Tuesday, January 09, 2007

Signing Statements May Define Battle Over Congressional Oversight

At a time when the arrival of a Democratic Congress, and President Bush's appointment of a Nixon/Reagan veteran as White House counsel, have raised intense speculation about an imminent constitutional showdown regarding oversight and access to information, a survey of White House signing statements reveals that the president has attempted to wall off Congress from information regarding a wide array of subjects, straying far from issues of national security.

Mr. Bush has famously used his signing statements to claim executive leeway on legislation concerning issues of national security, such as the McCain Detainee Amendment and, as revealed by the New York Daily News, even the ability to open mail without a warrant.

The Daily News story emerged only this year, despite the fact that the signing statement was posted online in December, with apparently no public reaction.

Now, a review of other statements posted online throughout the Bush presidency, shows that Mr. Bush has for years been staking a claim to unprecedented levels of secrecy on issues that have nothing to do with national security, ranging from Medicare to motor-vehicle taxation.

"National security" has long been a favorite refuge of presidents seeking to withhold information from Congress and the public. But a search of dozens of signing statements posted online at WhiteHouse.gov reveals that Mr. Bush repeatedly claims the right to withhold information not just for reasons of national security, but for virtually any reason at all, including:

- Impairing foreign relations (here, here and here),

- Impairing the performance of the Executive's constitutional duties (here, here, here, here, here, here and here),

- Impairing the deliberative processes of the Executive (here, here, here, here, here, here, here and here).
It should be noted that virtually any information that reflects poorly on the White House could be interpreted as potentially impairing foreign relations. Similarly, any information that reflects poorly on the White House could be construed to impair the president's political heft and thus his ability to do his job. Likewise, damaging information about White House decision-making could impair the deliberative process.

Critics of the White House argue that some information should be revealed precisely so that the White House will pay a price for it, even--or especially--if it impinges upon presidential power. In constitutional terms, impairing the Executive branch is supposed to be one of the central functions of the Legislative branch.

One signing statement even rejects a requirement for information on the basis that disclosing such information might "impair the performance of the Executive's constitutional duties, including the conduct of investigations and prosecutions to take care that the laws be faithfully executed." In other words, the president declined to faithfully execute the law on the grounds it might prevent him from faithfully executing the law.

In fact, even as he has signed bill after bill into law, Mr. Bush has frequently attempted to rewrite portions of those laws that require officials in the executive branch to convey information to Congress or to congressional appointees. Some of the issues on which Mr. Bush has rewritten U.S. laws to block congressional attempts at oversight include:

- U.S. trade, including a provision of the signing statement that converts recognition of human-rights standards from a legislated mandate to a presidential prerogative.

- Prosecutorial decision-making at the Dept. of Justice.

- Justice Department activities related to the constitutionality of laws.

- Crime statistics.

- Investigations of alleged crimes or fraud related to specific National Transportation Safety Board projects.

- Medicare.

- Transportation issues, including motor-vehicle taxation and infrastructure financing.

- Proposed mission changes for agencies within the Department of Veterans Affairs.

- Taiwan's participation in the World Health Organization, the congressional reporting on which Mr. Bush unilaterally reduces from a requirement to "a matter of comity."

- NASA plans, recommendations and budget requests.

Virtually every signing statement was issued regarding laws passed by a Republican Congress. For that reason, Mr. Bush's claim to have the power to rewrite the law has rarely been challenged.

Now that Democrats are in power and vowing to subject administration activities of the past few years to rigorous scrutiny, it remains to be seen which and how many of these signing statements will be challenged, either in court or with new legislation. Furthermore, the Democrats can be expected to send Mr. Bush plenty of new legislation of their own.

It's not yet clear whether Democrats will attempt either to inoculate their bills against signing statements with specific provisions addressing and precluding them, or to rescue their bills by challenging any signing statements in court after the fact.

In either case, both past and future signing statements on the presidential prerogative to withhold information specifically called for by law can be expected to figure prominently at the center of the coming battle over congressional oversight of the executive branch.


Peter said...

Signing statements may define battle..."

Possibly. I think it's unlikely though. I haven't seen a great deal of expert opinion on this but what I have seen I would summarize as, signing statements are pretty much meaningless. That is, they carry absolutely no force of law, have no legal weight behind them.

That said, IF it became known that the WH actually acted in accordance with some signing statement in contradiction to its respective law, that would set the stage for a constitutional crisis. One the Resident would almost surely lose, say those eperts. But even then, it could be a huge distraction and take a looong time to come to any conclusion.

I doubt any evidence of such action by the admin. will ever come to light. But hey, I'd love to see it happen. C'mon George, open my mail, g'won g'head, open it already. And please do it in front of a camera.

Anonymous said...

The president is in charge of enforcing the law, subject to his oath to "faithfully execute the laws of the U.S." The signing statements, I think, are an attempt to argue that he is faithfully executing them, even though he is not, based on the actual text of the laws. So, I don't think they are meaningless. If someone opens your mail, he would just refuse to prosecute (and most likely fire whatever prosecutor attempted to prosecute).

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