Material from June 06 Hearing on the Signing Statement

Back in June 2006, the Senate Judiciary Hearing held a one day hearing on the Bush administration's use of the presidential signing statement. The hearing was spurred in large part from Charlie Savage's April 30 Boston Globe article on the signing statement--the article that put the signing statement--at least for this generation--on the map.

The Senate Judiciary Committee has just released its report on that hearing, and for those who have followed this closely, there is nothing new in the official transcript of that days events. What is interesting is the responses from Michelle Boardman, an OLC attorney who testified that day, to written questions after the hearing ended. There some interesting things I have found in reading her responses. For instance, the members asked her about Bush's constant use of the term "unitary executive" in his signing statement, and whether that was an indication that he was using the signing statement to enhance executive power overall, which would be different from previous presidents. In her response, she notes that previous presidents also pointed to the unitary executive in their signing statement--in particular Reagan and Bush I. Reagan and Bush I did make mention of the unitary executive, but only a handful of occasions. By the second year of Bush's first term, every one of his constitutional signing statements carried the qualified "unitary executive" which was often left open-ended, suggesting that it was not just to "supervise the unitary executive branch," as Ms. Boardman implies in her written responses. This is also important because she suggests to the Senate Judiciary Committee without any challenge from them that the unitary executive only means that the president has the right to control the behavior of those who work from them--control their communications with each other and with anyone outside the executive branch. That is just one peg of the theory. It also believes that the "Vestings" clause gives to the president ALL executive power inside and outside the Constitution and via the "Oath" clause it commands the president to reject anything that contradicts HIS reading of the Constitution. Boardman's dimunitive interpretation mirrored that of Justice Alito when he was asked what the term meant to him during his confirmation hearings in January 2006 (shameless plug: I have a co-edited volume on the unitary executive due out later this year from Texas A&M University Press).

I am continuing to scan through the report, and if you are interested in the subject, I encourage you do the same!

Some Things Never Change

John Elwood, a refugee from the Bush OLC, has joined the Meta-Blog The Volokh Conspiracy as a blogger. Elwood was the second person the Bush White House sent to testify in defense of their use of the signing statement when he came to the House Judiciary Committee in January 2007 to testify before newly minted chair, John Conyers.

The Bush administration often used the argument that the criticism regarding their use of the signing statements was something drudged up by political opponents and not a fair criticism--the basis was a quantitative assessment of Bush signing statements--how could it be a problem if Bush had issued fewer signing statements than any president before, including his immediate predecessor, Bill Clinton? In fact, this criticism was also leveled at those who testified before either the House or Senate Judiciary Committee. While technically it is right, in substance it is wrong.

I bring all this up because Elwood has blogged about Obama's recent signing statement of the Ronald Reagan Centennial Commission Act, and one of his points of criticism stems from this quantitative misread.

Elwood, like me, has found it interesting that Obama referred to a predecessor's signing statement in defense of his own, and it seems as if he feels slighted that Obama reached to the Reagan administration to find a challenge to they hybrid commissions created by Congress. Elwood notes that in 2001, Bush challenged a Commission that was established to prepare for the 50th anniversary celebrations of Brown v Board of Education that took place three years later. It is clear that Obama reached to the Reagan administration because this was a challenge to a Commission established to honor Reagan. He could have easily found a challenge in Bush I and Clinton's presidency, but that would have not been rhetorically symmetrical nor have the impact that the one he chose.

Elwood also takes notice to Obama's statement that he notified Congress of his constitutional objection. He writes:

Confirming that such notice was given in the signing statement itself seems prudent as a matter of congressional relations, but it is more a matter of style than substance. Although there have certainly been exceptions, administrations of both parties (including the Bush Administration) have routinely advised Congress of their constitutional objections through informal contacts and formal bill comment letters. The Obama Administration has now taken an additional step to "paper the record" by noting that fact at the time of the signing statement.

A couple of things here. First, there seems to be a great deal of communication with the Congress when a challenge is made. As my colleague Bryan Marshall has found while serving as an APSA Congressional Fellow, as part of the long term negotiations between the president and the Congress to get a bill passed, when there is a sticking point, the administration and the Congress often comes to an agreement to allow the sticking point to proceed so long as Congress signs off on a formal challenge by the president. Thus the signing statement is a safety valve that allows both sides to save face when backing away from a veto challenge. Second, if we wanted to get really technical, we should applaud Obama for abiding by a law the Bush administration refused to acknowledge. In the 2002 DoJ appropriations bill, Senator Patrick Leahy added language requiring the administration formally inform the Congress whenever it used the signing statement to challenge the constitutionality of a provision of law (see Section 530D to the 21st Century Department of Justice Appropriations Authorization Act). Third, in Obama's formal memorandum on using the signing statement, issued March 9 just ahead of his first constitutional signing statement, he promised, in principle #1, that he would "...take appropriate and timely steps...to inform the Congress of its constitutional concerns about pending legislation."

The point where Elwood cannot shake old habits is here. Elwood writes:

For those of you keeping score at home, based on the listing of signing statements on coherentbabble.com (which includes both constitutional signing statements and uncontroversial rhetorical or laudatory signing statements), President Obama has issued more constitutional signing statements than President Bush had at this point in his presidency (by my count, four versus one).

A point of clarification here. All legislation is not created equally. If you look at the first signed pieces of legislation during 2001, much of it is ceremonial, such as dedicating buildings and roads or appointing individuals to ceremonial commissions. In fact, it is unusual for constitutional challenges to come during the first half of the year. Most do not start until August, when the Congress begins to fire appropriations bills at the president. Clearly Obama has been given more substantive legislation early on because of the state of domestic and foreign policy. These are not usual times. If Obama wished to get technical, he could counter that he followed the lead of his predecessor and waited until March to make his first challenge. Obama's first challenge came on March 11, 2009 and Bush II first challenge came on March 20, 2001. But that is technical and really meaningless in the long run. Just like making quantitative comparisons between presidents is meaningless in the long run.

What does matter, and what we all should watch or want to know going forward are the following things: First, will Obama and limit the number of challenges, or will he follow Bush's lead and challenge everything, no matter how insignificant? Second, will Obama stick to his promise of both grounding the challenges into some constitutional priniciple AND will be concise regarding what is being challenged? So far he has shown himself to be sensitive to the Bush administration strategy of being vague about the specific challenges. And third, will Obama revert to precedent and leave the challenges to the OLC? What got the Bush administration into trouble is that the process was distorted by the Office of the Vice President, and in particular David Addington, who was allowed to review any bill for constitutional infractions without the input, or knowledge, of the OLC.

If Elwood was serious about his criticisms, he would leave the Bush administration behind and help his readers understand what really is at issue with the use of the signing statement.

Did You See What I Saw?

(Did I say that the White House website is a muddled mess?)

Did you see the signing ceremony yesterday on the news? This is the one with Nancy Reagan and a bill signed commemorating Reagan's 100th birthday next February? There was a lot of attention dedicated to the signing--Nancy Reagan was brought up on stage with President Obama, and President Obama made these remarks before signing the bill into law:

Well, thank you all for coming to the White House today as we commemorate the life and work of a President in the presence of those who loved him, and knew him, and respected him deeply as both a leader and as a man.

And in particular, I want to thank our special guest here today, Nancy Reagan, our former First Lady, who redefined that role in her time at the White House -- and who has, in the many years since, taken on a new role, as an advocate on behalf of treatments that hold the promise of improving and saving lives. And I should just add, she has been extraordinarily gracious to both me and Michelle during our transition here and I'm thankful for that.

There are few who are not moved by the love that Ms. Reagan felt for her husband -- and fewer still who are not inspired by how this love led her to take up the twin causes of stem cell research and Alzheimer's research. In saying a long goodbye, Nancy Reagan became a voice on behalf of millions of families experiencing the depleting, aching reality of Alzheimer's disease.

This bill, which creates a commission to carry out all the celebrations this year in honor of President Reagan's 100th birthday next year. The only thing President Obama said about the commission was it was created by an "overwhelming bipartisan majority in the House of Representatives, and passed unanimously in the Senate..."

Today's news captured just those things, as well as a few controversies to string along. For instance, this story in "Politico" rehashes a number of minor squabbles between Obama and Nancy Reagan, starting with Obama's crack at the outset of his administration about Nancy Reagan's seances, a crack he quickly apologized for. Next is Nancy Reagan's charge in an "Vanity Fair" interview that she was not invited to the White House back in March when Obama lifted the Bush ban on stem cell research.

And if this isn't bad enough, Obama is getting criticized for taking a swipe at Jimmy Carter. In Obama's signing ceremony, he said this about Reagan:

President Reagan helped as much as any President to restore a sense of optimism in our country, a spirit that transcended politics -- that transcended even the most heated arguments of the day. It was this optimism that allowed leaders like the President and Speaker Tip O'Neill, who held sharply different philosophies, to sit down together at the end of difficult debates as friends, and to work with one another on complex and contentious issues like Social Security. It was this optimism that the American people sorely needed during a difficult period -- a period of economic and global challenges that tested us in unprecedented ways.

In these perilous times, President Reagan had the ability to communicate directly and movingly to the American people; to understand both the hardships they felt in their lives and the hopes that they had for their country. That was powerful, that was important, and we are better off for the extraordinary leadership that he showed.

Ken Rudin, NPR's "Political Junkie," titles his article in response: OBAMA TRASHES JIMMY CARTER! If this sounds familiar, it is not too different from a typical "NY Post" headline that might read: OBAMA TO CARTER: YOU TRAMP!

It seems that some--though no one connected with Jimmy Carter--sees this as a slam by Obama because he is comparing optimism and idealism with the drudgery of the Carter years--when in fact, this characterization is right on. Carter's people--if you have read what they have said about their time in office--admit to completely misunderstanding the power of rhetoric in favor of "plain speaking." Plain speaking, while possible in the 19th century, was not possible in the era of electronic mass media of the late 20th century, and certainly not in the 21st. The Carter folks understood too late that image control is a big responsibility of the Office of the Presidency, and the Reagan folks learned from it.

It seems clear to me Obama has a special place for Reagan--if you recall, his admiration of Reagan was a point of controversy during the 2008 Primary. Back on January 2008, Obama said this in an interview with a Nevada newspaper:

I think Ronald Reagan changed the trajectory of America in a way that, you know, Richard Nixon did not, and in a way that Bill Clinton did not. He put us on a fundamentally different path, because the country was ready for it. I think they felt like, you know, with all the excesses of the '60s and the '70s, you know, government had grown and grown, but there wasn't much sense of accountability in terms of how it was operating, and I think people just tapped into — he tapped into what people were already feeling, which is we want clarity, we want optimism, we want a return to that sense of dynamism, and, and, you know, entrepreneurship that had been missing.

Now, in spite of all this rhetoric and controversy, did you catch Obama's challenge to a provision of the bill? Did you hear of this either in his remarks or in the news coverage that followed? Probably not.

While Obama was making his public remarks about the bill, he was also issuing a private statement that would carry a constitutional challenge to a provision of the bill. And he would make his challenge to the Reagan Centennial Commission by borrowing a Reagan signing statement challenge to a similar commission. Obama writes:

The bill provides that the Commission will be composed of the Secretary of the Interior, four individuals whom I will appoint after considering the recommendations of the Board of Trustees of the Ronald Reagan Foundation, and six members of Congress appointed by the congressional leadership. I wholeheartedly welcome the participation of members of Congress in the activities of the Commission. In accord with President Reagan's Signing Statement made upon signing similar commemorative legislation in 1983, I understand, and my Administration has so advised the Congress, that the members of Congress "will be able to participate only in ceremonial or advisory functions of [such a] Commission, and not in matters involving the administration of the act" in light of the separation of powers and the Appointments and Ineligibility Clauses of the Constitution (Public Papers of the President, Ronald Reagan, Vol. II, 1983, page 1390).

In Section 4(a), it lists the appointment process to the Commission, and in Section 4(a)(2), it allows the Board of Trustees of the Ronald Reagan Foundation to appoint four members (out of a total of 11 members), while in Section 4(a)(3-6) it allows for various members of the congressional leadership, on both sides, to appoint a total of 6 of 11, with the Secretary of Interior getting the final appointment. Specifically, Obama is objecting to the six members that Congress gets to appoint, though he could also add the four that the Foundation Trustees get in there as well. What he is objecting to is the constitutional stipulation that only the president may appoint individuals who will exercise executive power. Thus Obama stipulates that since these members cannot possibly exercise executive power, their participation will largely advisory and ceremonial. By constitutional signing statement standards, this is fairly rudimentary. What is interesting is that Obama asserted the authority to challenge based on precedent--and a precedent established by Reagan himself.

Obama refers to the Reagan signing statement to legislation establishing a Commission to commemorate the Constitution's bicentennial, passed September 29, 1983. In that signing statement, Reagan wrote:

I welcome the participation of the Chief Justice, the President pro tempore of the Senate, and the Speaker of the House of Representatives in the activities of the Commission. However, because of the constitutional impediments contained in the doctrine of the separation of powers, I understand that they will be able to participate only in ceremonial or advisory functions of the Commission, and not in matters involving the administration of the act. Also, in view of the incompatibility clause of the Constitution, any Member of Congress appointed by me pursuant to section 4(a)(1) of this act may serve only in a cermonial or advisory capacity.

It would be interesting to know who came up with the ideal of finding a similar Reagan statement to back this up, since presidents rarely cite signing statements of their predecessors to justify, in part, why they are taking the action they take. Thus there had to be some discussion of this before it made its way into the Obama statement.

By my counting, this is Obama's fourth constitutional signing statement out of a total of 10 statements to date with dozens of challenges thus far. But despite that, it represents one original challenge rarely seen in the annals of the signing statement. And given its unusual wording, I am surprised it received so little coverage (like zippo coverage).

Another Frustrating Obama Signing Statement

President Obama has issued two signing statements today, one nothing more than a rhetorical statement and a second statement packed with a constitutional challenge. First, a bit of context.

The presidential signing statement can come in one of two forms--a public signing statement verbally issued during a formal signing ceremony--the one where the president is flanked by important people who are given a pen once the president has finished. The second form is a private signing statement that is in written form only. Furthermore, the signing statement can be classified either as a rhetorical signing statement, largely designed to garner press and public attention, or as a constitutional signing statement, where the president either challenges the constitutionality of a provision or provisions of the bill or interprets a provision or provisions that is/are vague. Often times, a constitutional signing statement will be accompanied with a public statement, as I will demonstrate below. Regardless of who the president is, this combination does not change: in the public statement, there is no mention of the constitutional defects or the imprecise language. It is clear when this tandem is in effect, the president is attempting to direct the attention of the press, public, and the Congress away from the challenge.

Now President Obama. Remember that candidate Obama never claimed he would eschew the use of the constitutional signing statement. That was John McCain. Despite this, conservatives (whether it be Fox News or Republicans in Congress) try to make the case that President Obama is reneging on a campaign promise. Rather, Obama, like Hillary Clinton, used vague terminology to prepare for the day when they would make their own challenges. Both claimed that they would use the signing statement in the way it was used pre-George W. Bush. No one ever got either Obama or Clinton to get more precise than that, leaving it to all of us to discern what this means. Since Obama won the presidency, he issued a declarative memo outlining his policy on the signing statement. Of merit, Obama made the following promises:

1) He would inform the Congress about his concerns regarding the constitutionality of a provision or provisions of a bill as it is making its way through the legislative process. This should bring down the number of challenges in a signing statement.
2) When he does make a challenge, he will rely upon "well-founded" constitutional principles with which to ground it.
3) To insure "transparency and accountability," he will identify specifically which provisions are troublesome and specifically what part of the Constitution is being violated.
4) He will make a constitutional correction only for legitimate problems.

These are all jabs taken at the Bush administration--President Bush got to the point where it was not clear what part of the bill was defective, what specific constitutional provision was violated, and many of the challenges were little more than a policy difference with the Congress.

So with this, I move to the discussion of Obama's most recent signing statements. While Obama has moved to underscore "transparency and accountability" in nearly everything he does, it is my opinion that he still has a long way to go. Case in point is the signing statement. The administration has used the White House webpage to play a sort of sleight of hand with the device, keeping the focus on the rhetorical signing statement while obscuring the constitutional signing statement.

For example, the White House website today (May 20) highlights the two bills President Obama signed--First with a picture showing applauding members of Congress surrounding Obama in an action photo, second in a blog posting that underscores and amplifies the President's remarks and then third is a transcript of his remarks.



Now the problems. If you were interested in the signing statement but were not versed in the subterfuge with which an administration will go to hide what they don't want seen, you may be wondering how I could have arrived at the conclusion that one is a constitutional signing statement. That is because if you click on the link under the heading "Signed Legislation," you will be taken to the White House blog posting of the signing ceremony. OK, fine. Within the blog posting is a link to the President's actual remarks, which you diligently click. After clicking, you arrive at President Obama's official remarks, and you notice that President Obama combined two bills into one statement. One bill, the "Helping Families Save Their Homes Act" and the second, the "Fraud Enforcement and Recovery Act of 2009," or FERA 09 for short. And reading through both of these statements, you can find nothing that would resemble a challenge, let alone anything that could be regarded as critical. In fact, the transcript includes the parts where their were applauses (Applause) and laughter (Laughter). For instance, when Obama delivered a real zinger, you get this:

And because of that plan, all of you shoud know that interest rates are down, refinancings are up, and Americans who participate can save up to $2,000 a year--in effect, a $2,000 pay cut per family--tax cut-- excuse me. They don't need pay cuts. (Laughter.) That would be a good bill. (Laughter.)

So you conclude that I must be some kind of partisan hack seeking to bring down the Obama administration.

If you go back to the White House webpage frontpage, and scroll down to the bottom, in the place where the text is smaller and crowded with a lot of information. There under the heading "THE BRIEFING ROOM," on the far left side, down five links is a link titled OFFICIAL STATEMENTS. If you click that, you will find the link under 5/20/2009 titled STATEMENT BY THE PRESIDENT ON S.386. Now of course you would have to know what S. 386 is to know that it applies to an actual signing statement. It does not say "Statement by the President on the signing of S.386," so you may falsely believe that it is a Statement of Administration Policy, or SAP, about a bill making its way through the Congress. In this case, however, S. 386 is the constitutional signing statement for FERA 09. This is the one contains the constitutional challenge.

The second paragraph of this signing statement reads:

Section 5(d) of the Act requires every department, agency, bureau, board, commission, office, independent establishment, or instrumentality of the United States to furnish to the Financial Crisis Inquiry Commission, a legislative entity, any information related to any Commission inquiry. As my Administration communicated to the Congress during the legislative process, the executive branch will construe this subsection of the bill not to abrogate any constitutional privilege.

Now if you switch back to his formal remarks, with respect to the the Financial Crisis Inquiry Commission, it reads:

And finally, it creates a bipartisan Financial Markets Commission to investigate the financial practices that brought us to this point, so that we make sure a crisis like this never happens again.

"Where's the beef?" as Walter Mondale once asked of President Reagan during the 1984 campaign.

Now, what is the Financial Crisis Inquiry Commission? According to the Congressional Research Service, this Commission is established to "examine the causes of the current U.S. financial and economic crisis, taking into account fraud and abuse in the financial sector and other specified factors. Requires the Commission to submit a report on its findings to the President and Congress on December 15, 2010. Requires the Commission chairperson to appear before specified congressional committees within 120 days after the submission of the report."

According to the "New York Times," the Commission was created "in the wake of public outrage over corporate executive bonuses and other compensation for employees at firms receiving federal bailouts." In essence, it is a body created in the same fabric as the 9/11 Commission. The 10 members consist of six Democrats and four Republicans.

In Obama's challenge, he notes that he communicated his "concerns" to the Congress as the bill was being packaged, yet the vehicle by which those concerns were voiced remain a mystery to me. In most cases, when the administration finds a defect as a bill is winding its way through the Congress, it issues a SAP. For instance, in this SAP by the Bush administration to HR 2989 back in 2003, at the bottom the administration outlines it's constitutional concerns to a provision that contains an unconstitutional legislative veto. Yet in the SAP to S. 386, no mention of the Commission. In fact, there is no mention of any problem in the SAP, just Obama's enthusiastic support.

So the question is two-fold: By what vehicle did he register his concern AND to whom did the concern go? Because it seems that one member of Congress did not get the Obama message. In this story in "The Hill," Representative Darrell Issa, a Republican from California, and characterized as "the main Republican supporter of the Commission," seems to be taken aback at the challenge:

“Why is a president who talked so much about transparency now threatening to back away from it? If critical information is withheld from the inquiry on the financial crisis, its conclusions won’t have the credibility of the 9/11 Commission report,” Issa said in a statement to The Hill.

As to the challenge itself, President Obama seems to have broken his promise to be specific. He claims that the provision is construed so as not to "abrogate any constitutional privilege." What? Does he mean executive privilege? Does he mean, more broadly, the privilege that protects Executive Branch communication? Or the appointment of executive branch officers? Or separation of powers? I am totally confused because he is not specific regarding the nature of his objection. Sure, give him total props for telling us what the infraction is, but a big thumbs down for being fuzzy on what constitutional principles have been violated.

And finally, on the question of transparency, I have to raise, once again, an objection to the way in which the webpage is designed to frustrate, rather than assist, attempts at tracking the use of the signing statement. Say what you will about the Bush administration and its use of the signing statement. One thing you cannot criticize them for was the simple manner by which you could track the issuance of a signing statement. This has not been the case with President Obama. The website is clunky and cluttered. That aside, it is also designed to keep too many eyes from monitoring its actions. How else can you explain the glitzy pictures and headline pointing us to the signing of a bill versus the tiny, and compressed statements, coupled with arcane wordings, that actually direct us to the more private, written signing statement? Certainly Obama is not the first to play this game, but when you promise openness and transparency only to provide more of the same, you are going to get a heap of criticism. Deservedly so.

That is all I am saying.

Is The Constitution Obsolete?

That is the title of a two day conference held at Baruch College and the City University of New York. While the titles of the various panels may not seem to strike at the heart of constitutional revisionism, the panelists (OK, save Larry Sabato, who probably paid someone to jump on board) are all first rate.

If you are in the area, the conference is free and open to the public.

Senator Show-em

"Roll Call" has a story from yesterday based on a press release from Senator Arlen Specter (R. PA), who is desperate for any attention because he is in a fight for his political life in his Senate race in 2010. The issue? A series of bills designed to "curb overreaching of [the] Executive Branch." This is captured in three pieces of legislation he has introduced that are designed to place "new controls on the use of presidential signing statements and electronic surveillance." The electronic surveillance is divided into two parts: one bill that fast tracks warrantless wiretapping cases to the Supreme Court and another that absolves telephone companies from suits that stem from the release of information to government.

The other? It appears that Specter is trying to revive the massive attention he received as Chair of the Senate Judiciary Committee in 2006 when he investigated the use of the signing statement by the Bush administration. His bill, S. 875, is designed to "regulate the judicial use of presidential signing statements in the interpretation of Acts of Congress," and is so far co-sponsored by two other senators, Charles Grassley (R. IA) and Jon Tester (D. MT).

Specter's bill is designed to "prohibit courts from relying on, or deferring to, presidential signing statements as a source of authority when determining the meaning of any Act of Congress." He challenges that the signing statement has "too often been used to undermine congressional intent," though no proof is provided of such a case.

This appears to be repeat of an earlier attempt by Specter to broadcast his challenge to the signing statement. Like those earlier attempts, they are all style and no substance.

There is no evidence to suggest that the courts are influenced by the presidential signing statement. The Government Accountability Office did an investigation of the signing statements issued by President Bush to appropriation bills in 2006, and also whether the signing statements had any influence over court interpretation of federal law, and found that, in a search of all cases dating back over 60 years, that there were "fewer than 140 cases that cited presidential signing statements," and of those that did, it was for trivial or fact-based reasons, and not central to the decision in the case.

Further, even if the legislation were to succeed, it seems to me to be an unconstitutional intrusion upon the prerogatives of the court. One branch cannot tell another branch how to interpret the law, and that is precisely what Specter's bill does.

So for Specter--good luck in garnering as much attention as possible. You're gonna need it.

Another Obama Constitutional Signing Statement

Obama issued his fourth signing statement today, as well as his second constitutional signing statement, bringing to date a total of 13 challenges.

This signing statement--the "Omnibus Public Land Management Act of 2009," (HR 146), contained one provision (section 8203) that required the Secretary of the Interior to appoint members of the "Erie Canalway National Heritage Corridor Commission" that are "based on recommendations from each member of the House of Representatives, the district of which encompasses the Corridor; and persons that are residents of, or employed within, the applicable congressional districts (Section 1(C)(i))."

President Obama writes that it is "an impermissible restriction on the appointment power to condition the Secretary's appointments on the recommendations of members of the House," thus he would "require the Secretary to consider such congressional recommendations, but not be bound by them in making appointments to the Commission." Or in other words, "we will take it (the recommendations) under advisement, but don't expect much more."

The appointment power is a core presidential prerogative, and one of the areas that are likely to draw a challenge in a signing statement regardless of the party who holds the presidency. And it is clear that the Obama administration is taking its "Oath" obligation very seriously.

What To Think of the Signing Statement?

So suggests the "National Journal," in an article today on the signing statement (sub. req.). The title reads: OBAMA FOLLOWS SUIT ON SIGNING STATEMENTS: THE PRESIDENT DRAWS FIRE FOR CONTINUING BUSH PRACTICE, BUT IT MAY NOT MEAN MUCH. There you have it.

Quoted in the article is Lou Fisher, Gene Healy of CATO, Eric Posner (a defender of Bush signing statements (.pdf)), Bruce Fein and Neil Kinkopf, OLC attorney for Bill Clinton and critic of Bush signing statements.

The thrust of the article is to figure out the meaning behind Obama's signing statement--first, did he break a campaign pledge and second, is he behaving like President Bush?

The writer, Dan Friedman, repeats the false claim that Obama's March 11 signing of the Omnibus spending bill is his "first signing statement." As I discussed in this post, it was the first time Obama issued a "constitutional" signing statement.

After he provides the background to the controversy, including Obama's memorandum explaining how the signing statement would be used, he gets to the experts. First up is Posner, who says that "signing statements have almost zero practical effect." Pointing to the GAO studies in 2006 and 2007, they found that signing statements have no influence over judges and in an examination of Bush's signing statement to approprations bills, and that in at least nine cases, the law was not executed as intended--but the GAO could not conclude that it was the signing statement that was the cause.

The author also underscores the minimal effects of the signing statement by pointing to a Bush signing statement in January 2008 that challenged, for instance, the creation of a "wartime contracting commission" that had members appointed by someone other than the president. As he notes, despite the challenge in the signing statement, the White House "quietly appointed the commission's members" and complied with the law as written. But it wasn't that simple, and the signing statement actually was an important catalyst. As I wrote here, the White House only allowed the Commission to go forward after it had met with congressional leaders to work out the specifics on what the Commission would do. Thus the challenge served as the impetus to further negotiations, bringing the Congress closer to the White House's position on the bill.

Thus what we should take from this article? The thrust is the signing statement really doesn't have that much effect on the execution of the law, but what effect it does have--at least when Obama uses it--should in no way be taken as a sign that the Bush administration's interpretation of power has returned. If they do not mean anything, then we should no longer concern ourselves with studying them. And if they are meaningful, then it should not matter that Obama is different from Bush.

Either way, this particular article is a muddy mess.

The Unitary Executive's Future

One of the important legs of the unitary executive theory involves the president's influence over the regulatory process. Unitarians have long believed the president's role extends beyond simple oversight and is actually one where the president is involved in the decision making process (the promulgation of rules).

Since Reagan, each president has implicated itself into more areas of the bureaucracy than the preceding president. Reagan issued two key executive orders that made the Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs (OIRA) the "big kid on the block" when it comes to influence. OIRA became the eyes and ears of the White House, and no executive branch administrator issued rules without first consulting with it--even at times rejecting the influence of Congress, which is supposed to have shared responsibilities over the bureaucracy.

Clinton built upon the Reagan orders with an order of his own--Executive Order 12,866 continued to allow OIRA to influence the regulatory process and it extended the president's influence into the independent regulatory agencies--something Reagan and Bush had been rejected from doing. Clinton's order was issued in 1993, months after his inauguration, and with a Congress controlled by Democrats. Clinton was able to fall back on his order when the Republicans seized control of the Congress in 1995, using it as a fall back when his policies were rebuffed in the Congress (and to the chagrin of the Republicans). The Republicans attempted to blunt the influence of the president's order by adding the "Congressional Review Act of 1996" to a small business regulatory relief bill. The CRA is designed to allow the Congress to override a final regulation issued by an executive branch agency, but in reality is ineffective because it must be signed off by the president himself. In fact, the only override of a Clinton order that the Republicans pulled off happened with a midnight regulation issued when Clinton was leaving office, and was signed, enthusiastically, by President Bush.

As a demonstration of just how effective the Clinton order was, President Bush did not change it until 2007, when the Democrats regained control of the Congress following the 2006 midterms. On January 18, 2007, Bush signed Executive Order 13,422, titled "Further Amendment to Executive Order 12,866 on Regulatory Planning and Review." Technically this was an amendment to 12,866 and not a revocation. Most importantly, Bush's new order allowed the White House to place "minders" in the offices of the regulators themselves. These minders, called "Regulatory Policy Officers," have been in place since the Reagan orders, but outside of the agencies themselves. These individuals, called RPOs, were used as a go between the White House and the agencies, sending communication back and forth between the two. Now the RPOs would stand over the shoulders of the regulators, making what was abstract influence real influence.

Ten days after taking office, Obama revoked Bush's order with Executive Order 13,497, which restored the Clinton order as the guiding relationship between the White House and the executive branch. It also revoked Executive Order 13,258 (.pdf) which gave the vice president individual influence in the regulatory process, which was a sore point with open government groups who felt that the vice president--and in particular his chief of staff David Addington--were using the regulatory process as a fiefdom by which to make their own law (see this fine series of reporting by the "Washington Post").

Now here is where the unitary executive's future--at least this leg of it (since we know that the constitutional signing statement isn't going anywhere)--is in question. Obama's new order didn't just return the Clinton order and that was it--it temporarily puts the Clinton order into effect until a new regulatory order can be hammered out. And unlike the previous orders, Obama has asked for public comment on what this new order should look like.

The comments come from a variety of sources, although it appears that the deck is stacked in favor of those pushing for more transparency and for an end to the cost-benefit rationale built into the previous orders. There are a number of interesting comments and a few that are not worth a damn. If you are interested in this subject, I would encourage you to browse through the comments.

The question that remains centers on what role these comments will have in the final regulation. It could be that Obama invited public comments but will issue an order that does what he wants it to do anyway. Thus the public comments are a way to demonstrate his faithfulness to transparency without giving up the significant power the president has over the regulatory process. Or it could be a new era of transparency, where Obama synthesizes the best of the comments and builds them into an order that allows the public to monitor any influence over the development of final regulations--something that to date has remained in the shadows.

We sit and wait and wonder what future does the unitary executive have?

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.