Watching the webcast of the Judiciary Committee hearing on Presidential signing statements brings up a broader point about the Bush Administration’s approach to Article II powers. It seems to me that the Bush Administration’s approach to Article II powers has two features: (1) an unusually broad view of Article II powers and (2) a refusal to explain in detail the Administration’s broad view of Article II powers. Most criticism of the Administration’s approach has focused on (1). I’m no expert on these issues, but my sense is that, from a structural perspective, the real difficulty is the combination of (1) and (2).
Imagine the Administration changed course on (2), and was very explicit about its interpretation of Article II. If that were the case, Congress could respond. Congress would know exactly how the Executive branch is interpreting the law, and would be able to respond accordingly. I believe John Yoo has conceded that Congress would be free to do this even under a broad reading of Article II; for example, Congress could cut funding to the Administration’s efforts that go beyond Congress’s prohibitions. The details of this may be tricky, but the basic idea is sound: When the feedback loop exists, Constitutional checks and balances can adjust to the President’s vision of Article II powers. Think of it as the Coase Theorem of separation of powers.
The problem with Presidential signing statements in their current practice is that they announce that the President will follow a constitutional vision that no one outside the Executive Branch understands. Take the McCain Amendment. Here is the Presidential signing statement that accompanied it:
The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.
Does anyone actually know what that means? We can read John Yoo’s scholarship and take some guesses about what it might mean, but my sense is that for the most part we don’t really know. And that’s the difficulty: Less that the Administration takes a strong view of Article II than that it won’t disclose precisely what that strong view is. Without the feedback loop, it’s hard for the other branches to respond.
Anyway, this is an oversimplified take on a complex topic that is outside my area of expertise. But I thought I would flag the issue, offer a tentative take, and open it up for comments. As always, civil and respectiful comments only.
I agree that the real problem involves both 1) and 2) as Orin has labeled these issues. The doctrines expressed in the signing statements — such as a reference without explanation to “the unitary executive branch” — are not only vague, they lack a reference to a commonly agreed-upon definition.
For example, Samuel Alito in his confirmation testimony clearly distanced himself from the definition of “unitary executive” commonly associated with Yoo’s theories today.
However, that is not the entire problem. I would add that Problem Issue 3) is the absence of judicial review.
Notably, when Alito as an OLC attorney during the Reagan administration proposed an expanded use of presidential signing statements, he did so in the context of providing the president’s view as part of legislative history to by considered eventually by the courts. But the salient thing about George W. Bush’s view of executive power is that he asserts the right unilaterally to interpret statutes according to his own view of the Constitution, but then avoids judicial review at all costs.
This is a very good point. Compare, for example, an illustrative Clinton signing statement, on the Telecommunications Act of 1996:
I do object to the provision in the Act concerning the transmittal of abortion-related speech and information. Current law, 18 U.S.C. 1462, prohibits transmittal of this information by certain means, and the Act would extend that law to cover transmittal by interactive computer services. The Department of Justice has advised me of its long-standing policy that this and related abortion provisions in current law are unconstitutional and will not be enforced because they violate the First Amendment. The Department has reviewed this provision of S. 652 and advises me that it provides no basis for altering that policy. Therefore, the Department will continue to decline to enforce that provision of current law, amended by this legislation, as applied to abortion-related speech.
I’m not really sure what the check is on a refusal to enforce the law, short of impeachment; it’s not something that can be defunded. But if there’s going to be a political remedy, as an absolute minimum, it has to be crystal-clear which parts of the law the President intends to ignore. That doesn’t happen if the signing statement is a bunch of unitary executive mumbo-jumbo.
It’s also worth noting the significant difference between a signing statement that declines to enforce the law against private parties, like the Clinton example above, and a signing statement that indicates the President and those under his command intend to personally violate the law, which creates a far trickier constitutional situation.
Orin, the problem with setting out the precise contours of the Persident’s Article II powers is that it supplies our adversaries with a roadmap of our capabilities. In calling for the release of this crucially sensitive national security information, you are no better than those traitors at the New York Times who hide behind a mere footnote in our great and abiding Constitution.
Cassandra, Are you saying that separation of powers questions need to be resolved by what Arabs might think of us. While I would concede that many people think that torture is a legitimate means to carry on a war, are you saying that by condemning torture, Congress somehow helped our enemies by trying to prevent the president (who does have an unrestricted power to pardon) from torturing Arabs?
Or are you joking? If you are (with the New York Times article reference), then you have just manipulated my blood pressure in an unkind manner.
Walter Dellinger recently gave a wonderful speech on Abraham Lincoln which, if I understood him correctly, credited Lincoln with a more muscular view of Executive power than other administrations but a greater transparency and willingness to submit that view to the other branches and the public at large for evaluation.
Dan Froomkin makes much the same point as Prof. Kerr in the course of a lengthy posting on this topic.
I think that one needs to distinguish between the administration’s argument regarding Article II generally, and Article II in the context of National Security – which the DOJ layed out pretty comprehensively in their white paper regarding the NSA wiretapping program.
[OK Comments: MJ, if you think DOJ laid out its view in the White Paper, can you explain what the signing statement means in the context of the McCain Amendment? In particular, can you give the factual circumstsnces in which the Executive Branch is not bound by the McCain Amendment under Article II?]
I’d like to call your attention to an article on the subject recently published in the New York Review of Books. Although it’s not without a clear slant, I think you’ll find it thought provoking.
http://www.nybooks.com/articles/19092
The author there asserts the following:
“The concept of a unitary executive holds that the executive branch can overrule the courts and Congress on the basis of the president’s own interpretations of the Constitution, in effect overturning Marbury v. Madison (1803), which established the principle of judicial review, and the constitutional concept of checks and balances.”
If that is an accurate reflection of the Bush policy, perhaps that explains the lack of Prof. Kerr’s point 2.
In other words, the administration feels it has no constitutional obligation to explain itself.
This is a rather maximalist view and I’m not trying to assert here that this is what the administration actually believes. But perhaps it has some explanatory power?
Observer: I can’t recall anyone who embraces the “unitary executive” theory yet defines it differently than did Alito. In other words, I don’t know of anyone who subscribes to that theory and who believes that it covers anything but the President’s control over the executive branch.
Indeed, there is confusion over the definition of the term, but that confusion owes to the theories critics who, in their eagerness to either sully the theory or to use its catchy name to attack inherent-power arguments, have conflated the two arguments.
So let’s not dissuade use of the term “unitary executive” solely on the grounds that the theories critics have confused the issue; let’s not give critics a heckler’s veto of sorts.
But it is interesting that Tim would cite Dellinger as a critic of Presidential disregard for Congress. After all, while running OLC Dellinger penned memos supporting the President’s refusal to defend or enforce unconstitutional statutes, as well as the propriety of signing statements:
“We believe that such statements may on appropriate occasions perform useful and legally significant functions. These functions include … informing Congress and the public that the Executive believes that a particular provision would be unconstitutional in certain of its applications, or that it is unconstitutional on its face, and that the provision will not be given effect by the Executive Branch to the extent that such enforcement would create an unconstitutional condition.”
Adam:
If the word ‘unitary’ means no more that what Justice Alito said at his confirmation hearings, then it strikes me as utterly superfluous in the McCain signing statement. Does the President intend a meaningless term?
I undertstand that it is widely believed among Guantanamo prisoners that treatment has worsened after passage of this statute. Perhaps the signing statement was enough of a signal that notwithstanding any statutory text, following orders would not be punished.
Adam: agreed re: the unitary executive theory. It is much misconstrued by those who wish it to be the enemy of all things good and right. I thought Alito’s answers on the subject during his hearing were well put.
Observer: care to link us to a source (a Yoo article, for instance, since you seem to believe he has a different view on this topic) construing the UE as something beyond an issue of control?
RE: the larger point — I”d say Orin has it spot on. There are obvious policy problems with the executive keeping its legal interpretations secret (absent a compelling national security need to temporarily do so). If it holds such views in good faith, the executive should feel comfortable publicly defending them and engaging Congress and the Judiciary in the discussion.
So let me see if I understand Orin correctly: Orin doesn’t have a problem with the use of signing statements, Orin’s problem with signing statements is that they are not long or clear enough? So if Bush just made longer, clearer signing statements, he’d be OK with them?
What would Orin say, then, if Bush simply refused to make ANY signing statements? Wouldn’t that put us all in a worse situation, in Orin’s analysis?
It seems to me irrelevant one way or the other, though. The President can announce that he might sometime in the future decline to enforce a law he believe unconstitutional… or the President can be silent about it. Either way, the issue isn’t ripe until the President actually refuses to enforce a law. It is at that time that the courts and/or Congress can get involved.
[OK Comments: A.S., you misunderstand the debate: enforcement of the law is not the issue. The issue isn't what powers Congress gives the Executive, and what the Executive chooses to exercise in its discretion. Rather, the question is what powers Congress chooses to deny the Excecutive, and what limitations on its power the Executive believes it has to follow. As I understand things, the Executive Branch is saying that it doesn't think Congress can limit its power in some contexts under Article II, but it won't disclose how it is making those decisions or what those contexts are.]
Charley: perhaps the reference is intended to signify that the President maintains that he has the authority to order executive officers not to comply with the law, to the extent he views it as unconstitutional? Thus, to the degree that the Act order executive branch employees to act in certain ways, the President maintains the authority to prevent them from doing so to the extent that he believes the act unconstitutional in its application.
Just a thought. Obviously, it would be of great help if the executive would clearly spell out what it means by this.
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You could say: the problem is not the signing statement. The problem is the likely existence of a classified OLC memo in which the President tells his subordinates to disobey the law based on his commander in chief power (or interprets the law’s requirements out of existence in bad faith, or both).
I don’t think doing this openly is all right, mind you–”Congress would be free to act” is not sufficient. This Congress will not investigate the President, will not subpoena the President, and certainly will not consider impeaching the President, for partisan reasons. The “burden of inertia” matters, and checks and balances and the executive obligation to comply with the law affect more people than Congress.
But the classification certainly makes it worse. I mean, those DOJ memos on the NSA–at this point they aren’t going to reveal anything about the program we don’t already know. What they are going to reveal is an embarrassing/scary argument for the commander-in-chief power–and so that constitutional law theory is classified. We also do not know whether they think the commander-in-chief override applies to the anti-torture statute or the McCain Amendment. It’s just ridiculous.
marghlar,
In response to your question above, I thing the differences between Alioto and Yoo were well illustrated in a NYT article by Adam Liptak, Jan. 19, 2006, during Alito’s hearings, in which Liptak quoted from an interview with Yoo:
Notably, Judge Alito endorsed a 1952 concurring opinion by Justice Robert H. Jackson rejecting President Harry S. Truman’s assertion that he had the inherent constitutional authority to seize steel mills during the Korean War. The opinion, in Youngstown Sheet and Tube Company v. Sawyer, set out a three-part sliding scale for considering clashes between presidential power and Congressional authority. …
In an interview Thursday, Professor Yoo said the balancing called for by the Jackson concurrence did not apply to the surveillance program.
”The Jackson concurrence applies to domestic matters which are outside the theater of combat,” he said. The surveillance program, by contrast, is partly international, he said, and the theater of combat after the Sept. 11 attacks encompasses the United States.
Noah Feldman, a law professor at New York University, said the differing interpretations of the applicability of the Jackson concurrence were significant.
”It’s very striking,” Professor Feldman said, ”that both Judge Alito and Chief Justice Roberts said they would apply Justice Jackson’s concurrence in the steel seizure case, because it reflects a view of presidential power that is not unbounded and is not the strongest version of the unitary executive theory. If you were truly to follow Youngstown, you can’t embrace the strongest version of the unitary executive theory.”
Judge Alito endorsed a version of the unitary executive theory in a 2000 speech to the Federalist Society, a conservative legal group. The theory can mean, in its weaker form, that the president has full authority over the executive branch. In its stronger form, the theory means that there are areas of executive power into which Congress and the courts are powerless to intrude.
Professor Yoo said that what he called ”the robust version” of the theory could conclusively answer the legal controversy over the surveillance program. ”If gathering intelligence about the enemy is executive, then it can’t be taken away” by Congress or the courts, he said.
At the hearings, Judge Alito embraced the weaker version. For Judge Alito, said Douglas W. Kmiec, a law professor at Pepperdine who served in the Justice Department in the Reagan administration, the unitary executive theory ”goes more to the direction of fully executive subordinates than any type of claim of executive supremacy, which Alito has rightly denied.”
If anything, Professor Kmiec continued, Judge Alito ”has an understanding of executive power that is so well within the mainstream that Alexander Hamilton might think it timid.”
With all due respect, I think Orin is simply wrong that “enforcement of the law is not the issue.” He should read Walter Dellinger’s OLC memo, which explicitly contradicts that:
link (emphasis added)
Orin says that “As I understand things, the Executive Branch is saying that it doesn’t think Congress can limit its power in some contexts under Article II”. What this means, to use Dellinger’s language is that the President is unwilling to enforce compliance by an executive branch agency with a provision of a law as a result of his determination that such provision is unconstitutional. Note, too, that Dellinger’s example for such proposition is where a court upheld a President’s determination (as stated in a signing statement) that a Congressionally-enacted limitation on the President’s constitutional authority was without force or effect. That’s exactly what we are talking about in case of Bush’s signing statements.
To take an example, Bush is saying in the signing statement Orin quotes (on detainee) that the detainee law is a Congressionally-enacted limitation on the President’s constitutional authority that is unconstitutional (similar to the law Dellinger cites), and therefore without force or effect. Accordingly, Bush will not enforce compliance with such law by executive agencies.
[OK Comments: A.S., I don't quite follow your argument. Is your point just semantics?]
I second the value of Dan Froomkin’s discussion, which rises some of the concerns here: the basic lack of clarity, even if you support additional executive power.
There are many ways to attack the “problem” (I think there is one) at hand, one is the lack of openness. But, secrecy, partly since it adds to executive power, is part of what is being demanded.
So, worrying about it is somewhat circular, no?
One other point with respect to Orin’s post. Why does he have a problem with signing statements, when the laws that a particular President signs are but a fraction of the laws on the books. Neither Orin’s point (1) or point (2) have anything explicit to do with signing statements – they apply equally to every single law on the books. Is Orin’s point that President’s should go through all of the laws to determine and explain in detail to the public in what circumstances that President might decline to enforce each of them? That can’t possibly be right. If so, then why Orin’s seeming requirement that the President explain in detail when he might not enforce just that subset of the laws on the books that such President actually signed?
It seems to me that the signing statements a President makes aren’t a detriment to the other branches or to the public, but rather are a help, since we at least get some foreshadowing of what might be to come. But to say that such statements are not sufficient explanatory seems to me to be looking a gift horse in the mouth.
[OK Comments: A.S., why do you conclude that I have a problem with signing statements per se? You simply assume that, and then criticize me for taking a position I don't take on the ground that it's inconsistent with a position I do take. It's a rather weird form of argument.]
CriticalO:
The problem is that this is being filtered through a reporter, and that tends to distort what a scholar is saying. It does make it appear that Yoo is saying the UE theory controls the content of the executive power, but that makes little sense. I know that he certainly holds a broad view of executive power under other doctrines, such as inherent executive authority or the commander-in-chief power, which are far more plausible sources of argument. Can you point me to anything he’s written that suggests that the Unitary Executive Theory involves the content of executive power, and not merely its location? Because such a reading is contrary to what I’ve read and heard to date.
I’d also suggest that even if Yoo does believe what that article makes it sound as if he believes, that is a minority position among scholars who accept the theory.
Here’s a standard description of the theory that encapsulates my understanding of it, from Calabresi et al:
Scholarly debate has focused on whether the Constitution created a “unitary executive” in which all executive authority is centralized in the president, rather than the “executive by committee” that existed under the Articles of Confederation…. [There are] three devices generally viewed as necessary to any theory of the unitary executive: the 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.
Yoo (not that one), Calabresi and Colangelo, The Unitary Executive in the Modern Era, 90 Iowa L. Rev. 601 (2005).
A search for articles by Yoo dealing with the theory turns up nothing. I wonder if this is a case of the media conflating legal theories that they do not understand very well.
Sorry — I addressed that post to the wrong person — I meant Just an Observer.
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