Midnight Regulations

Susan Dudley, faculty in the Regulatory Studies Program at the Mercatus Center of George Mason University, and a former recess head of the Office of Information and Regulatory Affairs (OIRA) inside the OMB during the final two years of George W. Bush, has an interesting article in the current issue of Engage, published by the Federalist Society, a conservative legal organization founded in the 1980s by attorneys in the Reagan administration.

Titled "Regulatory Activity in the Bush Administration at the Stroke of Midnight," she looks at the problem of a mountain of regulations pouring in as a president is winding down his final days in office. The regulatory process is one where a president can put his stamp on policy without the mess of trying to work policy through the legislative process. As a president is leaving office, this process jumps into overdrive. It is also a way the president can tie the hands of an incoming administration when that new administration is from the opposing party. Thus in 2000-2001, the Clinton administration issued regs lowering the permissible levels of arsenic in drinking water which gave the Bush administration a giant headache as it attempted to overturn the regulation and restore it to the original level. Generally speaking, when the new administration comes to power, any regulation that has not been finalized gets thrown out the door, which can be frustrating to career bureaucrats who put in a great deal of work only to see the fruits of their labor pitched into the garbage can.

Last year, Bush's Chief of Staff, Josh Bolten, sent out a memo to all departments and agencies demanding that any new regulation be finalized by November 1, 2008 to insure that 1) bureaucratic efforts are not wasted and 2) to insure that the president's policy stamp is protected and maximized. Thus, as a result of this order, incoming Chief of Staff Rahm Emanuel threw out "significantly fewer regulations than had Chief of Staff Andy Card" in 2001.

Thus as a result of this order, the administration was able to insure passage of key policies to which President Bush wanted to be remembered for:

* An HHS order protecting medical practitioners from performing services that violated their beliefs;
* A DOI order allowing mountain top mining;
* Treasury order restricting internet gambling.

More importantly, and a subtext to her piece, the order made sure that organized interest groups did not have their way with the treasury by pushing through thousands of regulations while the president and his staff were distracted with the business of leaving office.

Now there is an element of "nothing is as it seems" to this piece. In one part, she highlights how well the Bush administration cut down on "midnight regulations" that end up junked by the new administration when compared to previous administrations. But, when you expand the time period under study--to the last full year in office--you find that the administration issued more regulations than the previous year. So simply by moving the "drop dead" date from noon January 20 of the new year to November 1 of the last year, you have put on notice when the executive branch agencies have to finish the "president's work." To put it a different way, the Bush administration's policy maximized the president's advantage in the final year's regulatory output to insure favored regulations passed while those not favored died. In previous administrations, both ended up getting through because a president and his team simply concentrated on those important things that needed accomplished while organized interests also got their way.

Thus the Bush administration's policy simply advanced the president's power in the never ending saga of political institutions seeking advantage over others that has been a part of our system since 1789.

Smackdown

President Obama has been getting a lot of grief recently as a result of his signing statement over the "Supplemental Appropriations Act, 2009" and his challenge to a number of provisions that demanded the administration take certain positions in US policy in relation to our funding to the IMF, among other things. Most of the grief spins on statements Obama made while on the campaign trail during the Democratic Primary in 2008 that seemed to indicate an unwillingness to use the signing statement under any circumstances, or under a limited, but undefined, set of circumstances. Lost in the shuffle is Obama's statement made in December 2007 when he filled in a questionnaire on how he would use the signing statement. Obama is asked: "Under what circumstances, if any, would you sign a bill into law but also issue a signing statement reserving a constitutional right to bypass the law?" Obama wrote:

I will not use signing statements to nullify or undermine congressional instructions as enacted into law. The problem with this administration is that it has attached signing statements to legislation in an effort to change the meaning of the legislation, to avoid enforcing certain provisions of the legislation that the President does not like, and to raise implausible or dubious constitutional objections to the legislation. The fact that President Bush has issued signing statements to challenge over 1100 laws – more than any president in history – is a clear abuse of this prerogative. No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives; unfortunately, the Bush Administration has gone much further than that.

There are two important points in his answer, and unfortunately the focus has only been on one part. Obama says that he will not use the signing statement to "nullify or undermine congressional instructions enacted into law." Now if you use just this standard, any constitutional challenge in a signing statement by definition will either nullify or undermine congressional intent. You have to partner it with a key second part: "No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives."

The constitutional signing statement is designed to challenge provisions that either intrude upon the prerogatives of the president or violate the rights of states or individuals. Under the principle of coordinancy, it is the obligation of each branch of government to determine the meaning of the Constitution and the powers it is given. The Congress and the presidency have been pushing the boundaries of their respective powers since 1789 and will continue to do so in the future. To insure that a push does not "stick," the president has made use of the signing statement to declare that certain provisions violate his prerogatives--the formation of hybrid commissions, the power to recommend, the power to appoint, the power to establish foreign policy, etc. The Bush II administration decided to use the constitutional signing statement, without congressional objection, to make broad claims about the power of the presidency--claims that were not seen as legitimate by most people.

Obama clearly claimed both in December 2007 and in his March 2009 memo on the use of the signing statement that he would revert to the more traditional use of the signing statement--to protect his prerogatives and the rights of states/individuals, and not to upset the clear intention of the Congress for political purposes or to make illegitimate claims of presidential power. You may ask what the first part means--making claims for political purposes?

Presidents have run into trouble when they attempt to use the signing statement to negate a battle lost in the Congress. For instance, the Reagan administration made a change to a controversial provision of the 1986 Immigration Reform and Control Act that revised a provision dealing with discriminatory firing. The provision was designed to allow fired employees to sue based on discrimination, placing the burden of proof on the employer. Because the provision was not clearly defined, the Reagan administration used the signing statement to define the provision so it placed the burden of proof on the fired employee. Then in 2002, the Bush administration defined the whistleblower provision of Sarbanes Oxley so narrowly that it provoked outrage in the Senate--Senators Leahy and Grassley pressured the administration to back away from the provision, which the administration did temporarily.

A Tisket A Tasket

Interesting developments on the issue of the signing statement. President Obama's most recent signing statement, which I discuss here, rankled many in Congress for challenging the Congress's attempt to force the Treasury Secretary to take certain positions in international institutions such as the World Bank and the IMF. Obama wrote:

...provisions of this bill within sections 1110 to 1112 of title XI, and sections 1403 and 1404 of title XIV, would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with international organizations and foreign governments, or by requiring consultation with the Congress prior to such negotiations or discussions. I will not treat these provisions as limiting my ability to engage in foreign diplomacy or negotiations.

This is pretty run of the mill stuff. Presidents are very protective of their foreign policy prerogatives, and it is an area where you should always expect to see a challenge in the signing statement. As I also noted, President Obama did not issue a Statement of Administration Policy (SAP) communicating these problems ahead of time, which is normal and which also contradicts his directive of March that promised to communicate in advance any problems in legislation as it is winding its way through Congress. I assumed that he did this informally. Apparently I was wrong.

CQ reported today (sub. req.) that Representative Kay Granger (R. TX), who is the ranking Republican on a sub-committee of the Appropriations Committee, added an amendment to HR 3081, the "Department of State, Foreign Operations, and Related Programs Appropriations Act, 2010," that negates Obama's signing statement challenges. Granger added the language to insure" that the will of Congress was followed." Backing up the amendment is Barney Frank, who threw his support Granger's way. Frank, who knows something of a signing statement during his experience with the Immigration Reform and Control Act of 1986 said that if Obama made good on his challenges, "there would be no more funding for the IMF and World Bank."

The administration responded with a veto threat of its own. In the SAP to HR 3081, the administration argued it would not tolerate any language that conflicted with the "President's authority as Commander-in-Chief." They noted that the Granger amendment, similar to language in the recently signed Supplemental Appropriations Act and the Omnibus bill signed back in March, this language constrains the President's foreign policy prerogatives by "...directing Executive officials to adopt certain positions or objectives in negotiations and other dipomatic interactions."

There is something interesting about this particular SAP. In President Obama's signing statement to the Omnibus bill in March, he simply noted that the bill raised "constitutional concerns," and then pointed to those concerns as follows:

• Foreign Affairs. Certain provisions of the bill, in titles I and IV of Division B, title IV of Division E, and title VII of Division H, would unduly interfere with my constitutional authority in the area of foreign affairs by effectively directing the Executive on how to proceed or not proceed in negotiations or discussions with international organizations and foreign governments. I will not treat these provisions as limiting my ability to negotiate and enter into agreements with foreign nations.
• United Nations Peacekeeping Missions. Section 7050 in Division H prohibits the use of certain funds for the use of the Armed Forces in United Nations peacekeeping missions under the command or operational control of a foreign national unless my military advisers have recommended to me that such involvement is in the national interests of the United States. This provision raises constitutional concerns by constraining my choice of particular persons to perform specific command functions in military missions, by conditioning the exercise of my authority as Commander in Chief on the recommendations of subordinates within the military chain of command, and by constraining my diplomatic negotiating authority. Accordingly, I will apply this provision consistent with my constitutional authority and responsibilities.
• Executive Authority to Control Communications with the Congress. Sections 714(1) and 714(2) in Division D 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. 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.
• Legislative Aggrandizements (committee-approval requirements). Numerous provisions of the legislation purport to condition the authority of officers to spend or reallocate funds on the approval of congressional committees. These are impermissible forms of legislative aggrandizement in the execution of the laws other than by enactment of statutes. Therefore, although my Administration will notify the relevant committees before taking the specified actions, and will accord the recommendations of such committees all appropriate and serious consideration, spending decisions shall not be treated as dependent on the approval of congressional committees. Likewise, one other provision gives congressional committees the power to establish guidelines for funding costs associated with implementing security improvements to buildings. Executive officials shall treat such guidelines as advisory. Yet another provision requires the Secretary of the Treasury to accede to all requests of a Board of Trustees that contains congressional representatives. The Secretary shall treat such requests as nonbinding.
• Recommendations Clause Concerns. Several provisions of the Act (including sections 211 and 224(b) of title II of Division I, and section 713 in Division A), effectively purport to require me and other executive officers to submit budget requests to the Congress in particular forms. Because the Constitution gives the President the discretion to recommend only "such Measures as he shall judge necessary and expedient" (Article II, section 3 of the Constitution), the specified officers and I shall treat these directions as precatory.

Now, aside from the specific sections he lists, it is up to the researcher to figure out what the challenges are. For example, under the bullet point for "Legislative Aggrandizements," which he qualifies as "committee-approval requirements," all that he says is that there are "numerous provisions" that require the administration to notify Congress before they act on the legislation--something also known as a legislative veto. How numerous? I have just completed an in-depth scan of the bill, and I find over 100 provisions that require committee notification before action--not after action, but before. Most of those provisions (67) are found in Division H of the bill, which deals with foreign policy/international relations. Now the interesting thing in the SAP is that the administration is more specific about the problems of HR 1105:

Similarly, consistent with longstanding Executive Branch concerns about similar provisions, reflected recently in the President's statement in signing the Supplemental Appropriations Act, 2009, and the Omnibus Appropriations Act, 2009, language within sections 7026, 7030, 7054, 7069, 7070, 7081, and the International Monetary Fund Amendment...

If they can identify the very specific problems in the SAP after the fact, then why can't they be this specific when it comes to their challenges in the signing statement, as they originally promised?

So back to the tet a tet at hand. You may think that this is Republican posturing that probably won't go anywhere as the Democrats will defeat the amendment when it comes to the floor for a vote, thus protecting the man in the White House. I mean this was Republican behavior from 2001-2006, when President Bush did one thing after the next to diminish the authority of the Congress. Not so with the Democrats. In a 429-2 vote this evening (with 7 not voting), the House approved the Granger amendment (and Dennis Kucinich was one of the no votes). According to Representative Frank, the vote was "not just on behalf of (the Congress), but (also) on behalf of democracy."

Now it is on to the Senate, and then conference. It will be interesting to see whether this amendment makes it to the President's desk. Do the Democrats save Obama and remove the provision in conference, or does Obama make good on his veto threat and veto the bill (doubtful)?

I will say there is a promising sign out of the Congress regarding how it should deal with the signing statement. As I have noted elsewhere, Congress's high profile attempts to battle the use of the signing statement have been all style, no substance. To date, it has been about ordering the courts to ignore them, which is totally unworkable. But now they are thinking. Representative Frank and Representative Mark Kirk (R. TX) have offered another way:

(They) said that one way they could get presidents to stop issuing signing statements casting aside laws would be to refuse to fund their priorities.

Now you are talking. In the 1980s, when the Congress had enough with the Reagan administration's use of the signing statement, they simply cut off funding to the Department of Justice until the administration capitulated. It seems the Congress is finally paying attention to history!

Stay tuned as this legislation comes to a head in a couple of months.

More Signing Statements

I think I might be getting the hang of Obama's signing statements, to differentiate the purely rhetorical from the constitutional. But before this, let me go on record again with the observation that the administration seems to be deliberately frustrating attempts to keep track of how the constitutional signing statements are used. How so? First, on the frontpage of the White House website, down towards the bottom half of the page, you find "Featured Legislation." Let it be known that this is an incomplete accounting of the signing statements and it is often old news, placing signing statements days after they have been signed. For instance, the "Family Smoking Prevention and Tobacco Control Act," was signed last Monday, yet its placement on the White House webpage came at the end of the week. This signing statement, for those keeping track, is a rhetorical statement done in a very public format and announced in the Rose Garden at the White House. There, Obama takes the time to thank VIPs assembled at the Rose Garden as well as the work done by Congress to get the bill to his desk. For example, Obama states:

This legislation is a victory for bipartisanship, and it was passed overwhelmingly in both Houses of Congress. It's a victory for health care reform, as it will reduce some of the billions we spend on tobacco-related health care costs in this country. It's a law that will reduce the number of American children who pick up a cigarette and become adult smokers. And most importantly, it is a law that will save American lives and make Americans healthier.

(You catch the reference to health care reform??)

Now if you scroll down to the bottom of the page, you will find "Statements and Releases," which should contain all types of signing statements, and not just those that the administration wishes to showcase. Here is where I think I have "cracked the code." In the constitutional signing statements, thus far at least, the administration simply writes the bill number. In the case of President Obama's most recent signing statement (the 12th signing statement and the 5th to contain a constitutional challenge), it simply says "Statement from the President upon signing HR 2346". For those who have read media reports (i.e. here and here), they have been told that the challenges came to a war supplemental appropriations bill, thus searching those terms will leave the interested party confused. Only after clicking do you find that HR 2346 is indeed the "Supplemental Appropriations Act, 2009".

So when looking for Obama's signing statements, be diligent!

This signing statement, which is similar to those of his immediate predecessors, excluding Bush II, leaves the first several paragraphs to explaining what the bill consists of and the reasons for signing it, and leaves the challenges for the end of the signing statement. Thus comparing this statement to those of the Bush administration is not completely accurate, nor is it accurate for another reason, which I will address momentarily. But first, the challenge. President Obama writes:

...provisions of this bill within sections 1110 to 1112 of title XI, and sections 1403 and 1404 of title XIV, would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with international organizations and foreign governments, or by requiring consultation with the Congress prior to such negotiations or discussions. I will not treat these provisions as limiting my ability to engage in foreign diplomacy or negotiations.

Now recall that President Obama promised to be different from his predecessor (though he didn't specifically name him) when he issued his directive a couple of months ago outlining how he intended to use the signing statement. Specifically, Obama promised to (1) inform Congress beforehand about the "constitutional concerns" of any bill winding its way through the legislative process in order to "work together to address these concerns...thus minimizing the number of occasions on which" a signing statement would be used; (2) conclude that a provision is unconstitutional when issuing a signing statement, and if so, to exercise "caution and restraint" and to ground his conclusions on "interpretations of the Constitution that are well-founded"; (3) make sure that any challenge was clear and concise so that Congress, the courts, and whoever else would understand exactly why President Obama, and his legal advisers at the Justice Department, are making the challenge; and (4) to construe defective provisions of a bill in a way that is legitimate and "avoids a constitutional problem..."

On the first point--informing Congress ahead of time about constitutional deficiencies. In the Statement of Administration Policy for HR 2346, there is no mention about any of the problems the administration found in the bill. Now this does not necessarily mean that communication did not happen. It could have happened informally between congressional leadership and the administration--my friend who works inside Congress tells me that there is a great deal of informal communication--but given that the first point of his directive is a promise to communicate, it appears incumbent to put these concerns in a public document like a SAP.

The President does a better job than his predecessor in singling out one objection rather than lumping objections together, though he still does not get specific enough on what he is objecting to, thus placing the onus on outside parties to figure out whether something is or is not a problem. Obama stated his objections to "provisions of this bill within sections 1110 to 1112 of title XI, and sections 1403 and 1404 of title XIV..." If you look at these sections, you will find that they are divided into a number of sub-sections where not all fall into the problems he cited in his signing statement--that the Congress is attempting to direct foreign policy, either by explicitly telling his inferiors (in this case, the Secretary of the Treasury and a lesser extent US delegates to international financial institutions) what sorts of positions to take on international monetary matters or more generally international issues such as climate change or social/education policy within Third World countries. Thus if you scan the bill carefully, you find 15 specific challenges contained in Obama's challenge. Why can't the administration come out and single out specific provisions that are being challenged? If you read the signing statement without looking at the bill, you may conclude that Obama had five challenges, which is precisely what the administration wants us to think. Like all previous presidents, by being general in his challenges, it leads to an undercounting of challenges, thus suppressing the total number. And because it is a pain to sift through a bill and make a decision that one provision seems to fit while another doesn't, it makes sense why the President remains general. The problem is that he made a commitment to be transparent in his challenges, and so far hasn't been. Simply being different from his predecessor is not good enough.

Which brings me to the final point--his difference with the Bush administration. Obama is no different in going to great lengths to protect his foreign policy prerogatives--if you look back to all Presidents from Reagan forward, one of the top areas of challenge is in the area of foreign policy/defense policy issues. What is different for Obama is that he left reporting requirements unchallenged. In a couple of different sections, the Congress orders the Secretary of Treasury to make reports, due months or a year later, on how well objectives are being met, for instance. This reporting language is common, and the President often instructs his inferior to make the reports. The difference with his immediate predecessor is that Obama didn't object. President Bush often inserted language that objected to such language as a violation of the "unitary executive." The objection being (1) the president controls information inside the executive branch and (2) only the president can instruct inferior executive officers on what they may or may not share. For instance, when President Bush signed the "Intelligence Authorization Act for FY 2005" back in December 2004, he argued: "The executive branch shall construe provisions in the Act...that mandate submission of information to the Congress, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to withhold information that could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties..." Obama let them slip without objection.

So Obama continues to use the signing statement in a more traditional manner, yet continues to fall short on the promises he made to make them more transparent.

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.