside of all the Bush signing statements is it drew attention away from the rhetorical signing statements--those where the president seeks to garner press attention for himself or important constituents. Legal scholars never seemed to give these much credit, but political scientists interested in the presidency have made the connections between presidential rhetoric and power.

The signing statement has always been defined (even before I began my work on them in 1996) as statements that a president makes upon the occasion of signing a bill into law. These statements may be public, private, or a tandem of public and private. If you look at the "Daily Digest of Presidential Documents," you will find two bills Obama signed in February meet the criteria of a public signing statement in ceremony form. The first one occurred when Obama signed the S-CHIP bill in early February. Here the President clearly wants to draw a distinction between himself and President Bush, who blocked a similar bill in the 110th Congress. He explains what the program is, what the new bill will do to benefit millions of children (including bringing in one child who will benefit), and then takes the opportunity to respond to critics as well as blessing the "bipartisan" nature of the bill.

At the bottom of the statement, the GPO has classified this as a bill signing (Categories: Bill Signings and Vetoes). Yet on the digest page, they list the signing under "Remarks." Some who study the signing statement pay only attention to the listing on the front page of the digest and look only for the category of bill signings. But it is undeniable that the S-CHIP signing is a public signing statement.

Next on the list is Obama's signing of the American Recovery and Reinvestment Act of 2009, also categorized under "Bill Signings and Vetoes." This is also a rhetorical signing statement, but not one signed under ceremonial purposes. Instead, must of the statement is amplified by the Office of the Press Secretary. Much of it reads like the signing of the S-CHIP and is designed to foster greater public attention of an administration in action.

But let's not lose sight of the public signing ceremony. It is a public statement the president makes upon the occasion of signing a bill into law, but for whatever reason, the White House wants to make sure the rhetorical importance of the signing is not lost. Some may disagree, but again, if you conduct a literature review of the signing statement prior to 2000, you will find a consistent definition where both the public and private statements are considered the same thing.

A second matter that relates to Obama's recent signing statement. First, you can now find the signing statement available on the White House website, which was not the case on Wednesday when it was signed. One of Obama's challenges dealt with communications with Congress. As I noted, this has been a consistent challenge from presidents who wish to funnel all communications through the White House before it goes to Congress. It seems that one other interpretation was made, and that the challenge was a way to weaken whistleblower protections.

Senator Charles Grassley (R. IA) sent a letter to Obama demanding to know what he meant by this challenge. Grassley claims that the statement is "alarming" and it goes back on his word from the campaign trail, which is a partisan shot. Obama never said he would not use the signing statement, only that he would not use it "like Bush." Only McCain said never never, never. But on the particular challenge, Grassley argued:

...you singled out sections 714(1)-(2) of H.R. 1105 which contains an appropriations rider that Congress has passed in various forms since 1997. This rider has been an important part of appropriations bills for a decade and it is a significant part of Congress' efforts to protect the rights of Federal Government employees to provide information to Congress. The rider states that no appropriation shall be available for the salary of any officer or employee of the Federal Government that "attempts or threatens to prohibit or prevent, any other officer of employee of the Federal Government from having any direct oral or written communication or contact with any Member, committee, or subcommittee of the Congress[.]"[4] This rider sends a powerful message to all agencies and Departments that any effort to block an employee from providing information to Congress will not be tolerated.

I am deeply concerned that the signing statement you issued will undermine this important whistleblower protection included in the Omnibus Appropriations Bill. Not only is your signing statement contrary to your campaign statements, it also goes beyond the traditional broad signing statements authored by previous Presidents. In specifically singling out this provision, you have gutted the legislative intent of this provision by stating that it does not "detract from [your] authority to direct the heads of executive departments to supervise, control, and correct employees' communications with Congress[.]" (emphasis added). This is a shocking statement that acknowledges that you would be willing to give an order preventing employee whistleblowers from making disclosures to Congress. I do not see how this statement can be reconciled with your campaign promise to protect whistleblowers. In fact, it is even more egregious than simply breaking a promise, because it actually restricts current and previously existing whistleblower protections.

Before you dismiss Grassley as a partisan hack, keep in mind that he took on the Bush administration back in 2002 when it attempted to weaken a whistleblower provision that was part of the Sarbanes-Oxley bill. Had it not been for the vigorous oversight by Grassley and Patrick Leahy (D.VT), Bush's interpretation may have stood (you can read about it in this 2005 paper I wrote).

While I am sure that Obama's challenge is not in the vein of the Bush administration, it does remain to be seen how he will respond to Grassley's challenge.

The Obama Signing Statement--More of the Same

As I promised in my last post regarding Obama's position on signing statements, there would be a constitutional signing statement in the immediate future. Two days later (today, 3/11), Obama issued his first constitutional signing statement. First, a couple of words:

• A constitutional signing statement is defined as any signing statement that contains one or more provisions that challenge the constitutionality of a section(s) of the law, or where the president needs to define or "interpret" a section(s) of the law.
• For all of his candidate Obama's talk of transparency, their website is anything but. The Bush administration placed all of their signing statements on the "News" section of the White House webpage, listed day to day. In fact, toward the end, they were pretty good about putting the signing statement on the White House webpage and not in the "Weekly Compilation of Presidential Documents," where you would normally find signing statements. The current signing statement, taken from the "Boston Globe," who was good enough to provide a .pdf copy, says it came from the Office of the Press Secretary, yet every link on the White House webpage to the press secretary or any official statements do not contain a link to the signing statement. To me, that is not transparency.

Now, the signing statement. The signing statement is the spending bill that is getting attacked tonight on the national news because it contained earmarks, going against Obama's promise to combat "wasteful" earmarks (Jake Tapper: "...contained 9,000 earmarks despite his promise not to sign anything with earmarks" Then, cut to John McCain. Then at the end, mention that 40% of the earmarks come from Republicans.).

Officially, it is H.R. 1105, the "Omnibus Appropriations Act, 2009," and it has $410 billion in spending. And Obama breaks precedent with previous signing statements by not just drawing attention to the constitutional challenges, but also placing them up and front in lieu of 1) a description of the bill and 2) all the good things that it does.

Obama writes:

As I announced this past Monday, it is a legitimate constitutional function, and one that promotes the value of transparency, to indicate when a bill that is presented for Presidential signature includes provisions that are subject to
well-founded constitutional objections. The Department of Justice has advised that a small number of provisions of the bill raise constitutional concerns.

He then bulletpoints the challenges:

1) Foreign Affairs--he singles out 3 provisions that "unduly interfere with my constitutional authority in the area of foreign affairs" because they purport to tell him how he should proceed with negotiations with international organizations and foreign governments.
His response: He does not take them to mean he is limited in how he negotiates with any foreign body.
Effect? Congress can tell him "til the cows come home" what he should or should not do vis a vis foreigners, but at the end of the day, he will do what he wants.

2) United Nations Peacekeeping Missions--this one was a favorite of the Republican Congress when Clinton was in office. To make sure that our forces are never under the direction of a foreign body, the Congress places boilerplate language instructing the president that he cannot send armed forces to international organizations if they are likely to receive orders from these organizations. In this bill, Section 7050 of Division H forbids the president from doing just this.
His Response: Since this bill seems to constrain his Commander in Chief power as well as interfere with international agreements, he is left with rectifying the provision so it does not conflict with those two things.
Effect: It remains to be seen how this gets carried out because it is not clear what Obama claims he will do. Rather than saying: "I won't execute this provision" or "I won't execute this provision until Congress corrects it," Obama says this: "I will apply this provision consistent with my constitutional authority and responsibilities." I will leave you to divine the meaning.

3) Interference with the control of information. This is an automatic challenge of each president since Reagan. Congress consistently attempts to force executive branch agencies to provide information about how it is carrying out the law, and each president since Reagan wants all interbranch communication to be funneled in and out of the White House. In fact, this is a central tenet of the unitary executive theory (and reason to believe it is alive and well). Obama finds two provisions defective: Sections 714(1) and 714(2) in Division D of the bill. They prohibit the use of "appropriations to pay the salary of any Federal officer or employee who interferes with or prohibits certain communications between Federal employees and Members of Congress." This is Congress's response to the unitary executive control over inferior executive officers. Congress has constitutional authority over appropriations, thus can say anyone receiving federal money cannot issue orders to bureaucrats telling them they cannot speak directly with Congress.
His Response: Despite what Congress says about its constitutional authority over appropriations, he is still the head of the executive branch, accountable for the actions of all inferior executive officers. Furthermore, some information is sensitive and needs to be approved before it is released. Hence:

"I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees' communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential."

In other words, to all executive branch employees, regardless of what the Congress demands, you are not to act until you have the approval of a representative from the White House (OMB).

4) Legislative Aggrandizements (committee approval, or "legislative vetoes"): In 1983, the Supreme Court found the legislative veto a violation of Bicameralism and the Presentments clause of the Constitution. What it does is condition the execution of the law upon post-enactment approval of a committee in Congress. Despite the Supreme Court decision, it has not stopped the Congress from using them AND from presidents objecting to them. This challenge seems to me to stand in clear violation of his promise in the memo to list the precise provisions under challenge. Instead, Obama starts: "Numerous provisions of the legislation purport to condition the authority of officers to spend or reallocate funds on the approval of congressional committees." Numerous provisions? In other words, do the work yourself--go through the bill and isolate any provision that seems to list a legislative veto. I thought we were done with this, and instead, were going to be given the specific location of the objection? Guess not. But wait, there is more. In addition to the "numerous provisions" listing, he also makes note of two extra provisions as problematic. He notes that "one other provision" allows congressional committees to establish guidelines for costs associated with security improvements in government buildings. And then, "Yet another provision" forces the Secretary of the Treasury to abide by the demands of a board that contains members of Congress or their staff. This is a different problem. This is a "hybrid" commission, meaning it mixes the executive and legislative functions (in this case).

His response: As to the "numerous provisions" complaint, Obama promises to try to inform Congress of the actions its going to take in advance, but in the end, the decision is his, not a committee of Congress. With respect to the provision that allows Congress to establish spending limit guidelines, Obama treats these as advisory. Sure, we will take it under consideration, but in the end, the decision is his. And then the "hybrid commission" problem, he will treat it as nonbinding. Let them recommend all they want, but it no one should take them seriously.


5) Recommendations violation--These also show up a lot in signing statements. Congress tries to tell executive branch agents what sorts of recommendations they need to make in future requests for money. Because the president may recommend legislation himself, this is seen as a violation of presidential prerogatives. Obama once again continues the practice of challenging such violations, and continues an irritating practice from his predecessors (and one that also violates his pledge of clarity). The problem with this challenge is similar to the legislative veto challenge from above. Instead, what he writes is that "Several provisions of the Act (including sections 211 and 224(b) of title II of Division I, and section 713 in Division A)" requires him or his agents to submit budget requests in specific forms to Congress. If you are going to the trouble of listing some of the problems, why not list them all? If you pledged to improve over your predecessor, then why not do just that? Instead it is left up to all of us to try to figure out what else is in violation. In the past when I have found language like this, quite often there are no other provisions than the ones listed. Thus you burn a lot of time chasing a ghost.
His response: Because the Constitution gives him the power to recommend, these provisions are "precatory" or merely advisory (precatory was a favorite of Clinton--most others preferred its cousin, hortatory).

And you may not have heard much about the signing statement on the nightly news, and before you jump to conclusions of liberal collusion, let me offer two alternatives. First, many covered the signing statement. But it was the public signing ceremony, which was dramatically different from the private written ceremony. Why the two? To confuse those who don't pay much attention to these things (like the press and Congress). It is another version of being distracted by one hand while the other hand robs you. And second, this constitutional signing statement did get a lot of coverage, but mostly in the printed press, like the Boston Globe. As of this moment, Google News shows over 3,200 articles on the bill signing, ranging from the traditional news to specialty publications to blogs. That is a lot of attention.

In conclusion, Obama did not disappoint. Like "Wild Bill" Hickock, in the HBO series "Deadwood" told a woman whose husband had been murdered by road agents, "Listen to the Thunder." The memo of two days ago being the thunder preceding the signing statement. What is disappointing however is the continuing practice of not being concise regarding the specific provisions under challenge, leaving in its place the general phrasing: "numerous provisions." We were told to expect better. I at least took him for his word.

The Mark of Cain and Meet the New Boss

There are a couple of items of interest today regarding presidential power and the signing statement. The first is an article in today's New York Times that deals with the plight of George W. Bush's legal team. It appears that some are having trouble finding work, and others may never be able to leave the country.

International legal experts use a branding label called the "Mark of Cain," which is a term used for those in power who violate the human rights of their citizens. If the international legal regime is tight, it means that these people will forever be hunted until they are brought to justice. Thus they often become prisoners in their own country, for fear of leaving and then getting snatched by countries who are obliged by international law to bring them to justice--think for instance of Pinochet. This is the prospect facing folks like former OLC head John Yoo:

For more than four years, the Justice Department ethics office has been investigating his work and that of a few of his colleagues. A convicted terrorist has filed a lawsuit blaming Mr. Yoo for abuses he says he endured. Law students have led protests and the Berkeley City Council even passed a resolution in December calling for Mr. Yoo's prosecution for war crimes.

Yoo, and others, argue that this is unacceptable--that he is being wrongly persecuted for doing his job--for giving his client the advice he sought, particularly during an extraordinary time like the 9/11 attacks. And if he can be persecuted for this, what does this say for future presidents seeking the candid, if not extraordinary, legal advice of their legal counsel?

While that may be true, what is really at issue here is whether Yoo, Addington, and others gave their advice under the canopy of the Constitution, federal and international law, or whether they took advantage of the circumstances to advance a conservative legal theory out of step with the rest of the country?

I fall on the latter. For example, when Lincoln took the powers he did, he was always mindful of the Constitution and the laws--and mindful about how he would be judged in the future. Thus when the controversy ended, Lincoln asked the Congress and the courts to judge what he had done. In the case of the Bush legal team, there was no concern for either, thus they are reaping the seeds they sowed.

In the second, the issue of the signing statement has reared its ugly head once again. When Obama was on the campaign trail, he was careful, unlike McCain, to allow himself wiggle room on the use of the signing statement. Where McCain claimed he would never, under any circumstances, use the signing statement, Obama simply said that he would not use the signing statement as President Bush had. That's a loophole the size of the Pacific Ocean. Well, that loophole didn't get any smaller today in a memorandum issued by Obama to all Executive Branch agencies.

Obama outlines the history of the signing statement, and how it had been used carefully to "ensure that concerns about the constitutionality of discrete statutory provisions do not require a veto of the entire bill." But recently, that has changed. The past practice of using the signing statement to settle "policy disagreements" abused the sober history of this device, thus the need to outline how it will be used under Obama. This of course is a generous view of the history of the signing statement--Bush was not the first president to use the signing statement to settle policy differences. He was just the first to use them to such an extent that it raised public attention. And Bush did deviate in one major way from his predecessors--he began using the signing statement without grounding it in some part of the Constitution and without giving the Congress a clear ideal to what was specifically under challenge. That is an important difference that does merit the Bush administration criticism--not that he was somehow the first to use it.

So what is Obama's plan for the device? He lists four principles to which he will adhere:

1. The executive branch will take appropriate and timely steps, whenever practicable, to inform the Congress of its constitutional concerns about pending legislation. Such communication should facilitate the efforts of the executive branch and the Congress to work together to address these concerns during the legislative process, thus minimizing the number of occasions on which I am presented with an enrolled bill that may require a signing statement.
2. Because legislation enacted by the Congress comes with a presumption of constitutionality, I will strive to avoid the conclusion that any part of an enrolled bill is unconstitutional. In exercising my responsibility to determine whether a provision of an enrolled bill is unconstitutional, I will act with caution and restraint, based only on interpretations of the Constitution that are well-founded.
3. To promote transparency and accountability, I will ensure that signing statements identify my constitutional concerns about a statutory provision with sufficient specificity to make clear the nature and basis of the constitutional objection.
4. I will announce in signing statements that I will construe a statutory provision in a manner that avoids a constitutional problem only if that construction is a legitimate one.

I will take these point by point. In point 1, the principle he is claiming is not a new one. Recent presidents have maintained extensive communications with the Congress in an effort to shape the final bill the president receives--these communications can be found in things like SAPs, or Statements of Administration Policy, maintained at the OMB website (whitehouse.gov/omb). As my colleague Bryan Marshall and I have found, recent presidents use the signing statement in conjunction with SAPs to squeeze all they can from legislation, giving them final say over legislation. In point 2, legislation coming for the president's signature is presumed to be constitutional. But if you read on, that may be swell, but if the president determines part is unconstitutional, then he won't enforce it. So throw Congress a bone. We won't just assume you all don't know what you are doing down there. We will at least assume you know what the Constitution is all about, but that doesn't mean we will believe that once we actually read what you send. Seems insulting to me. Points 3 & 4 are a direct slam against the Bush administration. In point 3, if they do challenge a provision, they will "make clear the nature and basis of the constitutional objection." By 2005, the Bush administration had begun to make challenges without any constitutional grounding. And to follow that up, point 4 claims that he will only challenge if he can make a legitimate argument.

What follows is also interesting. In the memo, he informs all agencies that they are not to follow previous signing statements without first clearing it with the Attorney General--not their own counsels--but the AG. This actually brings up an interesting, and understudied, part of the signing statement, and one I briefly explored in my dissertation. A signing statement has a shelf life longer than the administration that issued it AND a president can reinterpret legislation signed by previous presidents--in essence, issue a signing statement post-facto. President H.W. Bush did this early in his administration with the policy of federal money and abortion--an action that led to the Supreme Court case Rust v Sullivan.

Either way, what is of big concern for those interested in the signing statement is that it is alive and well. What President Obama is doing is clearing the way for his use of the signing statement. Much the same as Clinton did in 1993, Obama is signaling that he will make use of the signing statement, with all due respect to the Congress, and not use like Bush. But use it he will!

The Solicitor General and the Unitary Executive

The Senate Judiciary Committee heard testimony today from the two nominees to be Solicitor General and deputy SG in the Department of Justice. The SG is often regarded as the 10th Justice of the Supreme Court because of the ability to get the Supreme Court to take on a case when asked. The SG is the person who argues, on behalf of the United States, in the Supreme Court, and the person who supervises the prosecutors in the DoJ. If the Attorney General is the chief law enforcement officer of the US, then the SG is the chief prosecutor. In the last 25 years, this position also has been an important point person for carrying the president's political agenda in the federal courts and is often called the president's "spear carrier."

President Obama selected Elena Kagan, the current dean of Harvard Law, to be his SG. Kagan is a woman of incredible talent and intellect, and I have been very appreciative to her for taking the time to speak with me when I was working on my dissertation.

Kagan had previously served as a domestic policy advisor to President Clinton, and it was that experience that enabled her to witness presidential power up close and personal. And as a result of this experience, Kagan both documented and became sympathetic to the unitary executive theory and its practice during the Clinton administration. Her experience was reflected in a massive article that appeared in the Harvard Law Review in 2001 titled "Presidential Administration." Presidential administration is what she called the unitary executive theory, and the article has been an important link tying unitarian values across presidential administrations, including importantly a Democrat. Thus it is important to note that, despite the change in presidencies and all the rhetoric that implies, the DoJ remains solidly behind advancing presidential power according to the dictates of the unitary executive. An example of how little the DoJ has changed is captured in yesterday's Washington Post, which documents the Holder Justice Department's support for the State Secrets privilege.

For those of you interested in the support for the unitary executive in the Clinton administration, you may now have access to the 2001 article in HLR. The Senate Judiciary Committee has placed on its website all the documentation surrounding Kagan, which includes letters of support AND publications. You can find her article under the link, "Question 13.A.--Publications--Part 1. (.pdf required)"

Enjoy!

Pacifica Interview

Flagrant self-promotion alert!

I gave an interview a couple of days ago with Mitch Jeserich, Washington D.C. reporter for Pacifica Radio. He focused his "Letters from Washington" update (mp.3) to the subject of presidential power in the Obama administration, and we spoke on the nature of unilateral powers and the unitary executive. My point: Nothing has gone away just because we have changed horses.

The Skinny on the Pardon

The Federation of American Scientists Project on Government Secrecy sends out a secrecy newsletter from time to time that is chock full of great stuff. Among some of the better stuff is the public release of Congressional Research Service reports, which the Congress refuses to release to the taxpaying public.

Included in the Friday, January 16 newsletter was a recent CRS report on the pardon power, since it has received some attention recently due to a controversial pardon decision by the President a couple of weeks ago. As well as what potential pardons lay ahead as the President prepares to leave office on Tuesday (on that note, I encourage you, if you get the chance, to read Christopher Buckley's White House Mess. The opening is a classic--the president who has is leaving office decides he is not ready to leave come January 20).

But I digress. The recent pardon controversy involved President Bush withdrawing a pardon to someone who had just been given one. Days before Christmas, President Bush blanket pardoned 19 people, including one to Isaac R. Toussie, who was a real estate developer in New York City who plead guilty to mail fraud and using false documents in order to receive government insured mortgages. Toussie, who had just recently been released from prison, was technically not eligible for a pardon. He received one after a former Bush counselor by-passed the Department of Justice's Office of the Pardon Attorney and went directly to the White House to plead his case. A day after he had gotten his pardon, the White House revoked it after word got out that his father had just donated nearly $30,000 to the Republican National Committee for use in the 08 election cycle. The question on everyone's mind was whether a president could revoke a pardon, and if so, had it every been done before?

In walks the CRS. In a nine page report titled "An Overview of the Presidential Pardoning Power," Vanessa Burrows explains that on March 3, 1869--technically the last day of President Andrew Johnson's beleagured presidency--Johnson issued a pardon which was revoked three days later by incoming President Ulysses S. Grant. A district court in New York addressed the lawsuit by the person whose pardon had been revoked, and concluded that the pardon could be withdrawn because it had "not yet been delivered to the grantee, a person on his behalf, or to the official with exclusive custody and control over him." In the current case, the names of the individuals had been announced, but there had been no official contact between the administration and those receiving a pardon. All President Bush had done was to tell the Pardon Attorney to hold off on giving the pardon until more information could be obtained. It raises the specter that the pardon could still end up going through.

Magnum Opus

Representative John Conyers (D. MI), chair of the House Judiciary Committee, has just issued a monster report, pulling together all of the Judiciary Committee's hearings on abuses in the Bush administration. Titled "Reining in the Imperial Presidency: Lessons and Recommendations Relating to the presidency of George W. Bush," it looks at various actions undertaken by the administration--from signing statements to National Security Letters--that it regards as abusive and urges the Obama administration to take note.

But be warned. It is not for the meek of heart. Coming in at just 500 pages, it has it all. I could complain that it refers to only research that has built on my research, but I won't. I did at least get a shout out as a "signing statement expert" (psst: it's on pg. 187).

More of The Last 100 Days

In a 2005 issue of Presidential Studies Quarterly, political scientists William Howell and Ken Mayer focused our attention to the power exercised by "lame duck" presidents. The conventional wisdom said that a lame duck president is one who has lost his capacity to govern and to be effective. What Mayer and Howell asked, in a very insightful essay, was if you looked at the record of our most previous lame duck president--Bill Clinton--how could conventional wisdom be true? Clinton had relied on a number of unilateral devices in order to make policy even if the system believed him to be neutered. Howell and Mayer warned us that we should not count the "lame duck" out.

And if you have been paying attention to President George W. Bush's final days in office, you can see what the two scholars mean.

President Bush has been busy helping important constituencies and building a positive image for future historians to judge his presidency on.

For instance, Bush has continued the practice (although he publicly stated he wouldn't) of issuing "Midnight Regulations"--regulations issued in the final days of the presidency that sometime tie the hands of the incoming administration. When Clinton left office, he lowered the regulations surrounding the permissible levels of arsenic in our drinking water, thus sticking a thumb in the eye of the incoming Bush administration. When the Bush administration placed the regulation on hold (to "study" its effectiveness) and hinted that it would restore the pre-regulation levels, it was pilloried by the press and environmental groups for wanting to poison the water of our women and children! Eventually it had to back away from this plan and let the Clinton order stand.

Bush has allowed regulations to go forward that narrowly interpreted the Clean Air Act by allowing industry not listed in the original act (now decades old) to pollute without having to install costly equipment to clean up its emissions, it has also placed a hold on a regulation that would ban certain antibiotics in the food that our cattle are fed for fear that it lessens the efficacy of the antibiotic in humans, and it has intervened in a spat between the Fish and Wildlife Services and conservationists over the protection of the Northern Rocky Mountain gray wolf, which has been a protected species, to the chagrin of ranchers. The Bush administration has pushed the agency to delist it from protection even though a district court ruling ordered that it should remain protected. And in one dandy of a move, the Department of Homeland Security issued an interim final rule that prohibits the use of expired forms of identification as acceptable ID for foreigners applying for a job to work in the US. While the rule itself may sound sensible, it is the process that is at question and one that may establish a dangerous precedent. In formulating and issuing the rule, the DHS did not hold a public review and comment period as required by law. Instead, DHS relied on the public review and comments for a similar rule that did not go forward and was proposed--get this--in 1998. Ten years ago. As reported in ProPublica, "The public had an opportunity to comment back then--and the department says those comments were considered when writing this rule." Never mind that the DHS itself didn't exist back then.

If you wish to keep tabs on the Midnight Regs, ProPublica has a nifty chart tracking each regulation.

On the other side of unilateral policy making, the president has the ability to set aside huge swaths of land as protected national monuments. The means to do this comes by way of a law over one hundred years old.

In 1906, the Congress passed--and Teddy Roosevelt signed--the Antiquities Act--which allows the president to establish national monuments by proclamation. And as Howell and Mayer argue, once established, they "could not be 'diestablished' by a subsequent proclamation." The only way his action could be overturned was by assembling "the necessary majorities and supermajorities required to enact a law--a difficult feat indeed, given the multiple veto points and collective action problems that plague the legislative process."

Bill Clinton, on his way out the door, set aside millions of acres of land out in the western United States--prime development land--as protected federal property. Clinton also set aside protected territory under water--millions of acres--off the coast of Hawaii, which brings us to the Bush administration.

In an action that has to have come about because of concern over legacy, President Bush has extended protections to 355,000 square miles of islands, reefs, and atolls throughout the Pacific Ocean. As you might have expected, this has shocked environmentalists, who have done battle with the Bush administration all the way back to the polluter-friendly "Clear Skies Initiative" and beyond. You know something is wrong with the picture when President Bush is praised by the Environmental Defense Fund, which said of Bush's action: "The president has given the Earth a Texas-size gift." That's nice.

So don't count the president out. Just like his predecessor, he may stay busy right up to 11:59 a.m. January 20--exercising every bit of power as he did 12:01 p.m, January 20, 2001.

Eyeing Obama

With three weeks left in Bush's term, there is a great deal of discussion regarding the nature of executive power--how it was wielded in Bush's term and how it may be wielded in Obama's administration. One article, appearing in the Los Angeles Daily Journal (sub. req.) discusses how President Obama will exercise presidential power--or more to the point--have we seen an end to the unitary executive? The reporter, Robert LaFolla, interviewed a number of scholars (including me) and pols for their take on the Obama administration My point was the unitary executive will survive into the next administration because it has been institutionalized as a result of more than 20 years worth of nurturing by Republican and Democratic presidents alike. Thus Obama will eventually turn to this "residium of power" when things start going bad for him--drop in public opinion, loss of control of Congress, hostile media coverage, etc. It seems to me to be a waste of time to discuss the unitary executive exclusively through the prism of the Bush administration. Granted, the Bush administration effected the theory in a number of ways--and clearly Obama may find it cost prohibitive to utilize--in the immediate sense--some of the more high profile tools to the theory (i.e. the signing statement), but in the end, Obama will behave like his predecessors. In fact, he should use the signing statement right off the bat to a piece of legislation that is not important. The signing statement should be purely rhetorical--get it over with. Once the furor dies down, then use the signing statement as it was designed--to control the legislation the president signs into law.

LaFolla's article also quotes other luminaries for their thoughts about presidential power in light of Bush--one of whom is Representative Jerold Nadler, a Democrat from New York, whose mindset reflects why most don't have a grasp of executive power. Nadler says, in only the way Nadler can say it:

"One of the things you're going to hear is, 'You don't have to worry now, Obama wouldn't [abuse power]. But that still leaves a loaded gun for the next jerk that's elected - and this country will elect another jerk. We have to get rid of these precedents before it happens again."

This is precisely the Republican mindset circa December 2000--that Clinton had openly abused the Constitution and "our guy" will never do that. The congressional position should be on heightened alert regardless who is in the White House.

Which brings me to the Huffington Post, and this posting by Peter Shane, a legal scholar and a member of the Carter Justice Department. Shane offers his recommendations on how Obama can stuff the executive "genie" back into the bottle, or in this case, back inside Article II. Shane, which should be no surprise coming from the Huffington Post, sees abuse of office only in terms of the Bush administration, which "embraced a double-barreled theory of presidential power"-where one barrel is "an assertion of unilateral presidential power in military and foreign affairs that is unprecedented in the breadth of its ambition to fend off congressional regulation and judicial oversight" and the other barrell? Why you guessed it--the "so-called 'unitary presidency' under which the President is entitled to exercise personally any or all policy discretion vested by Congress in any officer of the executive branch." It has almost become cliche to speak of the unitary executive in terms of the "so-called" unitary executive. And Shane's description of the theory really misses the target as to what the theory postulates--but that I will save for another time.

Shane targets specifically Bush's abuse of the signing statement, referring to his and UGA Law professor Neil Kinkopf's dataset on Bush signing statements. So what can be done to make sure this sort of abuse can't happen again? Shane urges Obama to issue an executive order, which to me seems like grounds for impeachment. But nonetheless, his proposed executive order has four sections that you can read for yourself. Here is what I find problematic. His first section reads as follows:

Except in the rarest of cases, the executive branch is constitutionally obligated to enforce the laws of the United States as enacted by Congress.

If you know anything about politics, you know a great deal of it is a result of mastering the art of definitions. Who gets to define "the rarest of cases?" What does that term mean? If the Congress were to accept this order, they would have done themselves a great disservice by allowing the president to neglect enforcement of the law because he determined it fell under a rare necessity.

Shane argues that this order would "demonstrate presidential vigor" (or unilateral disarmament) and would nail down three things:

[R]epudiating any claims for the legal force of signing statements, pledging allegiance to the executive branch's obligation to enforce the law, and promising transparency on those rare occasions when the president's obligations to the Constitution mean that a statute cannot be enforced consistent with our supreme national law.

First, this assumes that signing statements are inherently bad. I have argued elsewhere that they serve an important role in communicating to the executive branch agencies what the president believes the law means. And because the Congress is notorious for writing legislation that is incredibly vague, it leaves to the president the job of administering the law. This means putting meaning to word. If Shane and other critics of the signing statement find them so repugnant, then place the onus on the Congress to be clearer in the legislation it sends to the president. Also, the Congress is notorious for passing legislation that gives itself executive powers--from telling the president what he should recommend to the creation of hybrid executive agencies. Would this sort of thing constitute the "rare" instance where a signing statement would be appropriate? If so, then it is hard to criticize the thousands of challenges the Bush admininstration has made. The last recommendation I am not sure how to read? The president should be more transparent when he has to refuse enforcement of the law. Transparent how? Already the signing statement appears in a number of publicly available sites. Why not instead ask Congress why it cannot do a better job in monitoring the effects of the signing statement? There are already laws on the books that require the president to communicate to the Congress those instances when the laws are not being defended or enforced. The former has been on the books since 1978. And yet the Congress is clueless in he use of the signing statement? Why? Because the Congress is incapable of seeing past the nose on its collective face. How do we know? Well, the use of the signing statement first became controversial in 1986, when Reagan issued a number of challenges to the "Immigration Reform and Control Act of 1986." Among the outraged were Congressman Barney Frank and Senator Ted Kennedy, as well as Senator Patrick Leahy. And yet in 2006 they outraged anew in 2006--20 years after the fact--when President Bush was caught issuing his challenges.

I am all in favor of placing checks on the kinds of constitutional abuses in the Bush administration--but many were caused because they were encouraged by the Congress. Congress is the first instittution of government, and the one most capable to reign in an "imperial presidency." It is time that we start there when urging a reform to executive power.

Pardon Me, But WTF?

It has been an exciting time for a scholar interested in the study of presidential power and the use of unusual actions, thus I say with a bit of sadness that I will miss George W. Bush when he leaves office in three weeks. I owe him a lot for making everyone with an Internet connection an expert on the presidential signing statement. And now, as he tip toes toward retirement, he dazzles us once again with an extraordinary action that has everyone up in arms.

Just as background for those not entirely clued in yet, President Bush issued a pardon to 19 individuals who committed a variety of federal offenses. This is typical for a president about to leave office. And the watch has been on as the Bush presidency winds down given the number of high profile folks (Scooter Libby) who have filed for a pardon.

A couple of important points first before I describe the fiasco that happened in as little as 24 hours. The president's power to pardon is absolute. It can be given by the president to anyone who crosses federal law, or may at some point in the future be in trouble with the law (Ford's pardon of Nixon, for instance). There is a process in place inside the Department of Justice's Office of the Pardon Attorney to streamline the thousands of requests for pardon, clemency, etc. that the president receives during his time in office. The process is also in place to give the whole transaction an air of propriety, to make sure that the president is not handing out pardons to the highest bidder, for example. But in the end, it is the president's decision to make.

The second important, and interrelated point, is this administration's desire to enhance and increase the powers of the presidency. If you have listened to Cheney's farewell tours recently, you have heard a great deal about ceding stronger powers to future presidents than those powers in existence during Bush's time in office. This meant keeping Congress out of Article II and apologizing to no one for actions--even extraordinary ones--taken by President Bush or Vice President Cheney.

Now the fiasco. On December 24, President Bush had staff (Press Secretary Dana Perino, to be exact) break the news that one of the pardons was coming back. Here is what Ms. Perino had to say about the grant given to "Mr. Isaac R. Toussie":

Based on information that has subsequently come to light, the President has directed the Pardon Attorney not to execute and deliver a Grant of Clemency to Mr. Toussie. The Pardon Attorney has not provided a recommendation on Mr. Toussie's case because it was filed less than five years from completion of his sentence. The President believes that the Pardon Attorney should have an opportunity to review this case before a decision on clemency is made.

Mr. Toussie was a one time a high dollar real-estate developer in New York who spent five months in 2003 in a federal jail for "using false documents to get federally insured mortgages" in 2001 and for fradulently "selling land to Suffolk County at twice the appraised value" in 2002.

What happened in the matter of just a couple of hours between the 23rd and 24th? Was it the red flag of granting a pardon to someone who jumped ahead of the line--ahead of individuals seeking pardons for offenses committed decades ago? No, not that. What came to light was information that Mr. Toussie's father, Robert Toussie, and his wife, Laura, had given a sizeable amount of money to Republican candidates and the Republican Party in the 2008 election cycle. This generated a great deal of heat (Bush may very well green light the pardon in the end, but if so, he should have taken a note from Clinton and granted the pardon as he was heading to the inaugural ceremonies), which caused the administration to look positively foolish. The White House pointed fingers at the Department of Justice while the Department of Justice pointed fingers at the White House. News reporters scrambled to find anyone who knew anything about pardons to get at an explanation of the process, but more importantly to provide answers to the all important question: Can a president do that? Can he publicly announce a pardon and then turn around and go back on his word? This gave 15 minutes of fame to obscure political scientists and legal scholars who have dedicated their lives to the Presidential Pardon (to you reporters who are reading, my money is on Dr. Mark Morris, whose very fine dissertation is pubicly available and is chock full of all sorts of goodies surrounding the Pardon).

While everyone is focusing on the trees, let me step back and talk a bit about the forest in this story. First, while it may have been helpful to have been a contributor to Republicans, the dollar amount at stake here is not really eyebrow raising. It isn't what we might think of when someone uses wealth to gain a foot in the door. So if money wasn't necessarily a primary factor in moving Toussie's application up the list, then what was it? I would shine the light on Toussie's attorney during this process. Mr. Toussie hired Brad Berenson, an attorney and partner at the prestigious DC law firm Sidley Austin LLP. For those who don't know Mr. Berenson, prior to his gig at Sidley Austin, he was an attorney in the White House Counselor's Office during President Bush's first term. Thus this particular decision was made inside the White House and outside the normal process in the DoJ. More than circumstantial evidence if you ask me.

The second "big picture" item of interest is how this particular action contradicts the Bushies stated goal of leaving the powers of the presidency in pristine shape. Recall that the power is absolute and a fairly awesome power in its own right. What has happened to this absolute power when the precedent gets set that a president will be forced to rescind because the public heat from the action has gotten too hot? What possible penalty does Bush face by riding the storm out? He can't be re-elected? Are we to believe that he is so caught up in his legacy that he may threaten presidential prerogatives because his actions may cause presidential historians to stroke their chins? If that is the case, I think there is sufficient evidence to invoke the 25th Amendment!

President Bush is similar to the Energizer Bunny--He just keeps giving and giving and giving....

Eyes Wide Shut, Cheney-Style

Both President Bush and his faithful ward Dick Cheney have been on the media circuit in a series of "Farewell" interviews before they leave office in less than a month. While Bush's interviews have been mostly unrevealing and designed more to help frame the historical view of his presidency, Cheney's interviews continue to be illuminating for their "no holds barred" accounting of presidential power. The interview on the 19th with Fox News (and yes, characterizing it as an "interview" is probably being kind) is no exception (to read the transcript of Bush and Cheney's recent interviews, simply peruse the White House news page).

If you want full specification of the unitary theory (with a good bit of Nixon to boot), then look no further than this interview. Cheney is asked whether there are limits to the president's actions during a war, and Cheney frames his answer in terms of the president's "oath" powers:

"...when you take the oath of office on January 20th...as we did, you take the oath to support and defend and protect the Constitution of the United States against all enemies, foreign and domestic." In sum, when the president does it, it is legal. And who gets to decide whether it is legal or not? The president gets to decide it. Cheney declares: "...I think that what we've done has been totally consistent with what the Constitution provides for." How can he be sure? "What we did in this administration is to exert that [authority]...in a matter that I believe, and the lawyers that we looked to for advice believed, was fully consistent with the Constitution and with the laws of the land."

Which lawyers? Yoo and Addington? Yes. Goldsmith and Comey? Not so much.

To amplify the view that Congress has little control over the president's Commander in Chief powers--including the president's "War" power--Cheney brings up the extreme:

The President of the United States now for 50 years is followed at all times, 24 hours a day, by a military aide carrying a football that contains the nuclear codes that he would use and be authorized to use in the event of a nuclear attack on the United States. He could launch the kind of devastating attack the world has never seen. He doesn't have to check with anybody, he doesn't have to call the Congress, he doesn't have to check with the courts. He has that authority because of the nature of the world we live in. It's unfortunate, but I think we're perfectly appropriate to take the steps we have.

So because we decided decades ago that in the event--and an unlikely one at that--of a nuclear holocaust that the president would need unilateral discretion of a nuclear response, that means the Congress also agreed this meant the unilateral use of armed forces for any conflict the president--and the president alone--determined necessary? Cheney does recognize that his statement probably did not include the view of the Congress because he also brought up the War Powers Act, and only then to dismiss it. Cheney acknowledged that the War Powers Act was still in force, but then this:

No President has ever signed off on the proposition that the War Powers Act is constitutional. I would argue that it is, in fact, a violation of the Constitution; that it's an infringement on the President's authority as the Commander-in-Chief. It's never been resolved, but I think it's a very good example of a way in which Congress has tried to limit the President's authority and, frankly, can't.

The second half of the interview is just bad journalism--and what you would expect from Fox News interviewing either Bush or Cheney. Soft ball questions designed to enhance the administration's brilliance and demean its critics without any qualifications from the reporter. In particular the exchange about the right to hold those captured during the Global War on Terror indefinitely and without access to the regular courts. Little was said about Cheney's earlier claims that these people represented the "Worst of the Worst" and thus would prove a danger to national security if they had their day in court, which contradicted Cheney's claims in the interview that "hundreds" were released as a result of the review of their cases done administratively--something that was also forced on the Bush administration by the Courts.

I think sufficient evidence exists from the interview to suggest that Cheney is completely out of touch with the realities of the last couple of years. Chris Wallace, the interviewer, refers to a quote by Bruce Fein (which a number of other folks, including myself, have made) that argues that the administration has actually done a disservice to the power it sends forward to the new president by their actions, some of which have been knocked down by the Congress or the Supreme Court. This is in direct contradiction to their claims in 2001 to restore the power of the presidency that was so damaged following the resignation of Watergate. Cheney's reply is to deny that the several Supreme Court opinions dealing with the War on Terror, the loss of support in Congress following 2006, and the dreadful public opinion polls, not to mention heightend media and public attention to such obscure things like signing statements, means anything at all.

Eyes wide shut if ever there was such a case.

I Knew It

For those who are social scientists who rely on government documents, you know how much credibility you have that the document speaks for itself--that the document has not been subject to revision once it has been published by the GPO. Go do your local university and pull out a government document from the government holdings, and you will find something that looks today exactly the way in looked when it was printed. And that has been the case up to the age of the Internet.

I worried some time ago, when the Bush administration had been caught editing a press briefing by Ari Fleischer (where he warned that those critical of the US need to "watch it") that the White House website was vulnerable in a way that previous White House documents weren't--that is, anyone inside the administration could "tweak" the official record to make themselves or their boss look better than they originally did. I was confirmed of this when I went looking for the transcript of a press briefing in 2002 regarding the administration's unusual definition of "bipartisan support" as it related to the Homeland Security debate--I had used the transcript in a class after it had been issued, and within a year I went back and it was gone. All I had now was a secondary account of the press briefing and not the transcript itself. I worried then about what was being omitted daily given how little attention was paid to the sanctity of the government document. Fortunately, someone has been paying attention, and I only hope that it gets wider attention than it has.

Scott Althaus, a political communications professor and Lalev Leetaru, both at the University of Illinois, Urbana-Champaign have conducted a study for the Cline Center for Democracy, also at UIUC, titled "Airbrushing History, American Style" that scratches the surface of this serious problem. They found, for example, that five White House press releases in 2003 relating to the listing of members of the "Coalition of the Willing" were presently not all available at the White House website, having been removed between 2004 and 2006. The press releases that were still available had been altered from their original form. Their conclusion:

These findings suggest a pattern of revision and removal from the public record that spans several years, from 2003 through at least 2005. Instead of issuing a series of revised lists with new dates, or maintaining an updated master list while preserving copies of the old ones, the White House removed original documents, altered them, and replaced them with backdated modifications that only appear to be originals.

It is clear that the pattern they found suggests that the alterations and scrubbing was deliberate.

It is important that what is put up on government servers stays pristine because this manipulation is tempting to whoever is in power, Republican or Democrat. Given how easy wikipedia and blog posting can be changed or altered, I fear a mindset exists that what appears on the web should not be taken as authoritative. What our elected officials say is important to us and future generations of researchers trying to cobble together the "public record." My hope is that this study opens the door to a larger investigation as to the seriousness of this problem.

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.