Monday, February 25, 2008

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Which candidate will hoard executive power the least?

A common lament of the Bush administration has been it's relentless drive to accumulate more tools of power for the executive branch. One might assume that this problem would be corrected in a new administration -- particularly since the remaining candiates are based in the Senate, a body that has seen its influence over the executive branch on the wane in recent years.

It's a funny thing, however, about becoming president -- the prerogatives of power that look so monarchical from the outside don't look so bad on the inside.

So I find this Washington Post story by Michael Abramowitz to be particularly interesting:

Asked by my colleague Glenn Kessler whether he would ever consider issuing a signing statement as president, Sen. McCain was emphatic: "Never, never, never, never. If I disagree with a law that passed, I'll veto it."

The comment brought to life the question of whether President Bush's aggressive defense of presidential prerogatives will outlast his administration. Bush has been heavily criticized by lawmakers and others over his extensive use of signing statements, in which, rather than veto a bill, he makes it clear he will not be bound by what he considers unconstitutional provisions included by Congress.

All three of the leading presidential contenders have suggested they would take a different approach than Bush: What's striking is that McCain appears perhaps even more radical than his Democratic rivals in adopting a seemingly ironclad refusal to issue signing statements. If he truly were to follow that approach, it would represent a sharp break in presidential practice, according to lawyers on both sides of the ideological divide.

Responding to a questionnaire late last year by the Boston Globe, Sens. Barack Obama (D-Ill.) and Hillary Rodham Clinton (D-N.Y.) made clear their view that Bush has gone too far in issuing signing statements -- but that there are circumstances in which such statements are necessary.

"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," Obama answered. But, he added: "No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives."

In her own Globe questionnaire, Clinton made a similar point about legal issues. "I would only use signing statements in very rare instances to note and clarify confusing or contradictory provisions, including provisions that contradict the Constitution," she wrote. "My approach would be to work with Congress to eliminate or correct unconstitutional provisions before legislation is sent to my desk."

This is of a piece with what McCain said late last year.

posted by Dan on 02.25.08 at 10:50 AM


I'm reading Obama's statement a little differently than you are, I think. He seems to be wanting to reduce signing statements to what they were when Monroe introduced them: the presidential perogative to give his opinion of the law he just signed in written form as well as in a speech.

Clinton bothers me a bit, in that her statement implies that the only thing wrong with what Bush has been doing is the volume. She'll do the same thing, but only "rarely" (and from this I also presume she supports that signing statements should have some weight with the judiciary). This is unfortunately not very surprising.

McCain is, implausibly, claiming he'll never comment -- or at least not in that form.

But I'm not sure that these distinctions (or even lumping Obama and Clinton together as you seem to have done) really say anything useful about which candidate will hoard executive power less than others. All of them are pledging to at least not emulate the Bush excesses with signing statements, and once you get back to the Reagan through Clinton era signing statements that even Clinton (the most power-grabbing of the bunch) seems to want to emulate, the signing statements really aren't even towards the top of the list of presidential powers to hoard. Effectively changing funding allocations and appointments without proper congressional approval (just to name two examples) make for much nastier tools, and I don't think anyone is going to stop using those politically. Also, given the rapidity with which McCain changes his position on things, and that he doesn't seem to be above trying to get around his own McCain-Feingold restrictions, I have a hard time taking his promises as indicative of actual future behaviour.

posted by: Zed on 02.25.08 at 10:50 AM [permalink]

I see, so McCain swore he would "never, never" use signing statements.

Is that sort of like how he swore he never, never took any contributions from lobbyists, and he never, never did a favor for any lobbyist, and he never, never talked to the Times about their article before it ran, and he never, never spoke to Bill Paxson?

McCain just says things. He makes sweeping, categorical statements off the cuff, as a matter of course. It's not clear how much, or if, he thinks them through first, but the bottom line is they're not worth the paper they're not written on.

I agree that his remark on signing statements tells us something - it just doesn't tell us very much. He's opposed to them, at some level, and he probably wouldn't use them willy-nilly. Great. But this remark doesn't give me any confidence that he'd issue any fewer signing statements than Obama.

Also, I don't quite see how the link to the piece on the 12/20/07 Globe article shows that this is "of a piece" with McCain's earlier rhetoric. The article just said that McCain implied he's like the style of a publicly accessible president, with more connection to the public. That's not incompatible with the imperial presidence or the unitary executive - if you want to be Juan Peron, they might even go together.

posted by: The Navigator on 02.25.08 at 10:50 AM [permalink]

I'm not sure signing statements have any real force. An administration has other means to guide its policy in the drafting of regulations. So, I really do wonder whether the elimination of signing statements is going to be a good thing. Because, all this will do is cause an overt policy to go covert. Yes, the President should veto a bill he dislikes, as opposed to interpreting it out of existence. But, if Congress wants a bill to enforced a certain way, it should put the plain meaning of the bill into law, rather than rely on legislative history and other materials which are not voted on to setermine the meaning of a bill.

So, really, I don't care about Obama vs Hillary vs McCain's stance on signng statements. I hope that they will follow such laws as they choose to sign. And, if they do not choose to follow such lsws, I guess I don't mind a little advance warning via a statement. (It sure beats the alternative, such as something like the Iran-Contra affair...)

posted by: Appalled Moderate on 02.25.08 at 10:50 AM [permalink]

I'm reading Obama's statement a little differently than you are, I think. He seems to be wanting to reduce signing statements to what they were when Monroe introduced them: the presidential perogative to give his opinion of the law he just signed in written form as well as in a speech.

I'm sorry, I can't see how you can read "No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives," that way. A president doesn't need to have a signing statement in order to make a press release.

Surely instead he's making a distinction between "implausible or dubious constitutional objections" and "protect[ing] a president's constitutional prerogatives," which is worthy. In other words, it depends on whether or not he thinks that the Constitutional objections are good enough.

posted by: John Thacker on 02.25.08 at 10:50 AM [permalink]

What I get from McCain's quote is that he thinks Bush has signed bills he ought to have vetoed, avoiding political awkwardness and trying to have it both ways by making signing statements to preserve an option not to enforce a law if it proves inconvenient. He may also have in mind the origin of many of Bush's signing statements, which have come not out of Bush's office but out of his Vice President's.

It can't be pointed out too often that Bush administration practice in this and other areas is not just a little different from that of its predecessors; it is wildly different, and sometimes -- as in the enormous role assumed by the Vice President and his staff -- has no precedent in over 200 years of American history. With respect to executive power, Bush has made vast assertions of privilege while making scant use of long-established powers (like the veto) that other Presidents relied on.
He has also, incidentally, suffered most of the executive branch to labor under a suffocating burden of Congressional earmarks and restrictions on how appropriated funds can be used; he has sought greater executive authority for the White House, and select agencies engaged in activities of interest to the White House, not for the executive branch in general.

As I've written elsewhere I think it highly improbable that John McCain will be elected President. If he were to prove me wrong, I'd expect him to exercise executive authority vigorously but in a more traditional way than Bush has. I would not expect his Vice President to have anything near the influence in his administration that Cheney has had in Bush's.

I suspect any Democrat succeeding to the office next year would feel compelled to abandon many of Bush's practices simply because they were Bush's, as the quickest way of showing that the country is off to a fresh start. I suspect that Sen. Obama would be more conscientious about this than Sen. Clinton would be.

posted by: Zathras on 02.25.08 at 10:50 AM [permalink]

Zathras mentioned: Bush has signed bills he ought to have vetoed.

So true... like McCain-Feingold - though I suspect McCain hasn't had the realization that his brainchild was a terrible idea.

posted by: Sigivald on 02.25.08 at 10:50 AM [permalink]

The problem is not signing statements; it is the powers they claim. One could still assert those powers privately absent signing statements. In that sense, signing statements are actually helpful in creating transparency to where claims are being made. The analysis in the Post article therefore confuses the disease with a symtom.

posted by: Ben on 02.25.08 at 10:50 AM [permalink]

A blog relevant to the issue of executive power, well worth reading. This is a most troubling issue; by this, I am referring not only to signing statements, but the expansion of executive power in general, of which it is a part.


posted by: Joseph on 02.25.08 at 10:50 AM [permalink]

Signing statements became necessary after certain members of SCOTUS started citing so-called "legislative history" in order to creatively interpret the meaning of statutes.

"Legislative history" is the verbal and written record of congressional committee hearings, bills, and floor speeches that are not part of the text of the actual law.

Scalia has denounced the use of legislative history, calling it selective and arbitrary in order to achieve desired results.

The position of President Bush is that if judges are going to cite legislative history then he has the right to add to that history. It is comparatively harder to selectively ignore/cherry-pick a statement from the President.

Of course the best approach would be to ditch the use of legislative history altogether, so that signing statements would no longer be necessary for judicial interpretation and could revert to their Monroe-era use as simply a written speech.

posted by: Gideon7 on 02.25.08 at 10:50 AM [permalink]

Presidential signing statements have their purpose - I cited one in a memo to buttress an argument that was not very coherently put forward in the published House and Senate reports on a bill. Each branch of congress had published 40 page committee reports, but Ronald Reagan had made a one-page, very punchy and coherent signing statement that was miles better for my argument.

Now, if Reagan's signing statement was in direct contradiction of the text of the statute, I would never have used it, unless my goal was to assert confusion and muddle where it did not really exist. Which gets to the point - the form of a signing statement is not important, but whether the intent in making it is honest, or malicious and mischievous.

posted by: Xenos on 02.25.08 at 10:50 AM [permalink]

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