(DV) Salzberg: Signing Statements and Executive Power

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A Sign of the Times
Signing Statements and Executive Power
by Chris Salzberg
www.dissidentvoice.org
October 24, 2006

Several months ago in a widely quoted article, veteran Boston Globe reporter Charlie Savage detailed pronouncements by the Bush administration, recorded in so-called "signing statements," claiming "the authority to disobey more than 750 laws" passed by Congress, purportedly due to conflicts with the president's interpretation of the Constitution. [1] A major public debate, previously relegated to experts of American constitutional law, subsequently erupted across the country and internationally over legal implications to privacy rights, civil liberty laws, definitions of torture, limits on presidential power, and much else besides. The nonpartisan Congressional Research Service (CRS), in a report drawn up for lawmakers, warned last month that "the sheer number of challenges contained in the signing statements . . . indicate[s] that the current Administration is using this presidential instrument . . . to aggressively assert presidential prerogatives" in an attempt to "inure Congress, as well as others, to the belief that the president in fact possesses expansive and exclusive powers" [2], a conclusion echoed by legal and political commentators. [3, 4] A resolution issued one month earlier by the American Bar Association (ABA) went significantly further, denouncing

"as contrary to the rule of law and our constitutional system of separation of powers, the issuance of presidential statements that claim the authority or state the intention to disregard or decline to enforce all or part of a law the President has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress." [5]

Notwithstanding such protests, the controversial practice continues unabated, 39 statutes of the Department of Defense and Department of Homeland Security Appropriations Acts challenged in statements signed earlier this month bringing the total number of laws bypassed by the Bush administration over the one thousand mark [6, 7]; all other presidents combined, in more than 200 years of history, issued less than 600 such challenges.

The recent statements offer a revealing sample of issues at stake in the debate. In language by now routine, Bush asserts "the President's exclusive constitutional authority, as head of the unitary executive branch and as Commander in Chief," to withhold national security information, conduct foreign affairs, participate in international negotiations, bypass affirmative action laws, and disregard provisions that encroach in any way on his authority. Responding to qualifications demanded of the new director of the Federal Emergency Management Agency (FEMA), Bush observes that such limitations "rule out a large portion of those persons best qualified by experience and knowledge to fill the office," and as such may be ignored. [7] In Section 503(c)(4)(iii) of the Act, Congress advises that "the Administrator [of FEMA] may make such recommendations to Congress relating to emergency management as the Administrator considers appropriate" [8], advice Bush declares he will construe

"in a manner consistent with the constitutional authority of the President to require the opinions of heads of departments and to supervise the unitary executive branch. Accordingly, the affected department and agency shall ensure that any reports or recommendations submitted to the Congress are subjected to appropriate executive branch review and approval before submission." [7]

Challenges to direct reporting requirements imposed by Congress highlight the underlying structural basis upon which executive influence extends and broadens its scope. Other examples notably include objections to congressional oversight provisions of the Patriot Act, denial of whistle-blower protections for government employees, claims to exclusive jurisdiction over investigations by the Inspector General for the Coalition Provisional Authority in Iraq, and refusals to release information on matters deemed to potentially "impair" deliberative processes of the executive branch. [5] As noted in the CRS report,

"it seems apparent that signing statements objecting to direct reporting requirements represent an attempt to sensitize executive personnel to the wishes of the President and to assert a broad conception of presidential power in the face of congressional enactments." [2]

Revelations that Vice President Dick Cheney and his advisor David Addington regularly screen pieces of legislation before they ever reach the president, pressuring White House and Justice Department lawyers to carefully flag provisions that limit such power, further testify to the increasing concentration and reach of executive control. [9]

Yet whereas the signing statement itself -- the mechanism condemned as "contrary to the rule of law" by the ABA -- would appear, in the battle to limit such influence, to be a natural target, the body of historical evidence in fact points elsewhere. Laurence Tribe, one of the leading experts on U.S. constitutional law, argues that opposing such statements "barks up a constitutionally barren tree," explaining that:

"Challenging the statements themselves . . . does not represent even a plausible way of contesting this president's manifestly unreviewable decision to sign rather than veto any particular law, however cynical that decision might be and however unconvincing his explanations are." [10]

Neil Kinkopf, constitutional law professor and a former lawyer in the U.S. Office of Legal Counsel (OLC), takes a similar position, emphasizing that, "[t]here is nothing inherently wrong with or controversial about signing statements." [11] The fact that the ABA conclusion is false, Law Professors Curtis Bradley and Eric Posner insist, is moreover "well known to constitutional law scholars and, one assumes, to the current and former law school deans on the [ABA] task force." [12]

Aside from its questionable legal basis, the strategy of attacking the signing statement itself fails to consider the array of other "power tools" historically employed by presidents in the pursuit of similar unilateral policy objectives. The executive order, a policy instrument first used by President Washington in 1789, rests on equally murky constitutional foundations. As do signing statements, executive orders enable the executive branch to monopolize control over subordinate agencies, often serving to effectively override congressional legislation. Phillip Cooper writes that "agencies have been trapped between the obligations imposed on them by statute . . . and the pressures by the White House, enforced through various executive orders, to delay or even rescind rules" [13], notable targets including "EPA rulemaking proposals regarding nuclear waste disposal and asbestos production and use, and OSHA rulemaking proposals regarding short-term exposure limits and warning labels for hazardous substances in the workplace." [14] It does not help that, much the way signing statements cite sweeping constitutional powers, "executive orders are frequently and increasingly issued under an ambiguous claim of authority instead of clear statement of basis and purpose as required in administrative law," casting the entire policy "in a posture of doubtful legitimacy." [15]

Although nominally confined to organizations subordinate to the executive, executive orders in reality have far-reaching effects. A poignant example concerns executive order 12807 directed to the Coast Guard issued by the first Bush administration (and later extended by Clinton) in the year after the 1991 US-backed coup in Haiti. As Paul Farmer describes it: "with an estimated 1,500 Haitians already dead in six weeks and military repression churning full throttle, the administration of George Bush announced that it was resuming forced repatriation" [16, p. 221], erecting a "floating Berlin Wall" with which it intercepted some 34,000 refugees, the majority of which were detained in a conveniently positioned rat-infested detention camp in Guantanamo. [17] Cooper observes: "The Haitian refugee order may have been issued to the Coast Guard, but it most assuredly affected the Haitians, the domestic situation in that island nation, and the communities of South Florida." [13]

And yet, the executive order is only the most visible example in a broad set of presidential policy instruments. National security directives (NSDs), famously used by Reagan to direct the CIA to support and recruit Contra rebels in attempts to topple the democratically elected government in Nicaragua, are so highly classified that even lists of orders by title or topic are unavailable. Executive agreements, a unilateral instrument of international diplomacy whose number has increased to vastly outnumber formal treaties, enable the president to independently sign deals involving areas such as trade, environmental standards, and immigration policy. Should public or congressional opposition mount against a particular policy tool, presidents can simply choose a new label unspecified in the Federal Register Act -- as many have done -- and cloak the entire operation in obscurity. Ultimately, presidential powers as such do not flow purely, or even primarily, from formally prescribed rules, arising instead, William Howell writes, "from specific institutional advantages within the office of the presidency itself: its structure, resources, and location in the system of separated powers" [18, p. 16]. Any serious response to the use of signing statements must address the historical roots of these advantages.

A number of roots converge in a formerly little-known ideology called "Unitary Executive Theory," recently elevated to fame as the topic of 82 signing statements issued during the first term of the current Bush administration [19], the first administration to explicitly mention the term. [20] As Christopher Kelly describes: "The model of a Unitary Executive argues that the president, as a coordinate branch of government, may independently interpret the Constitution," the president being exclusively accountable, it is claimed, for how laws are executed. [21, p. 12] Although proponents trace it back much further, as an ideology, the "unitary executive" originates in political transformations of the past thirty years, emerging in response to attacks on the presidency by Congress and the wider public following the the Vietnam quagmire and the scandal of Watergate. Kelly writes:

"The unitary executive has mostly been championed by the founding members of the 'Federalist Society,' a group of conservative lawyers who nearly all worked in the Nixon, Ford, and Reagan White Houses and who understand the type of political climate the president operated in and understand what it took to succeed." [20]

Indeed, the academics who have written most extensively in defense of the unitary executive are also former members of the Reagan legal team, a group responsible for realizing a strategy, first envisioned by the Nixon administration, aimed at consolidating administrative control over government agencies. Steven Calabresi, a key member of this team and outspoken advocate of executive power, in paper co-authored with Christopher Yoo and Anthony Colangelo, identifies three devices that define this strategy:

"[T]he president’s power to remove subordinate policy-making officials at will, the president’s power to direct the manner in which subordinate officials exercise discretionary executive power, and the president’s power to veto or nullify such officials’ exercises of discretionary executive power." [22]

The defining problem of unitary executive theory is to find ways to justify, constitutionally, legally, and morally, the sweeping set of unilateral powers necessary to carry out this vision. Two clauses in Article II of the Constitution were identified early on as potentially holding the key to such a justification: the "Oath" clause, in which the President swears to "preserve, protect, and defend the Constitution of the United States," and the "Take Care" clause, which states that "he shall take care that the laws be faithfully executed." [23] Taken as a whole, the ambiguous language of Article II defines "a role that is sweeping in its potential," giving rise to incentives for "venture constitutionalism," a term Ryan Barilleaux uses to describe "the presidential conundrum - that the Constitution itself encourages presidents to test the limits of the Constitution." [24] Terry Moe and William Howell explain:

"[T]he Constitution's incomplete contract sets up a governing structure that virtually invites presidential imperialism. Presidents, especially in modern times, are motivated to seek power. And because the Constitution does not say precisely what the proper boundaries of their power are, and because their hold on the executive functions of government gives them pivotal advantages in the political struggle, they have strong incentives to push for expanded authority by moving into gray areas of the law, asserting their rights, and exercising them." [25]

The ambiguous language of the Constitution is not accidental, but born out of disagreements between its Founders: Madison, who favored limiting authority of the president, and Hamilton, who pushed to expand it. Hamilton largely won this battle, but the opportunities his choice of language afforded for advancing executive interests were only truly capitalized on in the 1980s. Edwin Meese, at the time Reagan's attorney general, was one of the first to recognize the importance of recording the president's views on congressional legislation as a means to this end, remarking that "constitutional interpretation is not the business of the Court only, but also properly the business of all branches of government." [20, p. 11] In a memo dated February 5, 1986, then-Justice Department lawyer Samuel Alito, serving under Meese, outlined a strategy for "enhanced use of Presidential signing statements," foreseeing that such use would "increase the power of the Executive to shape the law." [26] The same year, Meese entered into an agreement to include the statements in the publication of U.S. Code Congressional and Administrative News, as Cooper writes,

"in an effort to create a kind of body of precedent with which to support future uses of the signing statements to bolster presidential claims to authority or to limit Congress so that, after a time, what are in fact broad claims to power appear to be more or less routine legal formulae." [19]

As a tool for exploiting ambiguity in the Constitution, such precedents take on particular significance in light of the contradictory nature of statutory law, specifically insofar as what the "Take Care" clause actually means. Moe and Howell point out that "[w]hile it may seem that the burgeoning corpus of legislative requirements would tie the president up in knots, the aggregate impact is actually liberating," due to the fact that the laws are "interdependent and conflicting in ways that the individual statues do not recognize," so that "what they require of him is ambiguous." [25] In a general sense, by resolving this ambiguity, "the accumulation of precedents (whether legal or political) tends to work in favor of broader presidential authority." [24] Signing statements, in providing a means by which to establish and promulgate such precedents, play a key role in this process.

In their report, one of the central resolutions of the American Bar Association is that signing statements stand in opposition to "our constitutional system of separation of powers," namely, "[t]he original intent of the framers . . . to require the President to either sign or veto a bill presented by Congress in its entirety." [5] Yet it is here that the ABA report seriously misrepresents the reality of the U.S. political system and its historical record. As Moe and Howell clarify:

"Any notion that Congress makes the laws and that the president's job is to execute them -- to follow orders, in effect -- overlooks the essence of separation of powers. The president is an authority in his own right, coequal to Congress, and not subordinate to it." [25]

By invoking separation of powers, the ABA ironically takes a position that coincides with proponents of exclusive presidential power. In contrast to those who view the Constitution as fundamentally requiring a certain level of authority of one branch over the other, this group seeks to divide power into separate, independent spheres of influence. Kinkopf elaborates, noting that:

"Ostensibly, [exclusivity] underscores the power of Congress as well as the president, but it actually exalts the president over Congress. In practice, the exclusivity view would make action across federal branches difficult and would impede ambitious federal programs and force Americans to rely on the private sector to provide necessities like health care, a clean environment, and safe products and workplaces." [27]

An appreciation of the extreme lopsidedness of a truly exclusive "separation of powers" demands an awareness of the organizational apparatus of control, built up over many decades, that buttresses executive power and its drive for corporate profits. This includes, among other things, an understanding of the policy tools, executive institutions, and governing ideology that support current attempts to increase presidential authority. It requires intricate knowledge of the network of political players, largely carry-overs from the Reagan years, who developed the strategy necessary to develop this apparatus. And it compels an acceptance that the traditional bulwarks against unilateral control, Congress and the Judiciary, are ineffective, subject to manipulation, and in many ways sympathetic to presidential ambitions.

Given this state of affairs, public awareness becomes a deciding factor in determining the extent to which the "unitary executive" ideology -- repeatedly expounded in signing statements -- is put into practice. A narrow focus on the statements themselves, however, obscures the fact that it is ultimately the actions of this government, and not its sweeping claims, that will carry consequences.

Chris Salzberg is a graduate student at the University of Tokyo, Japan.