The Problem With President Obama's Signing Statement
Since Democrats and others (including me) spent a great deal of time criticizing President Bush for issuing a recordbreaking number of signing statements, it seems necessary to consider President Obama's signing statement issued in relation to the recently enacted Omnibus Spending Bill. TPM has the relevant passage:
Numerous provisions of the legislation purport to condition the authority of officers to spend or reallocate funds on the approval of congressional committees. These are impermissible forms of legislative aggrandizement in the execution of the laws other than by enactment of statutes. . . . Yet another provision requires the Secretary of the Treasury to accede to all requests of a Board of Trustees that contains congressional representatives. The Secretary shall treat such requests as nonbinding.
I think the signing statement is defensible in one aspect and indefensible in another. It appears to be asserting that the provisions in question are a form of legislative veto which the Supreme Court deemed unconstitutional in the case INS v. Chadha. In one aspect, this claim seems well established and moored to clear Supreme Court precedent. In another, I think it is unmoored and indefensible. I'll explain why I think so on the flip.
In Chadha, the Supreme Court held that:
The congressional veto provision in § 244(c)(2) [of the Immigration statute] is unconstitutional.
(a) The prescription for legislative action in Art. I, § 1 -- requiring all legislative powers to be vested in a Congress consisting of a Senate and a House of Representatives -- and § 7 -- requiring every bill passed by the House and Senate, before becoming law, to be presented to the President, and, if he disapproves, to be repassed by two-thirds of the Senate and House -- represents the Framers' decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered procedure. This procedure is an integral part of the constitutional design for the separation of powers.
(b) Here, the action taken by the House pursuant to § 244(c)(2) was essentially legislative in purpose and effect, and thus was subject to the procedural requirements of Art. I, § 7, for legislative action: passage by a majority of both Houses and presentation to the President. The one-House veto operated to overrule the Attorney General and mandate Chadha's deportation. The veto's legislative character is confirmed by the character of the congressional action it supplants; i.e., absent the veto provision of § 244(c)(2), neither the House nor the Senate, or both acting together, could effectively require the Attorney General to deport an alien once the Attorney General, in the exercise of legislatively delegated authority, had determined that the alien should remain in the United States. Without the veto provision, this could have been achieved only by legislation requiring deportation. A veto by one House under § 244(c)(2) cannot be justified as an attempt at amending the standards set out in § 244(a)(1), or as a repeal of § 244 as applied to Chadha. The nature of the decision implemented by the one-House veto further manifests its legislative character. Congress must abide by its delegation of authority to the Attorney General until that delegation is legislatively altered or revoked. Finally, the veto's legislative character is confirmed by the fact that, when the Framers intended to authorize either House of Congress to act alone and outside of its prescribed bicameral legislative role, they narrowly and precisely defined the procedure for such action in the Constitution.
When President Obama wrote that "[n]umerous provisions of the legislation purport to condition the authority of officers to spend or reallocate funds on the approval of congressional committees [and thus] are impermissible forms of legislative aggrandizement in the execution of the laws other than by enactment of statutes," he seems to be on firm ground under Chadha. (Of course, knowing the specific provisions President Obama is referring would be helpful. I have not found any reference to the specific provisions. In addition, a form of opinion letter from the Office of Legal Counsel supporting the President's assertions would also be important here. Dare I say some transparency would be nice here.)
On the issue of the "provision [that] requires the Secretary of the Treasury to accede to all requests of a Board of Trustees that contains congressional representatives[,]" I am not convinced that this is a acceptable usage of the signing statement. Perhaps there is another Supreme Court precedent on point. I assume the theory the President is asserting here treats the "Board of Trustees" mentioned therein as a mere doppleganger for the Congress as a whole and thus the provision violates the presentment clause.
Perhaps President Obama is relying on the Supreme Court decision in Bowsher v. Synar. In Bowsher, the Court held that:
The structure of the Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess. Our decision in INS v. Chadha, 462 U. S. 919 (1983), supports this conclusion. In Chadha, we struck down a one-House "legislative veto" provision by which each House of Congress retained the power to reverse a decision Congress had expressly authorized the Attorney General to make . . To permit an officer controlled by Congress to execute the laws would be, in essence, to permit a congressional veto. Congress could simply remove, or threaten to remove, an officer for executing the laws in any fashion found to be unsatisfactory to Congress. This kind of congressional control over the execution of the laws, Chadha makes clear, is constitutionally impermissible.
I presume that President Obama's theory here is that the Board of Trustees is akin to the Comptroller General in that it is under the control of the Congress. While the theory is persuasive, I think this part of the signing statement is very troubling. The idea, at least to me, is that the problem with signing statements was the President's bypassing of the constitutionally structured method of making laws AND reviewing their legality and constitutionality. Without a clearcut Supreme Court precedent on point, it seems to me the President is the one usurping here.
Consider the Supreme Court decision declaring the Line Item Veto Act of 1996 unconstitutional in Clinton v. New York:
The Act's cancellation procedures violate the Presentment Clause.
(a) The Act empowers the President to cancel an "item of new direct spending" such as § 4722(c) of the Balanced Budget Act and a "limited tax benefit" such as § 968 of the Taxpayer Relief Act, § 691(a), specifying that such cancellation prevents a provision "from having legal force or effect," §§ 691e(4)(B)-(C). Thus, in both legal and practical effect, the Presidential actions at issue have amended two Acts of Congress by repealing a portion of each. Statutory repeals must conform with Art. I, INS v. Chadha, 462 U. S. 919, 954, but there is no constitutional authorization for the President to amend or repeal. Under the Presentment Clause, after a bill has passed both Houses, but "before it become[s] a Law," it must be presented to the President, who "shall sign it" if he approves it, but "return it," i. e., "veto" it, if he does not. There are important differences between such a "return" and cancellation under the Act: The constitutional return is of the entire bill and takes place before it becomes law, whereas the statutory cancellation occurs after the bill becomes law and affects it only in part. There are powerful reasons for construing the constitutional silence on the profoundly important subject of Presidential repeals as equivalent to an express prohibition. The Article I procedures governing statutory enactment were the product of the great debates and compromises that produced the Constitution itself. Familiar historical materials provide abundant support for the conclusion that the power to enact statutes may only "be exercised in accord with a single, finely wrought and exhaustively considered, procedure." Chadha, 462 U. S., at 951. What has emerged in the present cases, however, are not the product of the "finely wrought" procedure that the Framers designed, but truncated versions of two bills that passed both Houses.
President Obama's signing statement and declared intention to not follow certain provisions of the Omnibus Spending bill are a de facto line item veto. I would argue that the very fact that instead of relying on clear Supreme Court precedent, as the President does in the first part of his signing statement, and instead of being a declaration of what the law may mean in a hypothetical scenario, as many generalized assertions in signing statements are, the specificity of and the stated and express declaration to NOT abide by the law make this signing statement, in this procedural aspect, as bad or worse than President Bush's signing statements.
When signing statements are merely blather with no practical or promised effect, then I doubt there is a real constitutional question. But when a signing statement, as here, instructs a Cabinet officer, in this case, the Treasury Secretary, to disobey a law, then we have a problem.
If Treasury Secretary Geithner does in fact disobey the law at some point, I believe we will have a case or controversy for judicial determination.
Again, the view of the Office of Legal Counsel on this matter would be extremely helpful and in keeping with the promise of transparency promised by the Obama Administration.
Speaking for me only
|< Madoff and Bail Pending Sentencing | Crackpots At The WaPo >|