Return of the Signing Statement

But not what you think.

There is a separation of powers battle going on right now in Missouri, and the signing statement is right at the center of it. If you are confused, then let me explain.

It is my belief that the current use of the signing statement was largely influenced by chief executives at the state level, and not the federal level. When the Reagan administration was defending its use of the signing statement back in the 1980s, they pointed to actions of governors, who had used the signing statement frequently to challenge defective provisions of law--much the way that presidents have pointed to the use of the line item veto by state governors to underscore why we should not be worried about the president having the same ability. I had filed this fact away when I was working on my dissertation as something that I should return to down the line--how many, how often, and how long have governors been using the signing statement to correct defective provisions of law? And so I have found bits and pieces of evidence where it has been used--for example, former Governor of Kansas turned current Secretary of HHS Kathleen Sebelius frequently used the signing statement to do battle with the Kansas State Legislature (such as this example of what I call a rhetorical signing statement).

And this brings me back to the beginning. Last month, Missouri Governor Jay Nixon (D) used a constitutional signing statement (.pdf) to challenge an education appropriations bill. Nixon wrote in the final paragraph of the statement:

The Language in Section 14.005, purporting to deviate from current law, is legal surplusage and beyond the constitutional authority of the General Assembly. Therefore, consistent with the requirements of Article IX, Section 3(a), and in recognition of the limitations imposed by Article III, Section 23, the Department of Elementary and Secondary Education shall distribute the funds appropriated under Section 14.005 of Senate Committee Substitute for House Committee Substitute for House Bill No. 2014 consistent with existing law.

There it is--plain and to the point. The legislature so far has been fumbling as to the appropriate course of action--sue using their own attorney, or "...ask Attorney General Chris Koster to do so." Never fear, the attorney general is here.

Senator Jason Crowell (R) of the Missouri legislature has asked Missouri Attorney General Chris Koster (D) to look into the action to determine its legality. Crowell argued that the "...governor has no authority to interpret the constitutionality of legislation passed by lawmakers--he can merely approve it, veto it or, in the case of budget bills, veto specific line items...the signing statement...is violating the separation of powers and...sparking a 'constitutional crisis.'"

No word yet out of AG Koster's office on what he will do. My guess is that Senator Crowell isn't so concerned with the signing statement, but instead the politics of the AG's decision. Force the AG to decide between the constitutional place of the signing statement or his boss as the head of the ticket. I am willing to bet that previous Governors of Missouri have used the signing statement to challenge provisions of law--and Nixon, who once served as Missouri's AG, probably knows this. But since the signing statement is so obscure (Crowell admitted to not understanding precisely what it was himself), the legislative Republicans will have an easier time framing its use in terms of tyranny. Thus in this AP article, one MO. Senate Republican called it "Tyranny" while another claimed it as "an unprecedented power grab." Heck, it worked wonders for congressional Democrats back in 2006 when George W. Bush was under the spotlight for his use of the signing statement, so why not now?

Stay tuned...

Why Is It So Hard To Get It Right?

This book review of Gary Wills's new book on executive power is emblematic of why my attempts to make the unitary executive theory mainstream will probably never happen.

The book, Bomb Power: The Modern Presidency and the National Security State, apparently makes the case that the persistence of international crisis (mostly the Cold War) has allowed the modern presidents (since FDR) to centralize massive power within the Oval Office--apparently far greater power than even imagined by Alexander Hamilton, the Godfather of the strong presidency (if you believe revisionist history). I have a great deal to say in a critique, but I would prefer to read the book before I do (however I would love to hear from you if you have read the book and what you think about the argument).

What burns me is the things--the important things--that this reviewer, Jurek Martin, gets wrong. There are the minor things--for instance, Martin notes that the Pentagon Papers were "...published only after the Supreme Court so ordered." That isn't true. The Papers had already begun running in the "Washington Post" and the "New York Times" before the Nixon administration asked for the injunction. Nixon was delighted at how the Papers dimmed the light on Camelot, and was persuaded by Kissinger to put a halt to them because of their damage to elite opinion.

No, what gets me is Martin's characterization of the unitary executive and the signing statement. He writes of the unitary executive:

But the organic growth of the national security state needed theoreticians and they comprise Wills’s large Hall of Infamy. It was the (ironically conservative) Reagan justice department, under attorney-general Edwin Meese, that developed the theory of the “unitary executive” – which basically says that the law is anything that the president says it is.

First, why is support for the theory antithetical to conservatives? Why "ironical"? Second, more to the point, is the definition of the unitary executive--"which basically says that the law is anything that the president says it is." Where in the literature do any scholars, including myself, define the unitary executive this way? As I have noted elsewhere, there are three tenets to the unitary executive: 1) the executive power belongs to the president and the president alone; 2) that the president has an independent right to interpret the Constitution and to determine what actions need be taken in the face of laws that he considers to be unconstitutional; and 3) as the only nationally elected official in the United States, he has a constitutional obligation, via the "Take Care" clause of Article II, to make sure that the laws are faithfully executed. This means that the president has a right to know, if not influence, how inferior executive branch officers behave--how they enforce the law, who they communicate with outside the Executive Branch, etc. Now since the unitary executive theory first came to life, those three tenets have been in place. What in those three tenets suggest that the president may claim the law means what he feels it means? What Martin knows about the unitary executive apparently has come from blog postings.

Then he argues that the unitary executive has "produced a welter of 'signing statements' in which a president says he can disregard, for whatever reason, any section of a duly passed congressional bill he has just, er, signed." First, the signing statement, in all forms, preceded the birth of the unitary executive. Granted, they don't start becoming significant until the Reagan administration, but even so, the unitary executive--as a formal theory--didn't debut until after Reagan left office. So while the two have a lot in common, one thing it doesn't have in common is cause and effect. And then, just like his definition of the unitary executive, his definition of the signing statement is equally as bad--the president can disregard, "for whatever reason"?? I wish Martin would find for me any signing statement--even the more egregious Bush signing statements, that say: "I refuse to enforce Section 111 just because." Then finally Martin says that "Bush the Younger" issued "more then (sic) 1,400 such reservations..." He may have gotten this number from Wills, at which case I am interested in his citation. But 1,400? By my counting, Bush issued less than 1,200. Where the extra 200+ came from is beyond me.

But this is the "Financial Times", which has a readership considerably higher than this blog posting or my research. I am obligated to be precise and accurate, why aren't they?

Today's New York Times carries a story about Obama's turn toward unilateralism after a first year that was a mixed bag of success and failure (and an article on presidential power that was not penned by Charlie Savage).

This move is so predictable to anyone who has watched presidential behavior in the last 30 years--in fact, not to toot my horn, but it is something I told reporters last January when asked if Obama would be a different president than President Bush (one was to Pacifica Radio and the other was to Congressional Quarterly). Then I stated that once the dust had settled and the glimmer of the Obama victory faded, his public approval numbers would begin to fall. Further he would find frustration in trying to advance important policy through the Congress--promises he had made on the campaign trail--and with an impending re-election campaign coming--would need to act quickly--thus would turn to the unilateral powers that are now deeply entrenched in the Oval Office.

So here we are, just a little over a year after Obama was sworn into office, and the administration is announcing that it gave Congress its chance to come on board, and Congress failed to act:

Mr. Obama has not given up hope of progress on Capitol Hill, aides said, and has scheduled a session with Republican leaders on health care later this month. But in the aftermath of a special election in Massachusetts that cost Democrats unilateral control of the Senate, the White House is getting ready to act on its own in the face of partisan gridlock heading into the midterm campaign.

"Look, we gave it a shot and Congress just wouldn't give us everything we wanted, so we all need to move on" seems to be the message here. The interesting thing about this is how quick the administration is to move to unilateralism and how flimsy of an excuse it has given--how many presidents in the past would have loved having control of both houses of Congress, including 59 Senators?

With each president since Reagan--bar one--the president moved toward unilateralism for good reason--they were dealing with an opposition that not only controlled one or both houses of Congress but were bitterly partisan. For instance Clinton didn't lurch toward unilateralism until 1995--after the Republicans took the Congress. And the one president who went unilateral right away when given a Congress controlled by fellow partisans? George W. Bush. George W. Bush had unified party control of government and a public approval rating that was sky high, yet behaved as if he was surrounded with a hostile public and Congress.

The problem to me seems to be that Obama hasn't figured out leadership yet. For instance, last year he made the ill-fated decision to allow the Congress to construct two major and controversial policies--health care reform and cap and trade--without the involvement of the White House. And when Congress failed, he now thinks that he can get by without them.

Congress is like that wild horse you often see featured in Disney movies that needs to be broken. The only way you break it is to get on its back and show it who is boss. You don't break a wild horse by putting it in a pen and allowing it to tame itself. Had the Obama administration told Congress from the outset what it wanted--and worked diligently at each step--chances are good that the President would not be in the pickle he currently is.

If he is looking for a history lesson, he should look to Reagan's first term. He gave Congress just a couple of major policies to focus on and he used a carrot/stick approach to getting what he wanted. He did the little things like posing with Members or inviting leaders on the yacht Sequoia for one on one time, and for those who were recalcitrant, he called their major donors or he singled them out for personal attacks--all of which worked. Had Obama taken a similar approach, you might not have 60 or 70 nominees bottled up by one senator--instead, he should have made Senator Shelby of Alabama a day-after-day symbol of Republican obstructionism and not waited until now to do so.

So from a research perspective, I am pleased to see that unilateralism is alive and well.

Yes We Can!

There is a lot of flak the Obama administration is getting lately, some of it deserved, some of it not. And it certainly will only get worse as the November midterms draw near. A case of the hypocrisy in the flak appeared in yesterday's Wall Street Journal's OpEd page. Imagine that! Hypocrisy on the WSJ's OpEd page. And who better to dish the hypocrisy than Karl Rove?

Karl Rove offered a laundry list of items where Obama has reneged on campaign promises, and one of those promises is the signing statement. Rove has lept upon the recent information in last week's New York Times on how Obama has gone underground with his constitutional challenges, no longer using the signing statement, and instead using OLC opinions which are not always published. It is interesting that Rove relies upon this Times piece given how much effort the Bush administration expended trying to undermine it back in 2006 and 2007.

First, let's brush aside the things Rove got wrong. He argues that presidential signing statements date to "Andrew Jackson." They date to James Monroe. Rove argued: "Because of Washington's hyperpartisan atmosphere, President George W. Bush drew heated criticism from Democrats for his signing statements." Actually the criticism was bipartisan--and leading the attack was then Republican Arlen Specter, who held the Senate hearings on the Bush administration's use of the signing statement in June 2006.

Next he argues: "Among [Bush's] toughest critics was Barack Obama..." That simply is not true. Obama was not a leading critic of the Bush administration's use of the signing statement. In fact, among the toughest was Senator John McCain (R. AZ), who was the only candidate for the presidency in 2008 to swear off using the signing statement for any reason should be become president.

Now the hypocrisy, which Rove claims is all Obama's. Rove writes:

Recently, the Obama administration admitted that after receiving the letter from Messrs. Frank and Obey, it stopped the practice. But the president still has aides examine each bill to identify provisions the administration will disregard. It's just that Team Obama isn't telling Congress which provisions it is ignoring. It's right for him to defend the office of the presidency. The problem is that he is doing it in a way that violates his own standards of transparency and accountability.

Wow. First, ever since the Reagan administration, it has been standard practice for the president's advisers to examine each bill to identify those provisions that warrant a challenge. In fact, up to the Bush administration, this was the sole duty of the Office of Legal Counsel inside the Department of Justice. If you want to complain about political advisers making suggestions about challenges, then Rove should have stayed in-house given that the vice president and his right hand man Addington were making decisions about challenges that contradicted the advice of the Office of Legal Counsel (guardians of the Constitution) as well as the President of the United States (see the 12/30/05 signing statement of the Detainee Treatment Act).

And second, Rove cannot possibly be condemning another administration about its lack of transparency in its use of the signing statement. If we go back to the strategy sessions in the Reagan Justice Department over the use of the constitutional signing statement, Samuel Alito, a young attorney in the DoJ, advised the use of constitutional challenges over bills where no one would pay much attention in an effort to slip it past the Congress. And then there is the Bush II administration. One of my Bush-era FOIA request asked for challenges that were reported to the Congress, which is a requirement written in statute. They gave me challenges made during the Clinton administration. This despite a GAO finding of several provisions of law that were not enforced. And then there are the signing statements themselves. Many were so vague that it was impossible to determine what was exactly being challenged or why. And then in 2007 and 2008, after public attention was drawn to the use of the signing statement, the challenges disappeared. Where did they go? It is clear they went underground to the OLC. I am convinced that the Obama administration's new strategy simply picks up where the Bush administration left off. Using the OLC to issue the challenges so as to avoid public scrutiny. My next round of FOIA requests will determine whether this is true or not.

So to me it takes a tremendous amount of moxie to criticize any administration for its lack of transparency given what the Bush administration did--often with the help of Rove--political operative par excellence! But then again, he picked the WSJ's OpEd page, which is never short on hypocrisy when it comes to criticizing Democrats.

New Research on the Signing Statement

My colleague Bryan Marshall and I have a new publication in Social Science Quarterly (March 2010) that examines the various conditions that explain the use of the presidential signing statement. In the paper, we looked at such conditions as divided government, federal election cycles, and whether the legislation was major or minor, and found that presidents seek any condition to provide the opportunity to move unilaterally. Interestingly we find that presidents are as likely to use the constitutional signing statement during periods of unified government as during periods of divided government.

For the time being, the article is available online at the Social Science Quarterly website.

Be Careful What You Ask For

Philip Cooper, in his excellent review of unilateral devices a decade or so ago, noted that when elites begin to focus on the way the president uses a unilateral device, the president will shift to a different device that accomplishes the exact same thing but does not come with the same public scrutiny baggage. In the 1990s there was a lot of scrutiny of the executive order, for example, which Clinton was using in order to accomplish policy goals shut out by the Republican Congress. So Clinton simply shifted to a different device, or "tool" as Cooper called it, such as the "memoranda" to take the place of the executive order. Different device, same effect. What was different was public scrutiny.

A unilateral device, as you readers well know, is something that the president uses to accomplish political goals. Their value is they allow the president to circumvent the Congress. Examples of unilateral devices: the executive order, memoranda, the presidential proclamation, the executive agreement, and the signing statement.

Today's New York Times has an article about the signing statement and its use by the Obama administration that may confirm Cooper's argument.

The article notes that the Obama administration has laid off using the constitutional signing statement since last summer despite signing bills that should have elicited challenges. If you recall, Obama set off a firestorm in the Congress last summer when he challenged provisions of law dealing with US participation in international institutions despite earlier compromising with the Congress to allow the prohibitions to go forward. Obama caught a left-right series of punches from Democrats and Republicans upset with the challenges. After that, Obama issued no more constitutional signing statements (though he has issued rhetorical signing statements since). Yet, as the article notes, Obama signed legislation last month that contained the exact same prohibitions but did not issue a constitutional signing statement challenge the provisions. Instead the administration argues there is no need to repeat the challenge because of their previous challenges, backed up with an OLC opinion claiming the right to ignore the provisions. But that opinion was for a different bill, which does not seem to bother the administration.

Interesting.

There are a number of different theories surrounding the reasons why a president issues a constitutional signing statement. One theory is you make the challenges to any infraction in any bill in case the issue lands in the courts--the president can point to a consistent set of challenges refusing enforcement, as happened with the legislative veto in the 1983 Chadha decision. A second theory suggests that they are used in an effort to influence judicial decisionmaking, which was behind many of the bills in the last couple of years attempting to limit the use of the signing statement. A third theory suggests that they are used to influence bureaucratic decisionmaking. It seems that that administration may be abandoning that first theory in the belief that these issues are not likely to end up before the courts, so why consistently draw attention to the constitutional signing statement by constantly repeating yourself with identical challenges?

They may also be hoping that new strategy, coupled with the numerous obstacles they have raised to track the use of the signing statement, will simply cause the issue to disappear as the public turns their attention elsewhere. Maybe. But they may be behaving as Cooper believed--turning to a different device that is harder to track. In the article, Jack Goldsmith, who worked in the OLC in the Bush II administration, notes that turning to the OLC opinion has advantages over the signing statement in that OLC opinions "are often secret," leading to "somewhat less accountability." Thus the only way you would know whether or not a challenge was made would be to try to monitor the behavior of those who work for the president, an incredibly daunting task that even the Congress has trouble doing.

It is ironic--this behavior is in direct relation to the abuse of the signing statement by President Bush II. His actions, which drew such high profile scrutiny of the signing statement did not lead to the disappearance of the device, but instead lead to driving it underground, leaving less accountability and scrutiny to a device that was already hard to track to begin with.

Be careful what you ask for, I guess.

Meet the New Boss--Same as the Old Boss

SUNY-Cortland Professor Robert Spitzer, who studies the president and presidential power--and in particular the veto--took notice of, and responded to, an attempt by President Obama to use twist the language on the veto in a way to enhance the president's power over the Congress.

The issue is something known as the "protective return pocket veto," and Obama issued it on December 30 of last year (notice how it came on New Years Eve when no one was looking? Similar to President Bush's infamous torture signing statement of December 30, 2005). As Spitzer explains, the founders took pains to balance the relationship between the Congress and the president when it came to legislation.

As we all know, when the Congress passes a bill, it sends it to the president for his consideration. The president has ten days to act--sign it, not sign it, or veto it. Here is where the concern was--the veto gives the president a lot of control over legislation, and the Founders worried that it might be too much control. Thus instead of giving the president an absolute veto, they instead gave him a qualified veto, meaning that the Congress has the opportunity to override the veto, so long as it can must supermajorities in both chambers. The ten day clock was added to force the president to act, for without it the fear was the president would leave it on his desk and not act on legislation he did not like. On the other side, when the president vetoes a bill, he returns it to the Congress for action. Here is another potential problem dealt with by the Founders--what happens if Congress gives the president a bill that is controversial but then quickly adjourns, leaving him without anyone to return it to? In steps the pocket veto--any bill that has not run out the ten day clock when Congress adjourns is officially dead.

The protective return veto attempts to let the president have it both ways--vetoing a bill without sending it back to the Congress for action. President Obama's veto statement was titled "Memorandum of Disapproval"--which Spitzer notes is the nomenclature for the pocket veto, but in his message he wrote that the bill was vetoed though he cited Supreme Court precedent dealing with the pocket veto. As Spitzer argues, "...claiming the exercise of a non-return pocket veto while simultaneously returning the bill to Congress is a presidential power grab designed to stretch the no-override pocket veto into an absolute veto power that could be used anytime Congress is not in session, giving the president the very power the Founders sought to deny the office."

This practice of trying to add language to the veto power denied by the Founders was begun by Ford and pursued--despite Supreme Court opinion to the contrary--by each president since. It also is a practice that corresponds to the rise presidential unilateralism following Watergate--something many believed would disappear with Obama but clearly has not. And given his attempt at subterfuge by delivering it on New Years Eve, hopefully when no one was looking, is more evidence that the new boss is the same as the old boss.

Asked and Answered?

So yesterday I asked why the Weekly Compilation of Presidential Documents--updated regularly since 1965--stopped getting updated once President Obama took office. Well rather than asking rhetorically, I sent a message to the Government Printing Office asking them what gives. To my surprise--given that it is the government and that I have FOIA requests that have not been answered for months--they answered me within a day! Here is there complete answer:

The Weekly Compilation of Presidential Documents has been replaced by the Daily Compilation of Presidential Documents as of January 29, 2009. The Compilation of Presidential Documents collection is composed of the Daily Compilation of Presidential Documents and its predecessor, the Weekly Compilation of Presidential Documents. It is published by the Office of the Federal Register, National Archives and Records Administration (NARA) under the authority of the Federal Register Act, (44 U.S.C. Ch. 15; 1 CFR part 10).

This collection integrates material from the weekly publication dating from 1993, with Daily Compilation material as published from January 20, 2009 - forward. The website will be updated frequently, as information is released by the White House press office to Federal Register editors.

I think the last part is instructive: "The website will be updated frequently, as information is released by the White House press office to Federal Register editors." The fact of the matter still remains that this move to the daily releases has not necessarily made it any easier to monitor the behavior of the president.

Riddle Me Some More

For those who do research on the signing statement, the reliable place to go for the longest time has been the "Weekly Compilation of Presidential Documents." It has reliably been tracking everything that happens in the White House (within limits) since 1965, and since 1993 it has been online and searchable. Thus if you are looking for signing statements, all you need to enter is "Statement on Signing," and it will spit out each and every signing statement for that year. That is until the Obama administration.

If you are looking to the Weekly Comp to search out Obama signing statements, don't. As of January 26--just six days after Obama was inaugurated--the Weekly Comps stopped updating online. Instead, everything has seemingly shifted to the "Daily Compilation of Presidential Documents," which you can browse by month, but searching is a different question. If you want to search, you end up searching all government publications, which is not the same as searching one publication by year. So now if you enter "Statement on Signing", you will get your signing statements, but instead you will get all signing statements in the database.

I don't want to sound paranoid, but is it coincidence that trying to track the current president's signing statements just got harder and not easier?

Signing Statements, Local Style

In the past, presidents have justified their use of the constitutional signing statement by referring to the practice of state governors use of constitutional signing statements, much the way presidents have referred to the power that governors have to use the line item veto as reasons to tamp down fears that this would give the president too much power over legislation. But what about other chief executives, such as big city mayors?

I have recently come across an interesting signing statement issued by the Mayor of Washington D.C., Adrian M. Fenty. DC's attorney general--Peter Nickles--has sent a memorandum to the city council citing 16 problematic sections of the 2010 city budget, six of which contain provisions that Nickels says will not be enforced. These six provisions seem mostly to violate separation of powers principles by allowing the council to exercise executive functions.

To be perfectly honest, I do not know much about local government and whether this is a new practice in DC or something that has been long standing. This story in one of Washington's alternative dailies, chock full of quotes from folks on the council, seem to suggest that this practice is new to the city. But what is interesting is just how instructive this challenge should be to the White House--particularly the Obama White House, which promised to be crystal clear in the challenges he issues to provisions of the law. In the Nickles memo, he details what section and subsection is a problem, what it is designed to do, and why it interferes with the prerogatives of the mayor.

Just Like Bush

I have just completed a paper looking at the question of whether the unitary executive theory survived the Bush administration. In this paper, I look at how the Obama administration has exercised power consistent with the unitary executive, and that he has used the signing statement in a way that resembles his predecessors, including his immediate predecessor, George W. Bush.

President George W. Bush does not get much praise when it comes to his use of the signing statement, and most of the scorn is not misdirected. His administration's abuse of the signing statement--the blame I direct at his vice-president--has made it more difficult for his successor to use it without immediate criticism. Prior to the Bush administration, not many people, as I can attest, cared much at all about the signing statement. Not true today. But there were legitimate ways in which the Bush administration used the signing statement to challenge provisions of law (the so-called constitutional signing statement).

For example, as I documented a year ago, the Bush administration was handed a bill regarding India's nuclear program that had provisions that were offensive to the Indian Government and people because of provisions that seemed to weaken the territorial integrity of the country. As a way to mollify the Indian Government and keep them committed to US policy, the Bush administration showed them it's signing statement that challenged the controversial provisions. This made the Indians happy, and their objections were dropped.

Flash forward a year, and rather than the Indian Government, it is now Pakistan, and another foreign policy bill, though this time designed to provide Pakistan with security assistance for the next several years. Officially titled the "Enhanced Partnership with Pakistan Act of 2009," it is more commonly referred to as the Kerry-Lugar Bill, after its two sponsors, Senators John Kerry (D. MA) and Richard Lugar (R. IN). In particular, there are provisions of the bill that seem to tell the Pakistani government how it should use its military and security forces or suggests that the Pakistan is not doing all it can to crack down on terrorist organizations housed inside the country. This has created some diplomatic problems for the United States. And what has the US done to temper the concerns of the Pakistani leadership?

According to this story in "The International News," the proposed way out is a potential signing statement to challenge the contentious provisions of the bill. It notes that though the bill becomes law with the contentious provisions intact, "...the people of Pakistan would have a word from the President of the United States that America respects Pakistan's sovereignty" because the "statement that the...president makes, when he signs a bill into a law, is also meant to explain the president's intent how to execute, or carry out, the law including giving guidance to his administration..."

Thus the signing statement becomes a completely legitimate, and necessary, device that allows the president to deal with the twin pressures that come from the domestic and international spheres. It is funny that this story of the signing statement--particularly the constitutional signing statement, does not get told, unless you are privy to international newspapers, which covered this fairly extensively.

Cool Database Alert

Brandon Rottinghaus and Jeremy Bailey, two presidential scholars of note, have gotten their database on presidential proclamations up and running. The database has some 10,000 proclamations from the past to the present and should be a tremendous asset for anyone who does research on the presidency, presidential power, presidential rhetoric, presidential unilateralism, or is just interested in the development of the American Presidency.

Most people probably think of the proclamation as a meaningless rhetorical device--such as when the President issues a proclamation pardoning a turkey on Thanksgiving (maybe Obama can pardon Representative Wilson this Thanksgiving?), but in reality the proclamation can also be used in the service of exercising substantial power, as in the case of declaring thousands of acres of land public land. Clinton made use of the proclamation just for this very purposes, infuriating land developers out West.

Play around with the database. You won't be sorry.

Another Publication

Got confirmation that my co-authored article (with Bryan Marshall), "Going it Alone: The Politics of Signing Statements from Reagan to Bush II" just got the green light for publication in the journal Social Science Quarterly. It will appear in the March, 2010 issue of the journal. One of the peer reviewer suggested that we read some of the work on the signing statement done by Christopher Kelley! It is nice that folks know my work.

Apologists

During the Bush administration, whenever controversy arouse, there would be the defenders in the media to rebut the claims--in essence--to apologize for its transgressions. Now that the Democrats control the White House, the apologists on the Left have come out. Case in point is Mori Dinauer at The American Prospect. She has a blurb today defending Obama's use of the signing statement. At point is Charlie Savage's NYT piece a couple of days ago that was critical of the signing statements issued so far by President Obama. She writes:

There's no journalist who understands the issue of presidential signing statements better than Charlie Savage, but his New York Times story today on Obama's use of the tactic almost feels premature. We learn that the president has "relaxed his criteria for what kinds of signing statements are appropriate," this has "riled" some congressional Democrats, and the American Bar Association's most recent president doesn't believe signing statements are an "appropriate practice." The problem is that while Bush's signing statements were all grounded in an absurd theory of presidential authority, Obama's have avoided mention of any such underlying theory.

The apology comes in that final statement: Bush's statements were all grounded in "an absurd theory of presidential authority" while Obama has not "mentioned" the theory once--the theory of course is the unitary executive. Actually, if you are worried about president's acting in accordance to the theory, then you want a President Bush who overtly defends aggressive actions via the unitary executive. As I have noted elsewhere, the unitary executive is alive and well inside the Executive Branch--having been placed there through careful use by Presidents Reagan, BushI, Clinton, and Bush II. The problem is that until the Bush II administration, it was subtle in the actions the presidents took. Presidents Reagan and Bush I referred to it on just a couple of occasions and President Clinton never did. But if you look at the actions these Presidents took, then it was easy to see the theory at play. The same is true for President Obama. There is really nothing in his actions to date to suggest that he is behaving any differently, and for good reason. The theory allows the president to accomplish things that cannot be accomplished working with others.

So before we breathe a sigh of relief or before we admonish others for being quick to jump to conclusions, we should look to the actions the president takes and match them with the tenets of the theory. You might be surprised.

A Unitarian or Not?

Charlie Savage of the New York Times has a report in yesterday's newspaper on the signing statement and the Bush administration that sums up where the debate on the device and its use by the administration is today. My thanks to Charlie for throwing some light my way by citing my data on the numbers of signing statements per president, which can be found on my webpage stretching back to the Reagan administration.

There are a couple of points in the column that merit comment. Toward the bottom, Savage writes:

Mr. Obama has attached signing statements to 5 of the 42 bills he has signed, focusing on 19 specific provisions. He also challenged, without listing them, “numerous provisions” in a budget bill requiring officials to obtain permission from a Congressional committee before spending money. It contained dozens of such requirements.

This represents a problem for those like me who research the signing statement--the neglect that rhetorical signing statements receive simply because they are not as sexy as their constitutional brethren. To date, Obama has issued 13 signing statements of which 5 can be classified as constitutional. What this means is that 5 signing statements contained provisions that challenged the constitutionality--or interpreted--provisions of the bill contrary to legislative intent. The majority--which has been the case to date for every president BUT the two Bush's--issued more rhetorical signing statements than constitutional ones. The rhetorical signing statement is designed to draw public (press/congressional/international) attention to the bill the president signs.

It is important that we do not forget both have important implications for power.

Later, Savage writes:

Still, unlike Mr. Bush, Mr. Obama has not mentioned the Unitary Executive Theory, an expansive view of executive power that conflicts with Supreme Court precedent. His only invocation of his commander-in-chief authority was limited, taking aim at a requirement that he get permission from a military subordinate before taking an action.

We must be cautious not to make the assumption that because he does not use the phrase "unitary executive theory" that it is not there. The unitary executive theory, developed by attorneys in the Reagan administration, has been around now through four successive presidencies. It's tenets buried deeply within and throughout the entire Executive Branch. And it was rare for a president to refer to it specifically and deliberately until the previous Bush administration, which could not stop mentioning it whenever and wherever it had the chance. But because the president does not say it aloud does not mean it is not there. The Clinton administration never used the term, and yet it supported its key tenets as much as the Republicans before and after did.

So look at the facts: Obama has people in key places--for instance the DOJ--who are proponents of the theory (see for instance the work of Solicitor General Elena Kagan). He has not revoked an executive order born out of the Reagan administration empowering the OMB--and in particular the OIRA--to monitor the behavior (on behalf of the White House) of the executive branch agents. And he continues to use the signing statement to advance principles of departmentalism, which is consistent with a key tenet of the theory.

So while Obama may not be behaving like his predecessor, the evidence thus far confirms that he is behaving like a unitarian.

Read Between the Lines

Bob Egelko, a fine reporter with the San Francisco Chronicle, has an interesting blurb from last Friday's paper on a talk that our new Solicitor General, Elena Kagan, had at the annual meeting of judges and lawyers of the 9th Circuit Court of Appeals.

Kagan, a former Dean of Harvard Law School, held a job as a Clinton policy adviser and penned a telling article several years ago defending much of what many consider powers consistent with the unitary executive theory--though she did not come out and say as much.

On Friday, she was asked whether she would refuse defense of the law, as something each administration in the past has done at least on one occasion? Her answer: "I owe clear obligations to Congress...one of the most important parts of the solicitor general's job is to defend" the law. This would seem, as I suggested to Mr. Egelko, that perhaps Kagan used the talk to molify the anger amongst congressional Democrats over President Obama's recent signing statement. But there seems to be a bit of a contradiction, or perhaps a qualification, in Kagan's statement.

Over at dagblog, one blogger who also attended the conference provides a bit more detail. He also heard Kagan's praise of the legislative branch when asked about defending the law when the administration believes it to be unconstitutional:

Chief Judge Kozinski asked about the tension between Kagan's duties to the Executive branch, and to other agencies of the government. As she responded, her office owes an important obligation to the Legislative, in particular to defend the constitutionality of statutes, and the special historical relationship of the Solicitor General with the Supreme Court, redolent with such duties of candor that the SG is prone to confessions of error and other self-critical statements seldom passing the lips of lawyers. As she concluded this section of remarks, she made the point private lawyers will appreciate: her client is none of the branches or actors, but is instead the entire United States Government.

This appears to not only be a bone tossed in the direction of the Congress, but also a blunt statement where Kagan is making a break with the Bush Justice Department, which was so politicized that we are still dealing with the ramifications of actions taken years ago. Yet later in the proceedings, Ms. Kagan was asked about signing statements, and gave an answer that seemed to conflict with her first:

On to audience questions. Signing statements? Kagan initially picks at the question, because of the tension between her role as advocate for the Executive, acknowledging
that the topic is a hotly contested one. Finally, she answers frontally: when in conflict between the legislative goal of affirming the validity of legislation, and protection of the authority of the executive, the executive prevails in her office.

Whoa! Looking backwards, when was a solicitor general ordered to refuse defense of the law when the president believed it violated his personal politics and not the Constitution? In the cases that leap to my mind, never. FDR refused defense of a law demanding that three State Department officials be punished because the Congress did not like them--he believed that violated the Constitution's ban on bills of attainder and the Supreme Court agreed. Arguing on behalf of the law? Attorneys hired by the Congress. The Carter administration refused defense of any law it considered to be a legislative veto, which violated the Constitution's principles of bicameralism and presentment. And the Supreme Court agreed. Arguing on behalf of the law? Attorneys provided by the Congress. President Clinton refused defense of a law that kicked out of the military and pulled health care to any military personnel testing HIV-positive. Before that could be tested, the Congress overturned the law. The fact of the matter is that when the president refuses defense of the law--just like when he refuses enforcement--it is because he believes it violates a constitutional principle.

And I am sure Ms. Kagan knows it as well.

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.