And Now Signing Statements

As I've said a few times, the Bush Administration so catastrophically fucked this country in seemingly limitless weighs, that the Obama Administration could be 90% on the side of the angels and still have lots of issues where they are wrong, creating an impression that they are not fulfilling the promise of change. But on the majority of issues, they are! And here's another one: ending the pernicious practice of signing statements that nullify settled Congressional law based on extreme theories of executive power, which was brought to truly epic levels under Bush and Cheney.

In recent years, there has been considerable public discussion and criticism of the use of signing statements to raise constitutional objections to statutory provisions. There is no doubt that the practice of issuing such statements can be abused. Constitutional signing statements should not be used to suggest that the President will disregard statutory requirements on the basis of policy disagreements. At the same time, such signing statements serve a legitimate function in our system, at least when based on well-founded constitutional objections. In appropriately limited circumstances, they represent an exercise of the President's constitutional obligation to take care that the laws be faithfully executed, and they promote a healthy dialogue between the executive branch and the Congress.

With these considerations in mind and based upon advice of the Department of Justice, I will issue signing statements to address constitutional concerns only when it is appropriate to do so as a means of discharging my constitutional responsibilities. In issuing signing statements, I shall adhere to the following principles:

The executive branch will take appropriate and timely steps, whenever practicable, to inform the Congress of its constitutional concerns about pending legislation. Such communication should facilitate the efforts of the executive branch and the Congress to work together to address these concerns during the legislative process, thus minimizing the number of occasions on which I am presented with an enrolled bill that may require a signing statement.

Because legislation enacted by the Congress comes with a presumption of constitutionality, I will strive to avoid the conclusion that any part of an enrolled bill is unconstitutional. In exercising my responsibility to determine whether a provision of an enrolled bill is unconstitutional, I will act with caution and restraint, based only on interpretations of the Constitution that are well-founded.

To promote transparency and accountability, I will ensure that signing statements identify my constitutional concerns about a statutory provision with sufficient specificity to make clear the nature and basis of the constitutional objection.

I will announce in signing statements that I will construe a statutory provision in a manner that avoids a constitutional problem only if that construction is a legitimate one.

Obama is essentially saying that he would raise constitutional issues BEFORE a law reached his desk. What the Bush Administration would do is negotiate a bill, and then when it passed nullify with the stroke of the pen any aspect that put a check on his executive power. Obama would give the Congress the benefit of the doubt and act with restraint in issuing signing statements, generally within the accepted practice of the previous 200-odd years. The statements typically would be used as a guideline for the Supreme Court to judge the constitutionality of a provision if it were litigated, as I understand it. That is a far cry from what essentially was a line-item veto, the way Bush used it. And the part where he writes that he would "constitutional concerns about a statutory provision with sufficient specificity to make clear the nature and basis of the constitutional objection" would be far different from the boilerplate that Bush used on over one hundred signing statements:

Bush’s postsigning statement declared that he would interpret many sections of the new law “in a manner consistent with the president’s constitutional authority to supervise the unitary executive branch.” In plain English, this means that many of the limits that Congress imposed on Bush’s power – and that he accepted when he took the money Congress appropriated – are null and void. Why? Because the president says so.

And best of all, instead of just looking forward, in this case he's looking backward.

To ensure that all signing statements previously issued are followed only when consistent with these principles, executive branch departments and agencies are directed to seek the advice of the Attorney General before relying on signing statements issued prior to the date of this memorandum as the basis for disregarding, or otherwise refusing to comply with, any provision of a statute.

In other words, Mr. Bush, your signing statements just went poof in the night.

Charlie Savage, who basically uncovered the practice of nullifying law through signing statements during the Bush Administration, has a writeup on this memorandum. And he says that Obama's perspective is consistent with his remarks on signing statements in a questionnaire Savage authored during the campaign.

McCain's Telecom Flip-Flop Breaks Into Big Media

McCain's flip-flop on radical executive power and illegal spying actually happened a few days ago, but I'm glad Charlie Savage elevated it by covering it in the New York Times.

A top adviser to Senator John McCain says Mr. McCain believes that President Bush’s program of wiretapping without warrants was lawful, a position that appears to bring him into closer alignment with the sweeping theories of executive authority pushed by the Bush administration legal team.

In a letter posted online by National Review this week, the adviser, Douglas Holtz-Eakin, said Mr. McCain believed that the Constitution gave Mr. Bush the power to authorize the National Security Agency to monitor Americans’ international phone calls and e-mail without warrants, despite a 1978 federal statute that required court oversight of surveillance.

Mr. McCain believes that “neither the administration nor the telecoms need apologize for actions that most people, except for the A.C.L.U. and trial lawyers, understand were constitutional and appropriate in the wake of the attacks on Sept. 11, 2001,” Mr. Holtz-Eakin wrote.

Those eeeeevil trial lawyers! And that darn ACLU, trying to protect the Bill of Rights and stand in the way of a President asserting the right to break the law and what-not...

I'm glad Savage got Sen. Obama to comment on McCain's position, too.

In an interview about his views on the limits of executive power with The Boston Globe six months ago, Mr. McCain strongly suggested that if he became the next commander in chief, he would consider himself obligated to obey a statute restricting what he did in national security matters [...]

Mr. McCain’s position, as outlined by Mr. Holtz-Eakin, was criticized by the campaign of his presumptive Democratic opponent in the presidential election, Senator Barack Obama of Illinois. Greg Craig, an Obama campaign adviser, said Wednesday that anyone reading Mr. McCain’s answers to The Globe and the more recent statement would be “totally confused” about “what Senator McCain thinks about what the Constitution means and what President Bush did.”

“American voters deserve to know which side of this flip-flop he’s on today, and what he would do as president,” Mr. Craig said in a phone interview.

It's absolutely a flip-flop and it's good to see it described as such. Of course, Sen. Obama has the opportunity to do more than criticize his opponent - he can go to the Democratic leadership right now and get them to stop the giveaway of immunity for telecoms for lawbreaking and massive new spying powers for the federal government.

As for McCain, aside from cozying up to conservatives, it's obvious why he's changed his position - all that luscious telecom money.

Republican presidential candidate John McCain has condemned the influence of "special interest lobbyists," yet dozens of lobbyists have political and financial ties to his presidential campaign — particularly from telecommunications companies, an industry he helps oversee in the Senate.

Of the 66 current or former lobbyists working for the Arizona senator or raising money for his presidential campaign, 23 have lobbied for telecommunications companies in the past decade, Senate lobbying disclosures show.

And they get what they pay for.

Laying Of Landmines

We've been talking quite a bit about how Bush-Cheney will leave little landmines inside the government, codifying their vision of radical executive power, a hollowed-out set of regulatory agencies and a civil service dedicated to a deeply conservative vision. In a fantastic new article, the very first by the best hire the New York Times has made in the past decade, Charlie Savage (on this one he was aided by Robert Pear), we get another example of this in the area of regulatory rules changes.

The Bush administration has told federal agencies that they have until June 1 to propose any new regulations, a move intended to avoid the rush of rules issued by previous administrations on their way out the door.

The White House has also declared that it will generally not allow agencies to issue any final regulations after Nov. 1, nearly three months before President Bush relinquishes power.

Sounds harmless, right? Why would this provoke any outcry?

While the White House called the deadlines “simply good government,” some legal specialists said the policy would ensure that rules the administration wanted to be part of Mr. Bush’s legacy would be less subject to being overturned by his successor. Moreover, they said, the deadlines could allow the administration to avoid thorny proposals that are likely to come up in the next few months, including environmental and safety rules that have been in the regulatory pipeline for years.

So there are two rationales at work here. The deadline of tomorrow would make it virtually impossible to impose rules changes that have been sorely needed for years and on which the Administration have been dragging their feet. Some examples include the Labor Department updating construction safeguards and standards that industry and labor have already agreed to. They may have prevented crane accidents like the one we saw in New York City yesterday. Another example is a needed Department of Agriculture rule to put more stringent requirements on genetically modified crops.

The flip side to this is that getting rules changes completed outside the 60-day window for regulations to take effect after issuance will stop the future President's ability to postpone or revise them. And since official secrecy is a hallmark of the Administration, even finding out what these rules changes are will be a tortuous process for a new chief executive.

And what are some of those rules?

Rick Melberth, the director of regulatory policy for OMB Watch, a nonpartisan government watchdog group, predicted that the administration, in keeping with its longstanding skepticism about regulation, would make it a priority to complete rules that relax regulations on industrial pollution and other burdens on business.

Mr. Melberth also predicted that the administration would be willing to invoke the exception for “extraordinary circumstances” to allow rules that give businesses more flexibility than Mr. Bush’s successor might, especially if the next president is a Democrat.

“They get to define emergency,” Mr. Melberth said.

“On other things, they could do ‘Sorry, we can’t do anything on this’ ” because of the deadline, he added.

This is about the White House implementing and locking in their agenda to the bitter end, along the same principles of deregulation and laissez-faire capitalism that has put the entire economy in turmoil and put lives at risk from enivronmental decay and overall health and safety. The only figure outside the Administration quoted in the article praising the plan is a vice president of the US Chamber of Commerce. Just so you know where this is headed.

There's nothing all that insidious about this - the President can make rules changes whenever he wants. But the modus operandi for the final months of the Administration is clear: preserve as much of their agenda as possible, codify it, make sure the successor can't change it, and make sure there are enough malefactors installed throughout the government so that a Democratic President can be endlessly undermined. That and covering their own asses through things like immunity legislation in FISA is really all they're concerned about.

Signing Statements Are Back, But With A Twist

Attached to the military appropriations bill signed by the President last month included the first signing statement since the new Congress came into power, and the details of it should cheer those who think that the Democratic takeover have achieved absolutely nothing. Because this is a kinder and gentler signing statement, a less unitary executive, who just allowed through a provision against permanent bases in Iraq which a Democratic successor would surely be pressured to enforce.

Pulitzer Prize winner Charlie Savage has the report.

In the statement, which the White House filed in the Federal Register on Nov. 13 but which initially attracted little attention, Bush challenged several requirements to provide information to Congress.

For example, one law Bush targeted requires him to give oversight committees notice before transferring US military equipment to United Nations peacekeepers.

Bush also challenged a new law that limits his ability to transfer funds lawmakers approved for one purpose to start a different program, as well as a law requiring him to keep in place an existing command structure for the Navy's Pacific fleet.

Obviously, it's distressing that Bush has reverted to the practice of trying to nullify Congressionally-mandated statutes. But look at the language that he has used to reject these portions of the law.

"The Act contains certain provisions identical to those found in prior bills passed by the Congress that might be construed to be inconsistent with my Constitutional responsibilities," Bush's statement says.

"To avoid such potential infirmities, I will interpret and construe such provisions in the same manner as I have previously stated in regard to those provisions."

This is not the "I am the commander in chief and the unitary executive and what I say goes" President of years past. This is a meeker statement, simply claiming that there are inconsistencies in the record between these and other statutes. This seems to me like something fully within the purview of the judiciary to determine which language takes precedent. And in addition, it's far less confrontational and far easier to be challenged.

And this is the real surprise:

In a further sign that the White House adopted a muted tone, the new signing statement also said nothing about two higher-profile provisions in the bill that limit presidential power: One law prohibits the military from using foreign intelligence information that was collected illegally, and the other forbids expending funds to establish permanent US military bases in Iraq.

As lawmakers drafted the bill earlier this year, the White House warned Congress that the illegal intelligence and Iraq-base provisions "impermissibly" infringed "on the president's constitutional authority" over national security and foreign affairs.

The complaints about constraining executive power are gone. The reign of President as emperor, picking and choosing the laws he likes, are gone.

Now, this is not to say that the President has suddenly decided to follow the Constitution. If he wants to appropriate funds toward building permanent bases in Iraq, he very well might. He probably doesn't have to, since most of them are already built. But the statute is now official US law. Same with preventing the military from using "illegally collected" intelligence information. And so it will not only be applied to this President, but most importantly the NEXT President.

The Democratic Congress has obviously been something of a disappointment. But you have to put this in perspective. Change in Washington moves at a glacial pace. Despite this, they have passed the first minimum wage increase in a decade, the largest student loan reform maybe ever, implemented the 9/11 Commission recommendations, instituted needed ethics reforms, and more. This coming week they will take up an energy bill that will raise fuel efficiency by 40% and add a renewable energy standard for electricity.

Now, we're seeing that the focus on Constitutional issues has actually backed up the most radical Administration in history from further destruction. We've seen that in the resignation of all the government officials engaged in some of the most horrific practices. We've seen that in the reinstitution of Senate oversight in the US Attorney process. And now, we've seen it in the tempering of signing statements. Maybe the dark legacy of increasing executive power will be stalled, after all.

This is in no way redeems the Democratic Congress for all their missteps; if anything, the man most responsible for this backtrack on signing statements is the author Charlie Savage, who did a great deal to put this in public view. But it should be a reminder that elections actually do have consequences.

Charlie Savage on the takeover of American democracy

In his remarks, Savage commented that we have seen through the years that Constitutional balance is always challenged in wartime. But he noted that the Bush imperial project began long before 9/11, though certainly the invoking of national security and the war on terror greased the wheels quite a bit. In a meeting of the Office of Legal Counsel right after the first inauguration, Alberto Gonzales specifically told his legal team to search for instances to expand executive power. And pulling the strings behind all of this was a man whose formative years in Washington saw the contraction of that power, and who vowed ever since then to restore it.

The invoking of inherent executive powers in the name of national security and war dates back to John Adams and the Alien & Sedition Acts. But in the late 1940s, Harry Truman invoked national security and the state secrets privilege in several instances, including starting the Korean War without a full Congressional declaration, and attempting to commandeer the steel mills for the war effort. This view of inherent powers, in particular surveillance powers which were inevitably used to spy on political opponents, continued through the age of Nixon and Watergate, after which Congress reasserted itself and put all sorts of restrictions on Presidential power. From the view of the 33 year-old White House Chief of Staff in the Ford Administration, Dick Cheney, it looked like a siege (Ford's legal counsel, by the way, was a guy named Antonin Scalia). The undercurrent of his subsequent career, both in the House of Representatives and as Secretary of Defense, was arguing for more executive power. His view was that the Founders got it wrong, that the Republic would be more secure if less people were involved in the decision-making regarding national security and war. In this argument, Cheney turns the entire system of government that has served us well for 230 years, which was designed to prevent concentrated power and remain suspicious of any governmental entity that would hold such power, on its ear. In seeking less power for Congress, even as a Congressman (see his minority report on the Iran-Contra affair, which argued that the real lawbreakers were Congressional investigators for performing oversight in the first place), Cheney essentially saw that the nation is more likely to take aggressive action if a single President is in control of national security matters, rather than a coalition of more diverse voices like the Congress. This view is also counter to traditional conservatism and their typical suspicion of government.

The unitary executive theory was a product of the Reagan legal team, and two of the staffers on that team would go on to be appointed by George W. Bush to the US Supreme Court, John Roberts and Samuel Alito. Originally the unitary executive was about Presidential control over executive agencies - after 9/11, it naturally moved into matters of national security. The new argument, conceived by John Yoo in a series of famous documents while working for the Office of Legal Counsel, was that Congress has no limiting effect on how the President can defend the nation. One of the reasons that Yoo, a midlevel staffer, was able to wield so much power in his own right was that there was no confirmed head of the Office of Legal Counsel until December of 2001, no mitigating force on the decision-makers in the White House. Throughout the time between 9/11 and then, the inmates were running the asylum. And inmate Yoo was telling the Cheney Adminstration what they wanted to hear. Yoo was using tortured and circular logic to argue a revisionist view of the Constitution, claiming that the Founders DID want a king, only an American one who was elected every four years. In one memo which had 25 footnotes, 8 of them referred to Yoo's own writing, so he essentially couldn't find anyone to approvingly cite this theory other than himself.

A lot of this is familiar; centralizing power over career bureaucracies, nullifying Congressional statutes through signing statements, asserting wide surveillance powers that even deeply conservative Justice Department officials were willing to resign over, Guantanamo, the destruction of habeas corpus, invoking state secrets at every opportunity, the Cheney energy task force meetings, pulling out of the ABM treaty, etc., etc. But Savage put it all together in a cogent argument that saw the expansion of Presidential power as not only pervasive, but easily the most successful product of Bush's two terms as President. The Administration used ingenious ways to achieve these goals; their first invocation of executive privilege was in reference to documents from a Clinton-era scandal that Congress wanted to see. It looked like this honorable gesture, Bush defending Clinton, but at root was this idea of preserving Presidential secrecy, and the precedent was made.

During the question and answer period, I asked Savage that, given that a good bit of his reporting for which he won a Pulitzer came out of things in the public record, like signing statements and court documents and such, why did he appear to be the only journalist in Washington who was connecting the dots and seeing the importance of this radical interpretation of executive power? He kind of declined to answer that question, but later on, he mentioned that he didn't arrive in DC until October of 2003. So he missed the entire post-9/11, pre-Iraq War hysteria when the traditional media became supine and afraid. The reporting in those two years was not confrontational and not rigorous. And I believe it had a lasting effect on those who were writing during that time. Because Savage was removed from that, I believe he had a completely perspective on this Administration, and wasn't dulled by the fog of fear. He said, "I'd like to think I wouldn't have been changed from having my wife and family in Washington at that time when everyone thought it was a continuing target, but I don't know."

It should be said that Savage is incredibly pessimistic about rolling back these powers (so am I). One reason is that Presidential precedent is so often cited by future Presidents as a rationale for whatever new policy they want to undertake; how many times in the past few years have we heard about Lincoln suspending habeas corpus during the Civil War? Presidential prerogative is, as Justice Jackson called it in the Korematsu opinion, a "loaded weapon" that can be pulled out at any time. So future Presidents will have an entirely new toolkit of expanded powers, cracks in the Constitutional system that can be exploited over and over again.

The other main problem is that our courts do not offer advisory opinions. And so if nobody can show standing for a case, it cannot be brought. And so most of the national security issues, which are after all secrets for the most part (we don't even fully know the extent of them), will never have the chance to be taken before a court. In effect, the Office of Legal Counsel acts like an internal Supreme Court on the executive branch, deciding if they are in compliance with executing the laws of the nation. And so you really have the executive branch enforcing the laws against itself. And that is a recipe for real disaster.

It was a fascinating evening and should be an even more fascinating book, which I am eager to read.