Unitary Executive And The Presidential Signing Statement

Chapter One Introduction When Governor George W. Bush was campaigning for the presidency, he appeared on the ABC Sunday morning talk show, “This Week with Sam Donaldson and Cokie Roberts.” This was in early January 2000, and he was being asked a number of questions about how a President George W. Bush would govern. One question, from George Will, was aimed at campaign finance reform. After asking Governor Bush whether he thought the president had a constitutional duty to independently interpret the Constitution, which Governor Bush agreed he could, Will asked him if he would veto McCain-Feingold or Shays-Meehan, the two campaign finance reform bills in Congress because they unconstitutionally infringed upon free speech. Governor Bush did not hesitate in telling Will that he would veto the bill due to its infringement upon free speech.1 Flash forward to March 27, 2002, and President George W. Bush is fixing his signature onto the “Bipartisan Campaign Finance Reform Bill of 2002,”2 and noting that, while not perfect, it will “improve the current system for financing federal campaigns.”3 George Will noted the “stealthy” manner in which he signed the bill, and then noted with bitter disdain that “…[It] is his job to defend the Constitution…” and to those who filed suit to block it, Will noted that “… someone has to do

Chapter One--Introduction

his [President’s] job when he will not.”4 Byron York, writing for the “National Review,” noted that Bush could have used “something called the signing statement, which presidents have used in the past to take public positions on bills about which they have reservations, but have chosen to sign.” York argued when President Reagan signed GrammRudman deficit reduction legislation, he publicly disapproved of unconstitutional provisions which the Supreme Court later agreed with in the decision, Bowsher v Synar.5 By scurrying out of town without a public statement, the president in effect cut himself off from that avenue.6 The president did issue a signing statement, only one that was not done in a formal bill signing ceremony which York referred to. When President Bush issued his signing statement, he noted that there were significant constitutional problems with the bill. Bush argued:

Certain provisions present serious constitutional concerns. In particular, H.R. 2356 goes farther than I originally proposed by preventing all individuals, not just unions and corporations, from making donations to political parties in connection with Federal elections. I believe individual freedom to participate in elections should be expanded, not diminished; and when individual freedoms are restricted, questions arise under the First Amendment. I also have reservations about the constitutionality of the broad ban on issue advertising, which restrains the speech of a 2

Chapter One--Introduction

wide variety of groups on issues of public import in the months closest to an election. I expect that the courts will resolve these legitimate legal questions as appropriate under the law.7 The fact that President Bush gave lukewarm support to the bill (he did not contact McCain personally upon signing it) and his past statements on the matter clearly suggested that the president was not in favor of the bill. The language of the signing statement may help the president rectify his signature on the bill with his public statements on the matter. True, he did sign it—president’s are often confronted with bills, whether it be appropriations bills or those with tremendous public support ( as was the case with the bill he signed) that they reluctantly sign. However, this does not render the president without options. In this case, President Bush could instruct the Justice Department to not defend the law against court challenges, as suggested by Constitutional Law Scholars Akhil Reed Amar and Vikram David Amar.8 This would enable President Bush to both support the popular campaign finance reform legislation and hold true to his earlier promise of not infringing upon First Amendment free speech rights. Whether the President does this remains to be seen. This dissertation project is the first systematic study of the presidential signing statement. It represents an interest that I was drawn to early in graduate school when I finished a research paper on 3

Chapter One--Introduction

the presidential signing statement, and concluded that they were important and that there was very little actually written about them. As I will discuss in much greater detail in Chapter Three, the presidential signing statement really is nothing more than the statement a president makes after signing a bill into law. But this research would not be interesting if it were nothing more than that. As I will demonstrate, it is what the president does with the signing statement that makes this an area of interest to those studying presidential power. The president can use the signing statement to reward constituents, mobilize public opinion toward his preferred policies or against his political opponents, decline to defend or enforce sections of the bill he finds to be constitutionally objectionable, reward political constituents by making political declarations regarding the supposed constitutional veracity of a section of a bill, and even move a section of law closer to his preferred policy. In this dissertation project, I will attempt to answer the questions of what is a signing statement and why have they been used, particularly in a systematic attempt, in the course of the last thirty years? In doing so, I will explain what the signing statement is, how it has developed over time, trends in its use, and why it has become a valuable political tool to presidents from Reagan through Clinton. The focus on the Reagan through the Clinton presidency will 4

Chapter One--Introduction

also allow me to introduce a theory that explains the systematic use of the signing statement. It will also allow me to suggest that this theory might be useful in explaining a number of creative executive actions that have taken place over the previous thirty years. Actions that dig into Article Two and help justify actions that previously have gone unnoticed—actions such as executive orders, presidential proclamations, presidential directives, and presidential memoranda, to name a few. I will employ a variety of research techniques that will help me to answer my research questions. First I will rely upon original source documents such as The Weekly Compilation of Presidential Documents, The Congressional Record, The Public Papers of the Presidency, Congressional hearings, a number of papers held at the Ronald Reagan Presidential Library, The Federal Register, The United States Code, Congressional and Administrative News, The Public Papers and Addresses of Franklin Delano Roosevelt, and A Compilation of the Messages and Papers of the Presidents 1789-1897 to name just a few. I will use these original source documents to help me mine all the signing statements issued to date, to categorize the signing statements, and to help answer why particular administrations used the signing statement the way in which it did—particularly if the

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Chapter One--Introduction

administration was innovative, such as the case of the Reagan administration discussed in Chapter Four. I will use elite interviews to help me fill in the blanks where the original source documents fail to help me answer my particular questions. Since the signing statement is such a unique device, it is my hope that talking to individuals in the Reagan, Bush, and Clinton administrations will help tell the story of why the administration turned to the signing statement, or why did a particular administration choose to be innovative when it did. I think that, as the following chapters will show, using the elite interview greatly enhanced my understanding of the signing statement. Where appropriate, I will employ case studies to illustrate a particular point, either in the use of the signing statement or in the development of my theory. The case study is useful in helping to answer the how or why questions, and will be ideal in later chapters when I need to focus on key events in a particular administration. This will give the reader a context in which the signing statement takes place. I will also use very rudimentary quantitative tools to help me assess what trends, if any, exist on the use of the signing statement. It is not enough to simply describe over time what the signing statement is. To better square all sides of the signing statement, 6

Chapter One--Introduction

quantitative tools can help me discover whether events such as an election or such things as presidential popularity impact the use of the signing statement. This proved valuable in confirming hunches in the data that showed particular trends in the use over time or a particular spike in the use of the signing statement within one particular administration. From this I can offer some general conclusions. I will also rely on a number of secondary sources, including, but not limited to, law journals, newspapers, scholarly books and articles, and web sources, particularly the Lexis-Nexis databases, which are a valuable source for finding a variety of different types of information. The law journals are important for two key reasons. First, nearly all discussions of the signing statement have taken place in the law journals. And second, the theory that I am employing is a theory that was born in the law journals by a number of law professors who had left the Reagan and Bush administrations. The problem with the law journals, and what makes this work important, is that the concentration on the legal aspect of the signing statement completely misses the political importance of their use. In this sense, law journals have a valuable, but limited importance. The outline of the books is as follows. This chapter will essentially design the research that lays ahead. I have offered the

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Chapter One--Introduction

research questions, the methodology, and then a sketch of the chapters that will follow. In the second chapter, I will focus on the theory that I am using to help explain why the signing statement is used and why it is important. This will be a theory that is called the “Unitary Executive.” The Unitary Executive rests upon two core principles—the principle of coordinancy and the principle of accountability. Coordinancy gives the president an independent constitutional right to not defend or enforce laws that he deems to be unconstitutional. This constitutional right emerges from the “Oath” Clause of the Constitution, which obligates the president to uphold and defend the Constitution and the laws of the United States. Accountability derives from the president’s position as the only nationally elected figure in the United States. Thus, by taking care that the “laws are faithfully executed,” the president is constitutionally obligated to tell inferior officers how to interpret and execute the laws that he signs. This leads to a more political role for both the Office of Management and Budget and the Department of Justice, beginning in the 1970s, but accelerating from the Reagan administration through the Clinton administration. In Chapter Three, I will spend a great deal of time explaining what the signing statement is, where it originated, how many have

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Chapter One--Introduction

been issued through the end of the Clinton administration, and what sort of external political events seem to affect their use. In Chapter Four, I will look at the important role that the Reagan administration played both in developing the Unitary Executive and developing the signing statement. The Reagan administration used two important Executive Orders to gain control over the administrative process, giving to the OMB, in particularly the OIRA, a highly political role to insure that the administrative agencies were enforcing legislation in the manner that the Reagan administration wanted it enforced. Up to this point, a problem for presidents was the bureaucratic agencies often times dragging their feet or using administrative discretion to execute legislation in a manner consistent with the wishes of the Congress or varying interest groups that had “captured” the agency. The Reagan administration sought to control the bureaucracy, which it was generally successful. Additionally, the Reagan Justice Department was very aggressive in defending the president’s prerogatives against, what it accurately perceived, was a hostile Congress. The Reagan administration had a number of high profile fights with the Congress, but in the end, it had managed to advance the signing statement into a powerful tool to control the president’s policy wishes as well as to protect presidential prerogatives. 9

Chapter One--Introduction

By the end of Reagan’s term, it had managed to get the signing statement added to the “Legislative History” section of the United States Code Congressional and Administrative News. In a series of interviews with people in the Reagan administration, I am able to confirm that this was done for strategic reasons that are predicted by the theory of the Unitary Executive—control over policy and protection of prerogatives. In Chapter Five, I look at how the Bush administration continued the evolution of the Unitary Executive and the signing statement. The Bush administration, via the Council on Competitiveness, was highly judicious in controlling policy that favored the interests of those who supported the Bush administration and the Bush Justice Department was very aggressive in defending the president’s prerogatives. In both instances, the signing statement plays a key role. Further, the Bush administration builds on the legacy of the Reagan administration by using the signing statement to point to an alternative legislative history when the administration would lose a political battle in the Congress. I will use a couple of case studies to illustrate how the Bush administration made effective use of the signing statement. In Chapter Six, which is the last substantive chapter, I will show that even though there was a change in administrations from a Republican to a Democrat, the notion of a Unitary Executive and the 10

Chapter One--Introduction

signing statement had become institutionalized so that the Clinton administration, while differing politically from the Reagan and Bush administrations, continued the work of centralizing policy and protecting presidential prerogatives. President Clinton will issue an Executive Order that overrides the Reagan administration while simultaneously incorporating most of those previous Executive Orders. In addition, President Clinton expands his reach over the bureaucracy to incorporate the independent regulatory agencies, something not accomplished by the Reagan or Bush administrations. Additionally, President Clinton’s Justice Department begins the administration by defending both the right of the president to unilaterally decide not to enforce or defend laws deemed to be unconstitutional as well as the right of the president to use the signing statement to do this. In Chapter Seven, I will briefly describe how the George W. Bush administration has continued to develop the Unitary Executive, paying close attention to administrative centralization and the protection of his prerogatives as the Unitary Executive predicts will happen. Further, the current administration has continued to rely on the signing statement to carry out the two principles of the Unitary Executive.

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Chapter One--Introduction

I will then discuss what the findings and the implications are of this dissertation as well as what future directions will need to be explored to continue to develop both the theory and the power described in this dissertation.

1

Will1, George. “This Week with Sam Donaldson and Cokie Roberts.” ABC News. January 23, 2000. Lexis-Nexis online (www.nexis.com). Newsgroup File, All. July 10, 2002. 2 Public Law 107-155 (2002). 3 Bush, George W. “Statement on Signing the Bipartisan Campaign Finance Reform Bill of 2002.”Weekly Compilation of Presidential Documents. March 27, 2002. pg. 517. 4 Will2, George. “Reforming’ Free Speech.” The Washington Post. March 31, 2002. pg. B02. 5 478 U.S. 714 (1986). 6 York, Byron. “The Man Who Won't Veto: One Power that George W. Bush Eschews. National Review. Vol. LIV, No. 11. June 17, 2002. Lexis-Nexis online (www.nexis.com). Newsgroup File, All. July 10, 2002. 7 Bush, George. “Statement on Signing the Bipartisan Campaign Finance Reform Bill of 2002.”Weekly Compilation of Presidential Documents. March 27, 2002. pg. 517. 8 Amar, Akhil Reed and Vikram David Amar. “Breaking Constitutional Faith: President Bush and Campaign Finance Reform.” Findlaw’s Legal Commentary. www. writ.findlaw.com/amar/20020405.html. Accessed June 18, 2002

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Chapter Two—The Unitary Executive Chapter Two The Unitary Executive On October 21, 1986, then-Attorney General Edwin Meese III gave a speech at a Tulane colloquium on the Constitution that sent a shock wave among legal and political scholars across the country. Meese, in a speech that clarified, in his view, the distinction between the Constitution and constitutional law, argued, “constitutional interpretation is not the business of the Court only, but also properly the business of all branches of government.”1 One commentator painted a scenario in which the police kicked in the door of his home in an unreasonable search and seizure. When he objected that the Constitution, per Supreme Court interpretation of the Fourth Amendment prevents such action, the police threw down a copy of Meese’s speech and declared: “"My department wasn't a party in any of those cases; therefore, they don't apply.”2 Meese, many argued, was speaking on behalf of an administration that had complete disregard for the Constitution. Even though the Meese speech was perceived to be startling, his argument was hardly new. President Thomas Jefferson’s Attorney General argued that the president could ignore Supreme Court

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2

Meese, Edwin III. “Perspective on the Authoritativeness of Supreme Court Decision: The Law of the Constitution.” Tulane Law Review. 61:979. April, 1987. pg.986. Labunski, Richard. “The ‘Dangerous’ Views of Ed Meese.” The Chicago Tribune. November 6, 1986. pg. C27.

Chapter Two—The Unitary Executive opinions if he believed that the opinions were erroneous.3 President Lincoln flouted an order by Chief Justice Taney which demanded the release of a prisoner that the Court viewed was improperly jailed.

As

Joel Goldstein notes, “modern presidents have refused to abide by legislative vetoes, the War Powers Act, the Federal Advisory Committee Act, the Competition in Contracting Act (discussed below), and the Foreign Relations Authorization Act.”4Ed Meese was criticized for stating a position of executive power that has been present throughout the entire history of the Republic and had been building steadily since the Nixon administration—that the president, as a coordinate branch of government, has the constitutional duty to not enforce laws it determines to be unconstitutional and to interpret laws as a matter of administrative guidance. The argument that supports this notion is often referred to as the Unitary Executive and those supporting it have been dubbed “unitarians.”5 The model of a Unitary Executive argues that the president, as a coordinate branch of government, may independently interpret the Constitution. Further, the president is the only nationally 3

McGinnis, John O. “Introduction.” Cardozo Law Review. 15:1-2. October, 1993. pp.21-22. 4 Goldstein, Joel K. “The Presidency and the Rule of Law: Some Preliminary Explorations.” Saint Louis University Law Journal. 43:791. Summer, 1999. pg. 809. 5 See for example Mayer, Kenneth. With the Stroke of a Pen: Executive Orders and Presidential Power. New Jersey: Princeton University Press. 2001. pg.38;

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Chapter Two—The Unitary Executive elected official which makes him accountable for how laws are executed. Therefore, the president is best situated to coordinate agency activities and by virtue of his accountability and central position, he can bring energy to the administrative process that agency officials cannot muster by themselves.6 Thus, as I will show, the president independently interprets laws deemed to be unconstitutional as a matter of coordinancy and directs agency officials in the interpretation of laws because he is politically accountable as chief executive officer. As I noted above, the argument for a Unitary Executive is not new. Those who argue on its behalf trace its roots back to the origins of the Constitution and the writings in the Federalist Papers. Professor Steven Calabresi argues that the Federalist Papers advanced three arguments in favor of a unitary executive—energy, accountability, and separation of powers.7 Drawing on the arguments put forth by Alexander Hamilton, Calabresi argues that the design of a single executive versus a plurality “fosters energy” because it leads to “decision, activity, secrecy, and dispatch.”8 A Unitary Executive was essential both to the protection of the community as well as to the Froomkin, A. Michael. “The Imperial Presidency’s New Vestments.” Northwestern University Law Review. 88:1346. Summer 1994. 6 Davies, Susan. “Congressional Encroachment on Executive Branch Communications.” University of Chicago Law Review. 57:1297. Fall, 1990. pg. 1301. 7 Calabresia, Steven G. “Some Normative Arguments for the Unitary Executive.” Arkansas Law Review. 48:23, 1995.

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Chapter Two—The Unitary Executive “steady administration of the laws.”9 Accountability reinforced the need for energy, according to Calabresi. Again, arguing that the Founders chose a single executive versus a plural one was meant to insure that it was clear had responsibility for how laws were executed: “Thus, plurality in the executive will greatly raise the costs to the ‘zealous citizen’ who would expose wrongdoing, which costs may already be overly high given that the exposure of government wrongdoing is often, for other reasons, an ‘unpromising task.”10 And finally, separation of powers involved each branch of government having sufficient powers to counter the “ambition” of the other. To get a clearer picture of how the Unitary Executive model works, it will prove useful to explain what is meant by coordinancy and accountability. Coordinancy is often traced back to Madison’s writing in Federalist 49: “The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.”11 In our system of government, each branch of government is given constitutional powers that cannot be delegated to or infringed upon by the other branches. By “independently interpreting the Constitution, presidents need not 8

Ibid. pg. 42. Ibid. pg. 37. 10 Ibid. pp. 43-44. 9

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Chapter Two—The Unitary Executive adhere to ‘unconstitutional’ acts of Congress or to Supreme Court decisions.”12This is a principle that has been recognized by the Congress and the courts. As I will discuss later, in the late 1970s and early 1980s Congress created mechanisms to provide for legal representation in the event that the president refused to defend a law.13 Further, Congress statutorily mandated the Department of Justice to inform the Congress whenever it refused to enforce or defend a law.14 The Supreme Court has also recognized this principle of coordinancy. Justice Scalia, in a concurring opinion in Freytag v. Commissioner (90-762), 501 U.S. 868 (1991) wrote that “…it was not enough simply to repose the power to execute the laws (or to appoint) in the President; it was also necessary to provide him with the means to resist legislative encroachment upon that power. The means selected were various, including a separate political constituency, to which he alone was responsible, and the power to veto encroaching laws…or even to disregard them when they are unconstitutional.”15 This coordinate power has also been referred to as the “Merryman power.” The “Merryman” in question was John Merryman, a farmer,

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13 14 15

Madison, James. “Federalist 49.” The Federalist Papers. http://www.constitution.org/fed/federa49.htm. Accessed May 16, 2002. Devins, Neal. “Defending Congress’s Interests in Court: How Lawmakers and the President Bargain over Department of Justice Representation.” Presidential Studies Quarterly. 32:1. March 2002. pg. 158. See 2 USC Sec. 288 (e). Ibid. pg. 159; see also (US Code) Scalia, Antonin. Freytag v. Commissioner (90-762), 501 U.S. 868 (1991).

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Chapter Two—The Unitary Executive legislator, and an officer in a secessionist cavalry unit during the Civil War.16 In May, 1861, Merryman was among a group of secessionist soldiers in Maryland who was rounded up for burning bridges and tearing down telephone wires.17 Immediately upon his arrest, his lawyer asked for and was granted a writ of habeas corpus from Chief Justice Robert Taney, and directed toward General George Cadwalader, the commanding officer at Fort McHenry, which was where Merryman was being detained.18 Nearly a month prior to Merryman’s detention, Lincoln had suspended the right to habeas corpus relief. He did this in an “unpublicized order to Commanding General Winfield Scott.”19 At the time of the suspension, Congress was not in session. General Cadwalader declined Taney’s order to produce Merryman, which Taney responded to by issuing a contempt charge against General Cadwalader.20 When the contempt charge was refused at the gate of Ft. McHenry, Taney issued a final ruling, finding General Cadwalader in contempt and arguing that President Lincoln had overstepped his

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17 18

19 20

Paulsena, Michael Stokes. “The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation.” Cardozo Law Review. 15:1-2. October, 1993. pg.90. Ibid. pg. 90. Ibid. pp.90-91. In fact, for a time nearly every public officer in the State of Maryland was detained at Fort McHenry while denied their rights to habeas corpus relief. Ibid. pg. 90. Ibid. pg. 91.

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Chapter Two—The Unitary Executive constitutional authority. But because Taney did not have the means to enforce his decision, the opinion was left without force.21 Both Lincoln and his Attorney General, Edward Bates, grounded their power to deny a writ of habeas corpus as well as to ignore the Chief Justice’s opinion in the theory of coordinancy. Lincoln argued that the writ clause was silent on who had the authority to suspend it, noting that since “the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the instrument intended, that in every case, the danger should run its course, until Congress could be called together; the very assembling of which might be prevented, as was intended in this case, by the rebellion.”22 Attorney General Bates was more pointed: If it be true, as I have assumed, that the President and the judiciary are co-ordinate departments of government, and the one not subordinate to the other, I do not understand how it can be legally possible for a judge to issue a command to the President to come before him ad subjiciendum—that is, to submit implicitly to his judgment—and, in case of disobedience, treat him as a criminal, in contempt of a superior authority, and punish him as for a misdemeanor, by fine and imprisonment.23 In the end, Merryman was left imprisoned and the power of the president to ignore a court directive when the president determined 21 22

Ibid. pg. 91. Ibid. pg. 95.

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Chapter Two—The Unitary Executive that he had the correct reading of the Constitution was left in place. It certainly would not be the last time and, as I will show in my review of constitutionally-based signing statements, it is a practice that continues to this day. Critics of the Merryman power contend that it disrupts the balance of powers laid out in the Constitution, specifically ignoring the wellestablished edict of Marbury v Madison (1803) that the courts have the final say in defining “what the law is.” In response to this, coordinate power means just that—all three branches have independent powers to interpret the Constitution and the mechanisms to check inappropriate behavior of the other branches. As Michael Stokes Paulsen noted: …the President legitimately may nullify statutes and court judgments by refusing to enforce them, acting on the basis of his independent legal judgment. But Congress legitimately may seek to enforce its contrary view by declining to appropriate (or affirmatively cutting off) funds for programs desired by the President or for entire executive branch agencies, by refusing to confirm appointees (or simply abolishing their offices), or by pursuing a legislative agenda the President despises until the President capitulates or compromises. In a bare-knuckled brawl, Congress can reduce the President to little more than a bureaucrat drawing a fixed salary, vetoing bills, granting pardons, and receiving foreign ambassadors—

23

Ibid. pg. 97.

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Chapter Two—The Unitary Executive but without funds for hosting a state dinner (or even taking the ambassador to McDonald’s).24 Indeed, this is exactly what happened when the Reagan administration ignored a statutory mandate and a court order regarding the “Competition in Contracting Act of 1984 (CICA).” The portion under dispute under dispute was a section that required that protests over the awarding of government contracts would be referred to the Comptroller General, who would then hold the contract until the dispute was resolved. The Reagan administration determined that the Comptroller General was not an executive body and therefore did not have a constitutional right to stay the awarding of any contract. The Justice Department and the Office of Management and Budget (OMB) ordered the executive branch agencies to ignore that particular provision of the CICA. A lower court ruled against the administration, and newly appointed Attorney General Edwin Meese informed Congress that the Reagan administration would appeal the ruling and until the appeals were exhausted, it would continue to ignore the provision of the law. This action drew a strong outcry by the press, members of Congress, and legal scholars. In response, the House Judiciary Committee threatened to cut-off Justice Department funding,

24

Paulsenb, Michael Stokes. ““The Most Dangerous Branch: The Executive Power to Say what the Law is.” Georgetown Law Review 83:217. December 1994. pg. 322,

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Chapter Two—The Unitary Executive at which point Meese and the Reagan administration capitulated and agreed to enforce the provision in question. To respond to the criticism that the independent interpretive function violates the mandates of Marbury v Madison (1803), Thomas Merrill has pointed out that Marbury never did resolve the question whether judicial interpretation of the laws bound the other branches of government.25 Merrill argues: …Marbury determined that courts must exercise independent judgment about the meaning of the law is performing the function of resolving particular cases and controversies; it did not address the distinct question whether the judicial understanding, once reached, is binding on the other branches. In other words, Marbury establishes the autonomy of judicial interpretation. It does not demonstrate the absence of autonomy in executive interpretation.26 Thus, Marbury establishes the judiciary’s coordinate power, it does not establish the right of the judiciary to trump the constitutional powers of the other two branches of government. Thus encroachments are kept in check by each branch of government, each armed with its own special power to thwart advancements of the other. So when a president issues a signing statement challenging the constitutionality of a provision of a bill he is signing into law, he is simply stating that it 25

Merrill, Thomas W. “Judicial Opinions as Binding Law and as Explanation for Judgments.” Cardozo Law Review. 15:1-2. October, 1993.

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Chapter Two—The Unitary Executive is his determination that it is unconstitutional and how it will be enforced (or not enforced) will be determined by him. As such, the president then can let his statement be a matter of record for any future situation in which the provision is challenged, he can use this statement as a start to a bargaining process with the Congress to get rid of the obnoxious provision, or he may use the statement to signal to the Congress that should the provision be challenged in court, the executive branch will not defend it. Accountability has been a major theme of administrative control by the president. Since the president is the only nationally elected official, something that bureaucrats are not, by allowing the president to exercise control over discretionary decisions works to enhances accountability. As Elena Kagan argues, “When Congress delegates discretionary authority to an agency official, because that official is a subordinate of the President, it is so granting discretionary authority (unless otherwise specified) to the President.”27 Congress, when it passes a bill on to the president, does not have the means to monitor how the bill is carried out. The president has the resources to ensure that a bill is “faithfully executed.” Further, by giving the president centralized control, it relieves “the individual agencies from the 26

Ibid. pg. 51. See also Colby, Paul L. "Two Views on the Legitimacy of Nonacquiescence in Judicial Opinions." Tulane Law Review. 61:1041. 1987 noting “executive review” of the laws. pp. 1053-56

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Chapter Two—The Unitary Executive political pressures brought by specialized constituencies.”28And since the president has electoral concerns, and giving that he is nationally elected, he has “incentive(s) to steer national resources toward the 51% of the nation that last supported him (and that might support him again), thereby mitigating the bad distributional incentives faced by members of Congress.”29 As I will show later, when the Reagan administration made the decision to attach the signing statement to the “Legislative History” section of the United States Code Congressional and Administrative News, part of the rationale for doing so was to make sure that the heads of the bureaucratic agencies were on the same page as the president when it came time to interpret a statute. To highlight why this is important, Terry Eastland remembers a story that took place in 1983 when he first joined the Reagan Justice Department. Eastland was seated around a conference table at the Department of Justice reading news clips with other Justice Department officials regarding how President Reagan and then-

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Kagan, Elena. “Presidential Administration.” Harvard Law Review. 114:8 June 2001. pg.2327. 28 Breyer, Stephen. “Symposium: Agency Autonomy and the Unitary Executive.” Washington University Law Quarterly. 68:3. 1990. pg.512. 29 Calabresia, Steven G. “Some Normative Arguments for the Unitary Executive.” Arkansas Law Review. 48:23, 1995. pg. 35. This does not diminish in his second term. As Peter Shane argues, in the second term the president works to help party members during the mid-term election, he works to help his successor, and finally he works to build a positive legacy. Shane, Peter M. “Political Accountability in a System of Checks and Balances: The Case of Presidential Review of Rulemaking.” Arkansas Law Review. 48:161, 1995. pg.193.

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Chapter Two—The Unitary Executive Attorney General William Smith were censoring films that were coming in from Canada. The subject of the films was about acid rain. The administration was taking a beating in the press about how it was infringing upon First Amendment freedoms. Eastland, who originally thought that Attorney General Smith was responsible for the censorship, later found out that the Attorney General, or any other high ranking official in the Reagan administration had anything to do with the action. It turned out to be a civil servant in the Criminal division of the Department of Justice applying his interpretation of the “Foreign Agents Registration Act”.30 Even though the Unitary Executive can trace its lineage to the writings of the Founding Fathers, it is my contention that the forces that shaped it are relatively new, emerging from the political hydraulics of the last 30 years. While much ink has been spilled arguing what the Founding Father’s truly meant by the various clauses of Article II of the Constitution, my point in this endeavor is to view that particular argument as moot. Regardless of what the Founding Father’s meant about executive power, the fact is that the executive has amassed a number of significant powers over the last three decades as a result of pressures in the political system that have given rise to the Unitary Executive. 30

Eastland, Terry. "Symposium: Agency Autonomy and the Unitary Executive."

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Chapter Two—The Unitary Executive What then are the significant pressures? It is my belief that two forces have managed to solidify the need for unified control by the president. The first is the rise of and attention given to the vast administrative state, beginning with President Nixon and every subsequent president. The second is the effect that Watergate had on the system—a popular desire to muzzle the power of the presidency and the persistence of divided, highly partisan government. Beginning with the New Deal, the bureaucracy in Washington D.C. has become an important component of the political process. Congress has viewed the bureaucracy as a means to distribute benefits to constituents, all the while putting the bureaucracy mostly under the direction of the executive branch. Starting with the Nixon administration, the bureaucracy was viewed with suspicion as an institution whose politics largely conflicted with the politics of his administration. Nixon was convinced that to gain control over the vast administrative state, he had to centralize the policy process as tightly as possible—to remove discretion from the hands of career, nonappointed bureaucrats. Nixon turned to the Office of Management and Budget, which was formed in 1970 from the Bureau of the Budget. The Bureau of the Budget was established in 1921 out of the Budget and Accounting Act of 1921. Congress created the Bureau within the

Washington University Law Quarterly. 68:3 1990. pg.509.

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Chapter Two—The Unitary Executive Treasury Department to “coordinate presentation of an annual comprehensive budget with estimated expenditures and revenues and requested appropriations.”31 The first director, Charles G. Dawes established procedures that would lead to a central clearance process, ultimately giving tremendous political power to the executive branch from 1970 on to the present.32 When Nixon created the Office of Management and Budget in 1970, central clearance and coordination was still an integral part of what the office did, only now rather than it being handled by career civil servants it was now handled by political appointees.33 The OMB, as I will show later, has become a tremendous part of the process in which presidents use the signing statement as a way to gain control of policy. The second force, also a Nixon creation, was the impact that Watergate had on the presidency. When it was revealed that President Nixon was using his political appointees to commit criminal acts, Congress, the press, and the public sought to gain greater control and oversight of the executive branch. Thus, Congress passed laws such as the Ethics in Government Act of 1978 that established the Office of the Independent Counsel to avoid a repeat of the “Saturday

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32

33

Garrison, Loretta Hagopian. “Who Decides? The Struggle for Control over the Federal Government’s Spending Power.” Case Western Reserve Law Review. 38:66. 1988. pg. 89. Fisher, Louis. The Politics of Shared Power: Congress and the Executive. 2d. Washington D.C.:Congressional Quarterly Press. 1987. pg.45. Ibid. pg. 46.

15

Chapter Two—The Unitary Executive Night Massacre” in which President Nixon ordered Attorney General Elliot Richardson to fire special prosecutor Archibald Cox. Richardson resigned and newly-appointed Attorney General Robert Bork fired Cox. The Office of the Independent Counsel would be free from executive branch pressure while charged with investigating potential criminal activity within the executive branch. Congress also established a number of institutional resources to allow it to better deal with the activities of the president. For instance, in 1974 the Congress passed the Congressional Budget and Impoundment Control Act of 197434 “to reassert the congressional role in budgeting, to add some centralizing influence to the Federal budget process, and to constrain the use of impoundments.”35Up until the Nixon administration, presidents had withheld appropriated funds, “justified either on the basis of statutory authority or on the claim that presidents had inherent authority to withhold funds from obligation.”36 Presidents mostly used impoundment as a bargaining tool with the Congress, agreeing to release funds in an informal negotiation with the Congress when the Congress and the president worked out an agreeable position on the issue in conflict.37 In 1974, this informal mechanism fell apart after Nixon began to systematically use the 34 35 36 37

PL 93-344. http://www.house.gov/rules/jcoc2y.htm. Accessed May 17, 2002. Fisher. pg.86. Ibid. pg. 86.

16

Chapter Two—The Unitary Executive impoundment as a way to curtail Congress’s spending power. The 1974 act enabled the Congress, through a legislative veto, to obtain the release of funds being withheld by the president. If the president refused, the comptroller general was authorized to bring suit against the president to obtain the release of the funds.38 The budget portion of the Congressional Budget and Control Act of 1974 established the Congressional Budget Office (CBO). The CBO provided a mechanism for the Congress to go toe-to-toe with the Office of Management and Budget, whose now highly politicized budget recommendations could no longer be trusted. In addition to this, Congress established oversight of the intelligence agencies in the executive branch and begin to attach legislative vetoes to most legislation as a way to inform Congress as much as possible on the activities of the president. This “increasing tendency to interfere with executive power…made it much harder for the Executive to fulfill its responsibilities.”39 At this same time, the presence not just of divided government, but highly partisan divided government became a staple of the political system.40 Divided government occurs when the presidency is

38 39

40

Ibid. pp. 86-87. Thornburgh, Dick. “The Presidency and Congress: Constitutionally Separated and Shared Powers.” Washington University Law Quarterly. 68:3. 1990. pg.487. See, for example, Bond, Jon R. and Richard Fleisher. Polarized Politics: Congress and the President in a Partisan Era. Washington D.C.: Congressional Quarterly Press. 2000.

17

Chapter Two—The Unitary Executive controlled by one political party and the Congress, either one house or both, is controlled by the other party. There are some who argue that divided government does not have a significant impact on the legislative success or failure of the president.41 My argument differs in that it asserts that the perceptual barrier of dealing with a Congress controlled by a different party of radicalized partisans has forced the president to look elsewhere for advantages over policy—and “elsewhere” has been the political signing statement as a means to control how the bureaucracy will enforce a particular piece of legislation. As I will show later, after the early successes the Reagan administration had in dealing with the Congress in 1981, it found a loss of support in every subsequent year culminating in the 1986 midterm elections that brought Democratic control to the Congress.42 As the administration slowly lost support in Congress, its attention increasingly turned to administrative control of the policy process. I would now like to turn my attention to how the president asserts unitary control over the executive branch. I am going to argue that 41

42

Mayhew, David. Divided We Govern: Party Control, Lawmaking, and Investigations, 1946-1990. Connecticut: Yale University Press. 1991; Krehbiel, Keith. Pivotal Politics: A Theory of U.S. Lawmaking. Chicago: University of Chicago Press. 1998; Brady, David W., and Craig Volden. Revolving Gridlock. Colorado: Westview Press. 1998. But see Edwards, George C., Andrew Barrett, and Jeffrey Peake. “The Legislative Impact of Divided Government.” American Journal of Political Science. 41:2. April, 1997 for a counter argument regarding the affects of divided government. Bond, Jon R. and Richard Fleisher. “Congress and the President in a Partisan Era” in Bond, Jon R. and Richard Fleisher. Polarized Politics: Congress and the

18

Chapter Two—The Unitary Executive the foundation of the Unitary Executive is constitutional, drawing its strength from the “Oath” Clause and the “Take Care” Clause of the Constitution. The “Oath” Clause allows the president to defend from encroachments upon executive prerogatives as well as to protect the constitutional rights of individuals. The “Take Care” Clause allows the president to “interpret” legislation in a manner that maximizes executive branch policy preferences. The “Oath” Clause of the Constitution is found in Article II, Section I. It states that the “President will faithfully execute the Office of the President and will preserve, protect, and defend the Constitution of the United States.” It is in this phrase that the president both protects the prerogatives of his office (faithfully execute) as well protects the liberties of individuals. As Steven Calabresi argues, “…it is a duty of the President to preserve, protect and defend his office, which is, or course, a creation of the Constitution itself. The President takes an oath to uphold that Constitution and the public judges him, and ought to judge him, by his vigilance in fulfilling that oath.”43 To enforce the “Oath” protection, the Justice Department has carved out two caveats to the president’s constitutional obligation to defend and enforce statutes: The first is to not defend or enforce those President in a Partisan Era. Washington D.C.: Congressional Quarterly Press. 2000.

19

Chapter Two—The Unitary Executive statutes that are “clearly unconstitutional” and the second is to not defend and enforce those that encroach upon the prerogatives of the executive branch.44 The first caveat “accommodates the conflict between the constitutional mandate that the President execute the laws and his oath to support and to defend the Constitution” while the second caveat “accommodates the occasional conflict between the roles of the President as the chief law enforcement officer of the United States and the role of the Attorney General as the advocate of the executive branch.”45 Michael Stokes Paulsen perhaps better clarifies the point of the “Oath” clause acting as a shield for the executive branch: It is plain from the context that the President’s power to “shield himself” does not mean that the power of constitutional review is limited to the President’s exercise of his veto in order to protect his own constitutional prerogatives (though it certainly means at least that). Rather, this check extends to “refus[ing] to carry into effect” (that is, refusing to execute) any that the President concludes transgresses constitutional limits. The power to “shield” oneself is the power (and duty) to refuse to act in complicity with unconstitutional conduct.46 (emphasis mine)

43

44

45 46

Calabresib, Steven G. “Advice to the Next Conservative President of the United States.” Harvard Journal of Law and Public Policy. 24:369. Spring, 2001. pg.375. Note. “Executive Discretion and the Congressional Defense of Statutes.” Yale Law Journal. 92:970. May,1983. pg. 973. Ibid. pp. 973-974. Paulsenb, Michael Stokes. pg. 253.

20

Chapter Two—The Unitary Executive If Article II enables the president to shield his office from enforcing or executing unconstitutional laws, then the particular entity within the executive branch that is charged with enforcing this shield is the Department of Justice (DoJ), and even more specific, the Office of Legal Counsel (OLC). William Barr notes that in addition to acting as counselor to the president and resolving legal disputes between departments within the executive branch, an often overlooked duty of the Attorney General involves providing legal interpretation of bills the president is signing into law. An as part of this duty, the DoJ will advise the president on vetoing a bill and if a veto is impossible, then an appropriate interpretation of the bill (the signing statement) to avoid constitutional difficulties.47 In many cases, the Department of Justice will propose, as a fallback position, that an issue be addressed in a signing statement if it would be politically impossible simply to veto a bill. For instance, at the very end of its session, Congress frequently passes large bills and then leaves town. The only choice we have is to veto the bill and, say, shut down the foreign operations of the US altogether for six months, or sign the bill and note exception to some provision we think is unconstitutional. Thus, in some instances, signing statements have directed subordinate officials to disregard

47

Barr, William P. “Attorney General’s Remarks.” Cardozo Law Review. 15:1-2. October,1993. pp.33-34.

21

Chapter Two—The Unitary Executive provisions of a bill that are thought to be clearly unconstitutional and severable. 48 Barr concludes, with a position supported by Solicitor General Theodore Olson, that when the president is faced with a decision in which the Constitution says one thing and a statute says another, the president is left with no other choice than to enforce the Constitution. “Particularly where a law encroaches on executive power, the only effective way of challenging the law is by declining to enforce it.”49 As I noted above, within the Department of Justice are various agencies that are specialized to handle particular legal issues confronting the nation (See Appendix 2.1). Of particular importance to the shielding power of the executive branch is the Office of Legal Counsel (OLC). The OLC was formally created in 1953 to “maintain the constitutional protections for the President.”50 The OLC both provides legal advice of a constitutional nature to all the departments within the executive branch and it provides “both written and oral advice in

48

Ibid. pg. 39. Ibid. pg. 39. Devins, Neal. “Political Will and the Unitary Executive: What Makes an Independent Agency Independent?” Cardozo Law Review. 15:1-2. October, 1993. pg. 281. 50 Baker, Nancy V. “The Attorney General as a Legal Policy-Maker: Conflicting Loyalties” in Cornell Clayton. Government Lawyers: The Federal Legal Bureaucracy and Presidential Politics. Kansas: University of Kansas Press. 1995. pg. 32. Shanks, Robert B. “Office of Legal Counsel—The President’s ‘Outside” Law Firm” in The Department of Justice Manual. New Jersey: Prentice Hall. 1990-91. pg. 1-38. 49

22

Chapter Two—The Unitary Executive response to requests from the Counsel to the President.”51 Over the course of the twentieth century, the OLC “came to present themselves as agents of the Constitution itself and as guardians of an office whose significance to our nation far outstrips the petty political disputes that consume the daily life of most of those around the president.”52 The OLC will eventually evolve into a major player in the development and significance of the signing statement. As I will show later, during the Reagan administration it was the OLC that came up with the novel approach of attaching the signing statement to the “Legislative History” section of the United States Code, Congressional and Administrative News (USCCAN). Further, during the Clinton administration, the OLC issued an opinion regarding the significance of the signing statement. In that opinion, Walter Dellinger, Assistant Attorney General in the OLC, advised President Clinton’s White House Counsel, Bernard Nussbaum, that the president is obligated to use a signing statement in which legislation appears constitutional on the surface, but has parts that would be unconstitutional if executed.53 In keeping with practice, Dellinger argued, a signing statement “that

51

http://www.usdoj.gov/olc/index.html. Accessed February 15, 2002. Lund, Nelson. “Guardians of the Presidency: The Office of the Counsel to the President and the Office of Legal Counsel” in Cornell Clayton. Government Lawyers: The Federal Legal Bureaucracy and Presidential Politics. Kansas: University of Kansas Press. 1995. pg. 212. 53 Dellinger, Walter. “The Legal Significance of Presidential Signing Statements.” Memorandum, Office of Legal Counsel. November 3, 1993. http://www.usdoj.gov/olc/signing.htm. Accessed May 20, 2002. 52

23

Chapter Two—The Unitary Executive challenges what the President determines to be an unconstitutional encroachment on his power, or that announces the President’s unwillingness to enforce (or willingness to litigate) such a provision, can be a valid and reasonable exercise of Presidential authority.”54 Even though the OLC has undertaken the primary responsibility of protecting the president from encroachment upon the constitutional powers of the office, this does not mean that the OLC gets the final say. There are times when political expedience may overrule the opinion of the OLC. For example, when the bill to bail out the failed Savings and Loans in the late 1980s reached President Bush’s desk, the OLC found some constitutional problems regarding how the director of the Office of Thrift Supervision was appointed. The OLC, in this instance, argued that the bill should be vetoed on that defect alone. However, many people in Congress and in the executive branch found this bill to be too politically important to allow a minor constitutional defect to derail it, and as such, the OLC was overruled.55 In this first leg of the Unitary Executive, the president, by relying upon the “Oath Clause” of the Constitution shields his office from encroachments upon its prerogatives. The primary protector of the president’s prerogatives is the Department of Justice, in particular, the

54 55

Ibid. Barr, William P. pg. 38.

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Chapter Two—The Unitary Executive Office of Legal Counsel. All enrolled bills56 that go to the president’s desk for signature flow through the OLC “which reviews them for constitutional problems and makes a recommendation to the President whether to sign or veto.”57 The OLC may also play a role in drafting both the veto statement if the president vetoes the bill and the signing statement if constitutional objections need to be made.58 This does not mean that the OLC gets the last word. In fact, in some instances political expedience can overrule the Constitutional objections of the OLC, as the case of the Savings and Loan bill above illustrates. The “Take Care” Clause is found in Article II, Section III of the United States Constitution. It obligates the president to “…take care that the laws are faithfully executed.” Further, in Article II, Section II of the United States Constitution, the president may solicit the opinions of the principle officers of the various executive branch agencies to help him to take care that the laws are faithfully executed. These two powerful components of the Constitution have been used to argue for a unified interpretation of laws that the president is signing. As Michael Herz argues: The Take Care Clause is backed up by the President’s specific, and unique, oath to “faithfully execute” his office. The use of the 56

57 58

Those bills that are advanced by the Administration are circulated to all interested agencies for comment. OLC will only get a bill if the Office of Legislative Affairs (OLA) seeks a legal review. Shanks, Robert B. pg. 1-43. Ibid. pg. 1-43. Ibid. pg. 1-43.

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Chapter Two—The Unitary Executive passive voice in the Take Care Clause indicates that the President will not necessarily be executing the laws directly, but only overseeing others to ensure their “faithful” execution. [Further], the Take Care Clause uses the active voice to impose a direct responsibility on the President to “take care.” Interpreting statutes to ensure that what the agencies are doing is consistent with the statute, as opposed to some independent policy goal, seems an inescapable part of “taking care” that the agency is faithful to the statute.”59 As the Supreme Court has noted, “Interpreting a law enacted by Congress to implement the legislative mandate is the very essence of ‘execution’ of the law.”60 President Wilson argued in 1908, regarding the “Take Care” clause, that “[It] is therefore becoming more and more true, as the business of the government becomes more and more complex and extended, that the President is becoming more and more a political and less and less an executive officer.”61 The use of the political signing statement gets at the very root of the “Take Care” power. It is meant to put the executive branch agencies, more than any other actor in government, on the same page as the president when it comes to interpreting the meaning of a

59

Herz, Michael. “Imposing Unified Executive Branch Statutory Interpretation.” Cardozo Law Review. 15:1-2. October, 1993. pp. 252-53. 60 Bowsher v Synar. 478 U.S. 714 (1986). 61 Goldstein, Joel K. "The Presidency and the Rule of Law: Some Preliminary Explorations." Saint Louis University Law Journal. 43:791. Summer, 1999. pg. 803.

26

Chapter Two—The Unitary Executive particular statute. David Rivkin sees the political signing statement as “crucial to the executive branch to put its own house in order and to run it by issuing binding policy directions to its subordinates.”62 If the “Take Care” Clause gives the president the power to direct his subordinates as to how to interpret laws, as I assert it does, then what is to stop the president from interpreting all legislation that comes across his desk in a manner that consistently favors his policy preferences? First, the Supreme Court has held that an executive branch agency must interpret legislation per Congress’s wishes when the plain meaning of the legislation is evident; absent the intent of Congress, the agency, under the direction of the president, may interpret the meaning of the statute.63 And second, the administration is constrained by the collective will of the Congress. Terry Moe and William Howell have argued for a theory that seeks to explain why presidents rely upon such informal powers like presidential signing statements. According to Moe and Howell, presidents exploit the ambiguities within the formal structure of the Constitution to advance their own powers, and “neither the Congress

62

Rivkin, David B. Jr. “The Unitary Executive and Presidential control of Executive Branch Rulemaking.” Administrative Law Journal. 7:309. Summer, 1993. pg. 321. 63 Chevron U. S. A. Inc.. v. Natural Resources Defense Council, Inc. et. al. 467 U.S. 837 (1984).

27

Chapter Two—The Unitary Executive nor the courts are likely to stop them.”64The steady use of these powers over time tilts the balance in favor of the presidency. However, this does not allow the president to do whatever he wishes. If the president takes an action that allows Congress to overcome the collective action problem inherent in the institution, then it can act to check the advances of the president. Kenneth Mayer, drawing upon Gordon Silverstein’s work on the separation of powers between the Congress and the president, makes a similar case. Mayer notes that legislators will more likely organize effectively when they are dealing with issues directly affecting their constituents. Congress, in other words, is most effective when it is acting as a representative institution, because it is more likely to respond to sustained electoral pressures than to vague concerns that the president is encroaching on its administrative or procedural prerogatives.65 How did presidents come around to interpreting the “Take Care” Clause to provide them with the means to control the administrative state? This is the more recent component to the development of the signing statement. The Nixon administration was the first to look, in any systematic way, at removing administrative discretion from the heads of the bureaucratic agencies. In essence, this “Take Care” power came about as a result of the administrative presidency. 64

Moe, Terry M. and William G. Howell. "Unilateral Action and Presidential Power: A Theory." Presidential Studies Quarterly. Volume 29, Number 4. December,1999. pg.852.

28

Chapter Two—The Unitary Executive The administrative presidency is: … a management strategy designed to ensure bureaucratic responsiveness to the president. It is intended to help presidents achieve their policy goals administratively through the bureaucracy rather than legislatively through Congress, and to bring the bureaucracy to heel. It consists of a set of tools whose purpose is to reign in the bureaucracy, overcome bureaucratic advantages, and enable presidents to achieve their policy objectives without requiring congressional consent.66 It was the Teddy Roosevelt administration that first looked to the advantages of controlling the administrative state. The Hoover administration was aided greatly via the creation of the Bureau of the Budget.67 However, systematic centralized control of the bureaucracy to advance policy preferences was not something picked up on until the Nixon administration. As Richard Nathan argued, Nixon deployed four key strategies to exert administrative control: • • •

65

66

67

Personnel shifts—putting top political appointees into important agency positions; Budget impoundments and reductions—using the fiscal power of the presidency to halt entire programs; Reorganization—whole agency activities would be reorganized right out of existence or “super secretaries” would be created to serve as a counter-bureaucracy;

Mayer, Kenneth R. With the Stroke of a Pen: Executive Orders and Presidential Power. Princeton: Princeton University Press. 2001. pg.27. Golden, Marissa Martino. What Motivates Bureaucrats? Politics and Administration during the Reagan Years. New York: Columbia University Press. 2000. pp.5-6. Kagan, Elena. pg. 2274.

29

Chapter Two—The Unitary Executive •

Regulation—writing regulation was seen as a method to achieving major policy goals.68

As Nathan concluded in his study, this move by the Nixon administration was largely a failure. However, it laid the ground work for future presidents to pick up and exploit, so by the time of the Reagan administration, it had the necessary tools to centralize control over the bureaucracy unlike any administration that came before. When Nathan revisited his thesis and applied it to the Reagan administration, he determined that Reagan accomplished what Nixon could only dream.69 Just as the Department of Justice was the chief enforcer of the “Oath” Clause, the Office of Management and Budget (OMB) is the entity chiefly responsible for administrative control under the “Take Care” Clause of the Constitution. The Office of Management and Budget, aided in great part by a couple of executive orders, has undertaken a strategy to impose executive branch statutory interpretation.70 Beginning with the Nixon administration and perfected in the Reagan administration, the OMB has been used as a “point of central clearance for all executive branch budgetary requests” to reduce “the ability of individual agencies to 68

Nathan, Richard. The Plot that Failed: Nixon and the Administrative Presidency. New York: Wiley and Sons. 1975. pp. 72-75. 69 Nathan, Richard. The Administrative Presidency. New York: John Wiley and Sons. 1983

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Chapter Two—The Unitary Executive make an end run around the president and request more money from Congress.”71 To insure the central point of clearance, President Reagan issued two key executive orders that made OMB a central player. The first, executive order 12,291, was issued just a month into Reagan’s presidency. Executive order 12,291 required executive branch agencies to submit all of their proposed rules and policy documents to the OMB before they were released. OMB was then able to insure that the proposals were consistent with five general principles: Under these principles, agencies must base their decisions on adequate information concerning the need for and consequences of the proposed action, and must determine regulatory objectives, priorities, and actions in a way that will maximize net societal benefits when costs and benefits are compared. Major rules72 require a formal “regulatory impact analysis (RIA)” analyzing the costs and benefits, including those that cannot be quantified monetarily, of the regulation, discussing more cost-effective means to the same end, and explaining the legal obstacles, if any, to pursuing the more cost-effective approach.73

70

71 72

73

Herz, Michael. “Imposing Unified Executive Branch Statutory Interpretation.” Cardozo Law Review. 15:1-2. October, 1993. Golden, Marissa Martino. pg.7. Executive order 12,291 defines a "major rule" as a regulation likely to produce an annual impact of $100 million or more on the American economy or a major increase in costs or prices. Executive Order No. 12,291, 46 Fed. Reg. 13193 (1981). Herz, Michael. pg.222.

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Chapter Two—The Unitary Executive The second executive order, 12,498, modified 12,291. Executive order 12,498 instructs agencies to prepare annual agendas that detail all ongoing or potential rulemaking activities and to explain to OMB how these activities are “consistent with the administration’s regulatory principles.”74 The OMB also was empowered to “approve the rulemaking agendas prepared by the agencies” and barred those “rules not identified” in the president’s agenda or otherwise approved by the OMB.75 Taken together, these two executive orders enabled the president to control a great deal of the policies that made their way through the bureaucracy. As one former staff member at the EPA noted, "You don’t spend two years thinking about a regulation without thinking about whether OMB is going to shoot it down."76 Given the discretion to the OMB to monitor and clear the rules and proposed rules from the executive branch agencies, the use of the political signing statement then becomes significant. In 1979, the OMB issued OMB Circular A-19 which asked all agencies that wished to have a signing statement included in a piece of legislation to submit

74 75

76

Executive order 12,498. 50 FR 1036, 3 CFR, 1985. Cooper, Joseph and William F. West. "Presidential Power and Republican Government: The Theory and Practice of OMB Review of Agency Rules." Journal of Politics. 50:4, November 1988. pg.874. Ibid. pg. 876.

32

Chapter Two—The Unitary Executive the draft to the OMB.77 This enabled OMB to oversee the use of signing statements by the executive branch agencies in an effort to coordinate their use with the policy purposes of the administration. On its own, A-19 was more or less meaningless, used to insure that the signing statements were issued in a coherent fashion. However, when put together with executive orders 12,291 and 12,498, it increased the “degree to which the commitments a president shares with key elements of his electoral coalition will be given priority over legislative intent or technical expertise in the service of such intent.”78 The political signing statement, then, is a creature of the president’s interpretation of the “Take Care” Clause of the Constitution. To take care that the laws are faithfully executed, the executive branch has sought to centralize as much of the policy process into the hands of the executive branch political appointees. Because the president has a constituency of his own, the political signing statement is a way to respond to the wishes of a particular constituency who failed to get their message through to Congress. Centralization of the rulemaking process is isolated in the Office of Management and Budget, which has become a pivotal player in the

77

78

The Office of Management and Budget. Circular No. A-19 Revised September 20, 1979. http://www.whitehouse.gov/omb/circulars/a019/a019.html. Accessed May 23, 2002. Cooper, Joseph and William F. West. pg.883.

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Chapter Two—The Unitary Executive policy process beginning with the Nixon administration but actually perfected in the Reagan administration. In Conclusion, the Unitary Executive is different from the model offered by Richard Neustadt.79 As Kenneth Mayer argues, the Neustadt paradigm has remained influential in the study of the presidency for two reasons: “First, Neustadt’s views found support in normative prescriptions of how the president should behave. The ‘power to persuade’ model of an activist presidency fit with the notion of the president as a leader, at the center of the give and take of political bargaining.”80 And second, “Presidential Power served to demarcate a shift away from traditional avenues of presidential scholarship.”81 Prior to Neustadt, presidential scholars focused more on the formal constitutional powers of the president. Neustadt uprooted the study of the presidency from that which gave it meaning. As Mayer documents, it wasn’t until the last thirty years that a minority of presidential scholars began to refocus our attention on the constitutional meaning of the presidency.82

79

Neustadt, Richard. Presidential Power and the Modern Presidents: The Politics of Leadership from Roosevelt to Reagan. New York: Macmillan, 1990. 80 Mayer, Kenneth. pg.12. 81 Ibid. pg. 12. 82 Ibid. pg. 14.See also Pious, Richard M. The American Presidency. New York: Basic Books, 1979: “The fundamental and irreducible core of presidential power rests not on influence, persuasion, public opinion, elections or party, but rather on the successful assertion of constitutional authority to resolve crises and significant domestic issues.” pg. 17.

34

Chapter Two—The Unitary Executive The Unitary Executive is a creation of constitutional interpretation. It is not a subtle model like the Neustadt model of informal bargaining and persuasion but rather a blunt instrument that allows the president to strategically and methodically use a wide array of tools to push his legislative preferences forward and to protect his office or the constitutional liberties of individuals. As I noted earlier, the model of the Unitary Executive argues that the president, as a coordinate branch of government, may independently interpret the Constitution. Further, the president is the only nationally elected official, which makes him accountable for how laws are executed. Therefore, the president is best situated to coordinate agency activities and by virtue of his accountability and central position, he can bring energy to the administrative process that agency officials cannot muster by themselves. Two key institutions allow the president to centralize control within the executive. First the Office of Legal Counsel, located in the Department of Justice, scans all pieces of legislation for anything that might infringe on the president’s prerogatives. The Office of Legal Counsel will attach signing statements to legislation outlining what parts of the legislation has constitutional difficulties and what the administration plans to do about it.

35

Chapter Two—The Unitary Executive The second key player in the Unitary Executive is the Office of Management and Budget. A creation of the Nixon administration, the OMB incrementally centralized administrative control through the Ford and Carter administrations, and fully blossomed as a powerful organization in the Reagan administration. The OMB monitors all rules, both actual and proposed, to see that the rules line up with the administration’s policy preferences. The OMB also collects signing statements, which it uses to give notice to executive branch agency heads what the president’s views are on a particular piece of legislation. What this model should not suggest is that the executive branch is a monolith. In fact, the Congress can still exert, as I will show, tremendous pressure upon executive branch officials to check the administration’s ambitions. The Supreme Court has also outlined exactly how far the administration can go in interpreting policy. And finally, there is tremendous in-fighting among executive branch players so that in some instances a constitutional signing statement gives way to political interests. Before I begin the story of how the Unitary Executive became solidified in the Reagan administration, I think it will be useful to provide a picture of the presidential signing statement to date and how

36

Chapter Two—The Unitary Executive they became institutionalized. This will be the focus of the next chapter.

37

Chapter Two—The Unitary Executive

38

Chapter Three-A Macro-view of the Signing Statement Chapter Three A Macro-View of the Signing Statement Article One, Section Seven of the United States Constitution contains the president’s involvement in the legislative process. It states that a president, when presented with a bill from Congress, signs it, if he approves of it, or vetoes it, with his objections, should he disapprove. There is nothing in the Constitution that mentions a president offering extraneous statements of the bill after he signs it into law. It was not until the 20th century that presidents even began to regularly use the signing statement, and as argued earlier, not until the last 30 years that the signing statement became a significant tool in a president’s toolbox. This chapter will look at the history and development of the signing statement. It will be useful to discuss what the signing statement is before examining how it has developed along with the Unitary Executive, which will be the focus in the chapters that lay ahead. In this Chapter, I will address the following questions: What is meant by a presidential signing statement? How many signing statements have been issued from Washington to Clinton? Who issued the first signing statement? Are there any patterns in the use of the

1

Chapter Three-A Macro-view of the Signing Statement signing statement? Does the frequency vary with a president’s political situation?1 On the surface, signing statements are quite simple to understand. They are nothing more than a statement issued by the president, mostly in written form but also at times “announced” during a bill signing ceremony. There are instances when the verbal signing statement differs slightly from the written statement on the same piece of legislation. This is largely in recognition to the different audience the president is hoping to reach. For example, in signing the “Railroad Retirement Solvency Act of 1983,”2 President Reagan released two different bill signing statements. The written statement, which was three paragraphs long, was specifically meant to explain to the Congress and the executive branch agencies the constitutional problems of having the Railroad Retirement Board submit reports concurrently to the President and the Congress.3 However, in the formal bill signing ceremony on the same day, which constituted seven paragraphs, there was no mention of the constitutional defects of the bill. Instead, President Reagan took time to single out members of 1

2

These questions are exactly the same questions Kenneth Mayer asked in his discussion of executive orders. I have borrowed them because they are particularly useful in explaining a similar presidential power, the signing statement. See Mayer, Kenneth R. With the Stroke of a Pen: Executive Orders and Presidential Power. New Jersey: Princeton University Press. 2001. pg. 66. PL 98-76.

2

Chapter Three-A Macro-view of the Signing Statement Congress, many of whom were fellow partisans, for the good work that was done on the bill.4 Ever since the Reagan administration, the signing statement now appears in the “Legislative History” section of the United States Code, Congressional and Administrative News (USCCAN). However, prior to this 1986 decision (explained in greater detail in Chapter Four), the signing statement could be found in The Weekly Compilation of Presidential Documents (1965-present), and The Public Papers of the Presidents. The Public Papers only fully covered President Hoover and President Truman through President George W. Bush. The Public Papers and Addresses of Franklin Delano Roosevelt only sporadically contained signing statements. To insure that all were being considered, I had to also review the Congressional Record, which contains communications from the president. Prior to President Hoover, the Congressional Record and A Compilation of the Messages and Papers of the Presidents 1789-1897 were reviewed for presidential signing statements.5 The importance of the signing statement has largely gone unrecognized by political scientists interested in the study of

3

4 5

Reagan, Ronald. “Statement on signing the Railroad Solvency Act of 1983.” Weekly Compilation of Presidential Documents. Vol. ? pg. 117. September 12, 1983. Ibid. pg. 116 I also received the data gathered by Professor Christopher May when he worked on a similar project. For this I am forever grateful.

3

Chapter Three-A Macro-view of the Signing Statement presidential power. And what has been written by political scientists has often been dramatically wrong6 or incomplete.7 Instead, the study of the signing statement has been relegated to legal scholars who, while making an important contribution, overlook the political importance of the signing statement. Mostly, the discussion of the signing statement appears in arguments over formal versus functional separation of powers8 and the role it should serve in legislative history (see below). Additionally, many who do discuss the signing statement make a number of serious errors. The pad story line goes something like this: President Jackson was the first to use the signing statement over a bill regarding internal improvements. President Tyler received a public rebuke from the Congress for issuing a signing statement. And in 1986, the Reagan administration took the unprecedented step of having the signing statement included in the "Legislative History” section of the United States Code Congressional and Administrative 6

7

8

Chris Cookson, in a 1997 article appearing in the Southeastern Political Review both greatly overstates the power of the signing statement and falsely charges popular hostility to the use of the signing statement in the Reagan and Bush administrations. Cookson, Chris E. "Formal Executive Power: The Contemporary Presidency." Southeastern Political Review. 25:3, September, 1997. Even the most recent book that discusses the signing statement by a noted expert on the means that presidents use to exert power within the political system discusses signing statements that have been used but not what effect they had on the system. Additionally the “expert” gives no sense of where they began or how many have been used to date. See Coopera, Phillip J. By Order of the President: The Use and Abuse of Executive Direct Action. Kansas: University of Kansas Press. 2002. Formalists argue that each branch of government must be hermetically sealed from the other branches of government with no mixing of powers while functionalists take the position of “separate institutions sharing power.” Thus in this vein you see arguments regarding the role of the president in the legislative process.

4

Chapter Three-A Macro-view of the Signing Statement News. What this misses is a sense of history—who was the first to issue a statement and how many have been issued to date? Knowing this can give us not just an historical context but also recognizable patterns (do they vary during election years? for example). By not having an accurate count of how many signing statements have been made, scholars make significant mistakes. For example, William Popkin notes that “[Before] President Reagan, only a few presidents issued (signing statements).”9 However, up to President Reagan there were a total of 1294 statements issued. Also, by not knowing how many signing statements are issued, scholars take to guessing the number, which often times produces dramatic results. For instance, Kristy Carroll’s 1997 Catholic University Law Review article on presidential signing statements notes that President Reagan issued “approximately 1046 signing statements accompanying the bills he signed into law.”10 Some slack can be given in that she qualified her account by noting that it was “approximately” correct. In reality, President Reagan issued a total of 276 signing statements. A complete picture of all signing statements issued can be found in Appendix 3.1. The other part of the development of signing statements that has not received adequate attention is the importance that the Reagan 9

Popkin, William D. “Judicial Use of Presidential Legislative History: A Critique.” Indiana Law Journal. Volume 66. Winter, 1993. pg.702.

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Chapter Three-A Macro-view of the Signing Statement administration placed on the signing statement. We are mostly left to intuit that the inclusion in the USCCAN was important. In the next chapter, I will explain why that decision was important and how it lead to the solidification of the Unitary Executive. I have identified three categories11 in which signing statements “fit.” The first category I refer to as “Constitutional.” The second category I refer to as “Political.” And the third category I refer to as “Rhetorical.” Category One—Constitutional Signing Statements Constitutional signing statements are those statements that address constitutional defects in a section or sections of legislation. The president outlines what the defect is and what he intends to do about it. This can range from urging Congress to pass legislation that corrects the defect to directing executive branch agencies to ignore the provision. They may also be no more than the president issuing a constitutional corrective to a section that he agrees with. For example, when President Reagan signed the “International Security 10

11

Carroll, Kristy L. “Whose Statute is it Anyway?: Why and How Courts Should Use Presidential Signing Statements When Interpreting Federal Statutes.” Catholic University Law Review. 46: 475. Winter, 1997. pg.491. Carroll, Kristy L; Dellinger, Walter. “Memorandum for Bernard N. Nussbaum.” Arkansas Law Review. 48: 333. 1995; May, Christopher. Presidential Defiance of “Unconstitutional” Laws. Connecticut: Praeger. 1998. Burgess, Christine E. “When may a President Refuse to Enforce the Law?” Texas Law Review. 72: 471. February, 1994.; Gaziano, Todd F. “The Use and Abuse of Executive Orders and Other Presidential Directives.” Texas Law Review. 5: 267. Spring, 2001; Garber, Marc N. and Kurt A. Wimmer. “Presidential Signing Statements as

6

Chapter Three-A Macro-view of the Signing Statement and Development Cooperation Act of 1985”,12 he made objections in the bill regarding the Palestine Liberation Organization (PLO). Section 1302 stated that it is the position of the United States not to recognize the PLO due to the PLO’s refusal to recognize Israel’s right to exist. President Reagan, while agreeing with the position, noted that only the President can decide what the foreign policy position of the United States is or should be, and that section 1302 constitutes a “nonbinding (expression) of congressional views.”13 Constitutional signing statements almost invariably deal with some perceived encroachment upon executive prerogatives, but also may include issues of federalism and individual rights. Constitutional signing statements originate in the Office of Legal Counsel (OLC) which is located within the Department of Justice. Category Two—Political Signing Statements Political signing statements differ from constitutional signing statements in that the focus is not legal, although the statement may be structured that way. For example, as I will discuss in Chapter Six, President Clinton used a signing statement to oppose a provision of an authorizations law which sought to remove members of the military

12 13

Interpretations of Legislative Intent: An Executive Aggrandizement of Power.” Harvard Journal on Legislation. 24:363. 1987; Coopera, Phillip J. PL 99-83. August 8, 1985. Reagan, Ronald. “Statement on Signing the International Security and Development Cooperation Act of 85.” Weekly Compilation of Presidential

7

Chapter Three-A Macro-view of the Signing Statement who were infected with the HIV virus. There was no constitutional precedent for his reasoning, and in reality, he was reaching out to an important constituency during an election year. The political signing statement is normally meant as a directive to executive branch agencies on how they are supposed to carry out a particular statute.14 It is important to note, as I will show later, that often times the political signing statement can appear very similar to the constitutional signing statement in that the president will make constitutional arguments that in reality are done for purely political reasons. The origins of the political signing statement can either stem from executive branch agencies or from the White House staff. As I will discuss below, there are times when the politics can overrule the constitutional objections made by the Office of Legal Counsel. The constitutional and political signing statements have also taken on added significance, and attention, following the Reagan administration’s 1986 move to have them added to the USCCAN. In addition to serving as executive branch guidance, many legal scholars have also noted that they have been meant to serve as guides to

14

Documents. Washington: United States Government Printing Office. August 8, 1985. See, for example, Zinn, Charles J. "The Veto Power of the President." Committee on the Judiciary, House of Representatives. Washington: United States Government Printing Office. 1951. pg. 24.

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Chapter Three-A Macro-view of the Signing Statement judicial interpretation of statutes.15 Judges often time will look to other political documents16 when it is unclear what the Congress intended the meaning of a statute to be.17 Quite often a tug of war breaks out over whether or not to attach a statement to a bill the president is signing. More often than not, the battle is between the Office of Legal Counsel and the politicos in the White House. For example, in signing the Immigration Reform and Control Act of 1986,18 President Reagan made a number of statements that were highly political and drew a great amount of criticism from members of Congress and the press (discussed further in Chapter Four). Douglas Kmiec, who worked in the Office of Legal Counsel during this period of time, argued that the bill was 15

Carroll, Kristy; May, Christopher; Garber, Marc N. and Kurt A. Wimmer; Popkin, William D.; Boulris, Mark Johnson. “Judicial Deference to the Chief Executive’s Interpretation of the Immigration Reform and Control Act of 1986 Antidiscrimination Provision: A Circumvention of Constitutionality Prescribed Legislative Procedure.” University of Miami Law Review. 41:5. 1987; Kmieca, Douglas W. “Judges Should Pay Attention to Statements by the President.” The National Law Journal. November, 1987. 16 McKinney, Richard J and Ellen Sweet.. “Federal Legislative History Research: A Practitioner’s Guide to Compiling the Documents and Sifting for Legislative Intent.” Law Librarians' Society of Washington, D.C. http://www.llsdc.org/sourcebook/fed-leg-hist.htm. Accessed June 10, 2002. 17 How much extra examination the courts do tends to vary. By the end of the Carter administration, the Supreme Court took an expansive examination of the legislative history of a given statute, yet by the end of the 1980s, use of legislative history had greatly contracted. See Carro, Jorge L. and Andrew R. Brann. “The U.S. Supreme Court and the Use of Legislative Histories: A Statistical Analysis.” Jurimetrics Journal. 22:294. Spring, 1982; Wald, Patricia M., “The Sizzling Sleeper: The Use of Legislative History in Construing Statutes in the 1988-89 Term of the United States Supreme Court” American University Law Review. 39:277. 1990; Koby, Michael H. “The Supreme Court’s Declining Reliance on Legislative History: The Impact of Justice Scalia’s Critique.” Harvard Journal on Legislation. 36:369. 1999. 18 PL 99-603. November 6, 1986.

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Chapter Three-A Macro-view of the Signing Statement “hijacked” by a few people in other divisions within DOJ and at the [White House] who wanted, somewhat imprudently in my judgment, to express political rather than legal concerns that did not fairly reflect, at least in part, either legislative intent or a constitutional evaluation that necessarily must qualify that intent.”19 In another instance of the battle over a signing statement between the OLC and those concerned with politics within the White House, Douglas Kmiec recounts the reauthorization of the “Whistleblower Protection Act”, which had originally been passed as part of the “Civil Service Reform Act of 1978”.20 Kmiec notes that during the original debate over whether to sign the act, then head of the OLC John Harmon protested that the provisions for a special counsel was an unconstitutional infringement upon the president’s removal power as well as a violation of the separation of powers doctrine.21 In 1986, the House moved to authorize additional powers to the special to give it the authority to sue executive branch agency officials independent of the wishes of the attorney general or the president. The OLC argued that this would “place the President in an untenable position of speaking with two conflicting voices in federal courts.”22 Further, the OLC objected to a provision by the House that

19 20 21

22

Email interview with Douglas Kmiecb, April 23, 2001. Public Law 95-454. October 13, 1978. Kmiecc, Douglas W. “OLC’s Opinion Writing Function: The Legal Adhesive for a Unitary Executive.” Cardozo Law Review. 15:1-2. October, 1993. pg.340. Ibid. pg. 340.

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Chapter Three-A Macro-view of the Signing Statement allowed the special counsel to transmit materials to the Congress without review of the executive branch.23 Kmiec notes that OLC’s objections were never brought to the attention of the Congress because a few late-in-the-term Reagan OMB appointees apparently wanted to make the transition to the Bush administration. Thinking that a “kinder gentler” Bush would be more tolerant of legislative usurpation, these individuals informally signaled Congress that OLC’s constitutional concerns need not control the legislative outcome.24 Kmiec notes that when the “Whistleblower Protection Act of 1988” passed and was sent to the White House, he and others in the OLC were shocked to see the offending provisions still in the bill and recommended that President Reagan veto the bill. The members of the Bush administration who were worried that this could create an election year issue argued vigorously for the President to sign the law. In the end, Reagan pocket vetoed the bill and OMB had to admit to Congressional leaders that it had been less than forthcoming.25 The rhetorical26 signing statement generally does not make a legal or constitutional claim, nor is it intended to be a directive to

23 24 25 26

Ibid. pp. 340-41. Ibid. pg. 342. 342-43. The rhetorical importance to the presidency has been well documented by Tulis, Jeffrey. The Rhetorical Presidency. New Jersey: Princeton University Press. 1998 and Kernell, Samuel. Going Public: New Strategies of Presidential Leadership. California: University of California Press. 1997.

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Chapter Three-A Macro-view of the Signing Statement executive branch agencies, even though it is largely done for political reasons. The rhetorical strategy involves the president’s “attempt to mobilize political support by means of public comments.”27 In this type of statement, which constitutes the majority of all signing statements made, the president attempts to draw the public’s attention to something positive or negative largely to benefit his office, favored constituents, or fellow partisans. As Mark Killenbeck found in his analysis of presidential signing statements, that it is … difficult to believe that anything other than sheer politics motivates pronouncements like President Reagan’s statements regarding “overzealous and unnecessary regulation” of the steel industry, President Bush’s pronouncement that “the chief highlight” of the Energy Policy Act of 1992 is that “Government will serve as the partner of private enterprise, not as its master,” or President Clinton’s declaration that “it was America’s families who have beaten the gridlock in Washington to pass” the Family and Medical Leave Act of 1993.”28 The next step in this chapter will be a brief discussion of how signing statements fit in with other type of presidential powers. It can be confusing to discern how a signing statement differs from an executive order, proclamation, or national security directive. The signing statement, which bears a great deal of similarities to all of

27

28

Zernicke, Paul Haskell. “Presidential Roles and Rhetoric.” Political Communication and Persuasion. Volume 7. 1990. pg.231. Killenbeck, Mark R. pp. 273-74.

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Chapter Three-A Macro-view of the Signing Statement these, tends to be the black sheep of presidential power. It exists, it is significant, but it is mostly unexplored. Presidential “Power”Tools The more famous of the powers (or presidential “tools”29) mentioned above is the executive order. According to Kenneth Mayer, the executive order is a “directive issued by the president, directing the executive branch in the fulfillment of a particular program, targeted at executive branch personnel and intended to alter their behavior in some way and published in the Federal Register.

30

It has

only been relatively recently that executive orders were even documented, but their existence stretches deep into presidential history. The target of the executive order is clearly the executive branch, in which government officials are instructed to “take action, change their behavior, or cease some activity in which they are currently engaged.”31 The executive order traces its root to the “Take Care” clause of the Constitution and has been upheld by the Supreme Court as having the effect of law. Executive orders do not have to be codified to have the force of law. As discussed by Phillip Cooper, when George H.W. Bush imposed a 90-day moratorium on the issuance of new regulations as well as a review of existing regulations to 29

30

See Cooperb, Phillip J. “Power Tools for an Effective and Responsible Presidency.” Administration and Society. 29:5. November, 1997 for a discussion of the variety of “tools” that presidents utilize from their “toolbox.” Mayer. pg. 34.

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Chapter Three-A Macro-view of the Signing Statement determine which were burdensome, he did so in the form of a memoranda. This memorandum had the effect of an executive order, even though it was not called one nor codified as one.32 In fact, as Cooper argues, the memorandum, or explanation of the executive order, can sometimes be more significant than the executive order itself, as was the case in the memorandum issued by President Reagan explaining the regulatory review process embodied in Executive Order 12498 (discussed in the next chapter).33 The presidential proclamation is “generally issued to affect the activities of private individuals.”34 This makes them distinct from executive orders, which are directed primarily at those working in the government.35 In many instances, the proclamation is ceremonial, such as the Thanksgiving Proclamation. However, many have the force of law, such as Washington’s Neutrality Proclamation36 during the war between Britain and France, or Lincoln’s proclamations during the Civil War suspending habeas corpus relief (discussed in the last chapter).37 As Phillip Cooper notes, because the proclamation is

31

Cooperb, pg. 529. Ibid. pg. 529. 33 Ibid. pg. 529. 34 Fisher, Louis.a President and Congress: Power and Policy. New York: The Free Press. 1972. pg. 49. 35 Cooperb. pg. 529. 36 Ibid. pg. 529. 37 Fisher. pg. 49. 32

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Chapter Three-A Macro-view of the Signing Statement directed towards individuals outside of the government, they are more limited than the executive order because The chief executive cannot…merely assert general authority to control the executive branch under Article II of the Constitution as a basis for issuing a proclamation affecting those outside government. Moreover, it is much easier to mount a challenge to a proclamation than to an executive order because those affected can more easily gain standing to sue.38 Finally, National Security Directives are meant to “stimulate policy development, announce presidential decisions, and guide policy implementation.”39 They prove to be difficult to define, much like the signing statement, because the “presidents have learned since at least the Truman administration that, by using labels other than those specified in the Federal Register Act, they can avoid publication of statements issued with the formal authority of the presidency.”40 The fact that presidents call the directive by different names has made it difficult for members of Congress and scholars to track the development and significance of the directive, but what is known is that they “have been employed for significant policy making that could not be principally classified as execution of policy.”41 Further, even

38

Cooperb. pg. 529. Digital National Security Archive. “Presidential Directives on National Security from Truman to Clinton.” http://nsarchive.chadwyck.com/pdessayx.htm. Accessed 6/13/02. 40 Cooperb. pg. 529. 41 Ibid. pg. 529. 39

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Chapter Three-A Macro-view of the Signing Statement though they mostly involve issues of foreign policy, they have been known at times to affect domestic policy. Phillip Cooper references a GAO report that studied 247 National Security Directives from Kennedy through Reagan and found that nearly a quarter (22%) dealt with issues involving domestic policy—that is, either ordered the implementation of a particular policy or committed resources to a particular policy.42 The Department of Housing and Urban Development (HUD) in the Reagan administration, for example, was subjected to the Hostile Contacts Directive despite the difficulty in understanding “how any employee in HUD could be coerced by a foreign agent into disclosing the secrets of HUD successes.”43 What this shows is that president’s have become quite innovative when it comes to implementing their policy preferences. The signing statement is one “tool” among many that a president can rely upon that gives him or her flexibility in responding to the external political environment. The Process of the Signing Statement Before discussing how signing statements have been used over the course of history, it will be useful to explain how a signing statement gets attached to a particular piece of legislation. That decision takes place long before the bill is actually signed into law. 42

Ibid. pg. 529.

16

Chapter Three-A Macro-view of the Signing Statement Once a bill reaches the White House, facsimiles are dispersed to the Office of Legal Counsel and the Office of Management and Budget.44 The Office of Legal Counsel examines the bill for constitutional defects and makes recommendations to the President on whether to sign the bill or veto it.45 In the event of signing the bill, the OLC may draft a signing statement on how the bill can avoid the constitutional problem(s).46 The process of going to the Office of Management and Budget has been “relatively stable since its development during the Franklin Roosevelt administration,” where a bill would go to the Bureau of the Budget.47 Additionally, since 1979 the Office of Management Budget coordinates and centralizes all enrolled bills that come to the White House. This functions serves to (a) assist the President in developing a position on legislation, (b) make known the Administration's position on legislation for the guidance of the agencies and information of Congress, (c) assure appropriate consideration of the views of all affected agencies, and (d) 43 44

45

46 47

Ibid. pg. 529. The original bill, with the signatures of the presiding officers of both Houses of Congress remains with the White House. Shanks, Robert B. "Office of Legal Counsel—The President’s ‘Outside" Law Firm" in The Department of Justice Manual. New Jersey: Prentice Hall. 1990-91. pg. 143. Ibid. Wayne, Stephen J., Richard L. Cole, and James F.C. Hyde, Jr. “Advising the President on Enrolled Legislation: Patterns of Executive Influence.” Political Science Quarterly. 94:2. pp. 304-05.

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Chapter Three-A Macro-view of the Signing Statement assist the President with respect to action on enrolled bills.48 Currently, the Legislative Reference Division within the OMB requests each agency that has an interest in the bill to submit its analysis and recommendations to the OMB within 48 hours after receiving the bill.49 If the agency wishes to add a signing statement, it is responsible for preparing the draft of the statement for consideration by the OMB and the White House staff.50 All of the enrolled bills in which an agency wishes to attach a signing statement to are sent to the OMB before going to the President. The only exception to signing statements that is either added or subtracted without OMB approval are those that are added or subtracted by the White House staff.51 The OMB, often in conjunction with the White House staff, determines whether the signing statement rises to the level of significance of being added to the bill. Often times, multiple agencies will be involved in a particular piece of legislation. In those instances, OMB will try to consolidate and synthesize the draft statements, which it sends back to the interested agencies for their approval. After the 48 49

50

Office of Management and Budget Circular A-19. September 20, 1979 Daniels, Mitchell E. “Memorandum for the Heads of Departments and Agencies: Legislative Coordination and Clearance.” http://www.whitehouse.gov/omb/memoranda/m01-12.html Accessed May 24, 2002. Ibid.

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Chapter Three-A Macro-view of the Signing Statement OMB has given the green light for a signing statement, usually on the fifth day of the 10-day period in which the president must act, it then sends the bill on to the White House staff.52 All signing statements must be approved by the White House before they are attached to a bill.53 A diagram of the process is provided in Appendix 3.2. The History of the Signing Statement I would next like to turn focus attention to the use of the signing statement over time. This will be important to give a sense of context in how the signing statement has developed. After this I will look at what, if any patterns have emerged with the presidential use of the signing statement. I will then conclude by setting up the context for Chapter Four. As noted earlier, the first signing statements were issued by President James Monroe. In one instance, President Monroe issued a statement regarding interpretation of a law he had signed a month earlier. The law both reduced the size of the army and laid out how the president would select new officers.54 Monroe had gotten criticism from Congress for not abiding by the congressional demand to appoint officers, instead arguing in his signing statement that the president, not the Congress, had the constitutional responsibility of appointing 51

52 53

Phone interview with Jim Yokes, representative in the Legislative Reference Division of the Office of Management and Budget. May 24, 2002. Wayne, Stephen et. al. pp.304-05. Ibid.

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Chapter Three-A Macro-view of the Signing Statement officers.55 Monroe in this instance was acting true to his responsibilities as a co-ordinate branch of government. As Christopher May notes, “Monroe appears to have implemented the statute in good faith, even though some members of Congress disagreed with his interpretation of it.”56 Andrew Jackson is credited by most scholars as issuing the first signing statement simply because his “sparked a controversy” with the Congress.57 In 1830, Jackson approved an appropriations bill that involved internal improvements, something he objected to. The improvements in question had to deal with road examinations and surveys, so in his signing statement he noted that the road in question, which was to span from Detroit to Chicago, was not to extend beyond the Territory of Michigan.58 The House of Representatives sharply criticized Jackson, noting that what he had done amounted to an “item veto” of the legislation.59Nonetheless, Jackson’s directive was implemented and the road did not extend beyond the Michigan Territory.60

54 55 56 57

58

59 60

May, Christopher. pg.116. Ibid. pg. 116. Ibid. pg. 116. Most scholars, when they begin with the Jackson administration, refer to Louis Fisher. See Fisher, Louis.b Constitutional Conflicts between Congress and the President. Kansas: University of Kansas Press. 1991. pg. 128. Waites, Bradley. “Let Me Tell You what You Mean: An Analysis of Presidential Signing Statements.” Georgia Law Review. 21:755. Winter, 1987. pg.777. Fisher.b pg. 128. May notes that after Jackson had left office that the road did extended beyond the Michigan Territory, into Indiana. May, pp. 84-85.

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Chapter Three-A Macro-view of the Signing Statement President John Tyler bore the full brunt of a rebuke from the Congress for issuing, what was, a rather timid signing statement. President Tyler disagreed with a portion of a bill dealing with the apportionment of Congressional districts. Tyler wrote: In approving this bill I feel it due to myself to say, as well that my motives for signing it may be rightly understood as that my opinions may not be liable to be misconstrued or quoted hereafter erroneously as a precedent, that I have not proceeded so much upon a clear and decided opinion of my own respecting the constitutionality or policy of the entire act as from respect to the declared will of the two Houses of Congress.61 The House of Representatives would have none of it. In a sharp and lengthy protest (authored by John Quincy Adams62), A House Select Committee wondered why the President would add this extraneous document to the public record? The Committee argued: The private and personal interest of the president in the organization of the House of Representatives of the next Congress suggests motives on his part for desiring to influence that organization in the direction of his individual interest…63

61

Richardson, James D. Messages and Papers of the Presidents. Bureau of Natural Literature and Art. Volume 2. 1903. pg. 159. 62 McGreal, Paul E. "Unconstitutional Politics." Notre Dame Law Review. 76:519. January, 2001. 63 H.R. Rep. No. 909, 27th Congress, 2d Session. 1842.

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Chapter Three-A Macro-view of the Signing Statement The House concluded that President Tyler’s signing statement should "be regarded in no other light than a defacement of the public records and archives."64 Even though by the end of the nineteenth century the Supreme Court had recognized the right of the president to use a signing statement,65 and with the exception of some of the extraordinary measures taken by the Lincoln administration, most presidents shied from using the signing statement after the rebuke the House had given President Tyler. In the twentieth century, there was a greater tendency for the president to use the signing statement in all three of the ways I listed above, and in many instances to get the courts to recognize the president’s legitimate right to make the kinds of assertions that he makes in the signing statements. One such instance came when President Roosevelt signed the “Emergency Price Control Act of 1942”.66 The “Emergency Price Control Act” was designed to help stabilize the economy during the height of the Second World War. Roosevelt objected to a section of

64

Ibid. In La Abra Silver Mining Co. v United States (175 US 423) 1899, the Supreme Court noted that “it has properly been the practice of the President to inform Congress by message of his approval of bills, so that the fact may be recorded.” 66 56 Stat. 26, January 30, 1942. 65

22

Chapter Three-A Macro-view of the Signing Statement the bill that was a “protectionist measure for farmers”67 in the United States. Roosevelt stated: …there is nothing contained therein which can be construed as a limitation upon the existing powers of governmental agencies, such as the Commodity Credit Corporation to make sales of agricultural commodities in the normal conduct of their operations.68 Roosevelt further demanded that the provision be removed and if the Congress did not remove it, he would treat it as a nullity. Roosevelt had solicited and received advice from the Dean of the Oregon Law School regarding what powers were afforded him during a time of war, particularly what rights did he have to ignore sections of laws he determined interfered with the war effort. The Dean told him that “if you decide that a certain course of action is essential as a war measure, it supersedes congressional action.”69 The Congress yielded and the section was removed.70 An example of the courts supporting a presidential signing statement came in the Supreme Court case United States v Lovett.71 When Congress passed the “Urgent Deficiency Appropriation Act,

67

68

69 70 71

Monaghan, Henry P. "The Protective Power of the Presidency." Columbia Law Review. 93:1, January 1993. pg. 29. Roosevelt, Franklin D. “Statement on Signing the Emergency Price Control Act.” The Public Papers and Addresses of Franklin Delano Roosevelt. 1942 Volume. January 30, 1942. pg. 69. Monaghan, Henry P. pg. 29. Ibid. pg. 29. 238 US 303, 1946.

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Chapter Three-A Macro-view of the Signing Statement 1943”72, it attached a rider (section 304) that was aimed at punishing three federal employees, labeling them “irresponsible, unrepresentative, crackpot, radical bureaucrats.”73 When President Roosevelt was presented with the bill, he issued a signing statement condemning Section 304, but allowed the bill to become law because it funded nearly all governmental agencies. Roosevelt, who argued that this represented a bill of attainder, noted in his statement that the “rider is an unwarranted encroachment upon the authority of both the executive and the judicial branches under our constitution. It is not, in my judgement, binding on them.”74 Roosevelt, however, enforced the section of the bill and when the suit was brought against the government, Roosevelt sided with the plaintiffs and attacked the statute. Congress was forced to authorize a

72 73

74

57 Stat. 431, 450. In part, Section 304 read: "No part of any appropriation, allocation, or fund (1) which is made available under or pursuant to this Act, or (2) which is now, or which is hereafter made, available under or pursuant to any other Act, to any department, agency, or instrumentality of the United States, shall be used, after November 15, 1943, to pay any part of the salary, or other compensation for the personal services, of Goodwin B. Watson, William E. Dodd, Junior, and Robert Morss Lovett, unless prior to such date such person has been appointed by the President, by and with the advice and consent of the Senate: Provided, That this section shall not operate to deprive any such person of payment for leaves of absence or salary, or of any refund or reimbursement, which have accrued prior to November 15, 1943 . . . ." Roosevelt, Franklin D. “Statement on Signing the Urgent Deficiency Appropriation Act, 1943.” The Public Papers and Addresses of Franklin Delano Roosevelt. New York: Harper Brothers Publishing. 1943. pp. 385-86.

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Chapter Three-A Macro-view of the Signing Statement special counsel to submit an amicus curiae brief defending the statute. The Supreme Court sided with President’s Roosevelt statement that the Section 304 represented an unconstitutional bill of attainder and struck it down.75 President Truman used a couple of signing statements, later affirmed by the courts, to define ambiguous sections of the bills that protected a key constituency—labor. In signing the “Hobbs Bill”,76 Truman made a point of noting that nothing in the bill was “intended to deprive labor of any of its recognized rights, including the right to strike and to picket, and to take other legitimate and peaceful concerted actions.”77 The “Hobbs Bill” was created from an earlier vetoed act that contained the same language. As one legal scholar has suggested, “[b]oth statements were partisan attempts to assure interpretations favorable to labor.”78 The second statement, again aimed at labor, gave labor favorable treatment by defining an ambiguous term related to the “good faith” provisions of the “Portal to Portal Act”.79 Truman stated: I wish also to refer to the so-called “good faith” provisions of Sections 9 and 10 of the Act. It 75

76 77

78 79

In a gesture of coordinancy, the House Committee on Appropriations refused to carry out the Supreme Court’s order, but was overruled later by the full House. 60 Stat. 420 Truman, Harry S “Statement on Signing the Hobbs Bill.” Public Papers of the President. July 3, 1946. Washington: United States Government Printing Office. 1962. pg.337. Popkin, William D. fn 14. 61 Stat. 84

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Chapter Three-A Macro-view of the Signing Statement has been said that they make each employer his own judge of whether or not he has been guilty of a violation. It seems to me that this view fails to take into account the safeguards which are contained in these Sections. The employer must meet an objective test of actual conformity with an administrative ruling or policy. If the employer avails himself of the defense under these Sections, he must bear the burden of proof.80 Truman used the objective standards test, as he noted, because it shifted the burden of proof upon the employer. Truman’s definition of “good faith” would be the definition the courts would later use when challenges to the law were made.81 President Kennedy also used the signing statement to signal to Congress that he would not defend a law that contained a “separatebut-equal” provision in federal funding for “racially segregated hospitals.”82 Eventually the provision was struck down in the Court of Appeals without the administration’s defense of the provision.83 As noted above, the most common type of signing statement is the rhetorical signing statement. The purpose of the rhetorical signing statement is to either move public opinion in a manner that supports 80

Truman, Harry S “Statement on Signing the Portal to Portal Act. May 14, 1947.” Public Papers of the Presidents. Washington: United States Government Printing Office. 1963. pp. 243-44.. 81 Clifton D. Mayhew, Inc. v. Wirtz, 413 F.2d 658, 661-62 (4th Cir. 1969); EEOC v. Home Ins. Co., 672 F.2d 252, 264-65 (2d Cir. 1982); and Cole v. Farm Fresh Poultry, Inc., 824 F.2d 923, 928 (11th Cir. 1987). 82 Gussis, Chrysanthe. “The Constitution, the White House, and the Military HIV Ban: A New Threshold for Presidential Non-defense of Statutes.” University of Michigan Journal of Law Reform. 30:591. Winter/Spring, 1997. pg. 610. 83 Ibid. pg. 610.

26

Chapter Three-A Macro-view of the Signing Statement the president’s preferences, successes, and/or the successes of his copartisans; or, the purpose is used to show the president supports important constituents.84 In the first, two back-to-back presidential elections stand out. Referring to Appendix 3.3, the distribution of the rhetorical signing statement from 1932-2000 is recorded. In terms of proportion, the issuance of signing statements by President Ford stands out as the most by any president in any year before or since. President Ford issued 84 rhetorical statements in 1976, a whopping 93% of all statements issued. It wasn’t just that this was an election year, but it was one where Ford was battling the burden of a pardon as well as an “outsider, not tainted by politics” candidate in Governor Jimmy Carter. It appears that President Ford was doing his best to direct the press and the public’s attention away from the issue of the pardon and to the actions the president was taking on behalf of the American people. This course of action was not successful as President Ford lost the bid for election in 1976. In Jimmy Carter’s re-election bid, he too issued a staggering number of rhetorical signing statements, the most in real terms of any president before or since (89 or 88% out of 101). In the 1980 election 84

For example, Lyndon Johnson issued so many rhetorical signing statements because he felt that it fostered good legislative-executive branch relations. Johnson, Lyndon B. “Statement on Signing the Medicare Extension Bill.” Weekly Compilation of Presidential Documents. April 8, 1966. pg. 510.

27

Chapter Three-A Macro-view of the Signing Statement year, President Carter was hounded by the specter of the Iranian Hostage Crisis, and he too turned to the rhetorical signing statement in a bid to divert the nation’s attention away from his failure to retrieve the hostages and towards the actions he was taking on behalf of the American people. Like Ford before him, President Carter lost his bid for re-election. The other use of the rhetorical signing statement lies in its value for constituent service. It is often the case that the rhetorical signing statement serves the political purpose of appeasing a valuable constituent that has failed to win concessions during the legislative process. An example of this can be found in the case of environmentalists who fiercely lobbied the 104th Congress to defeat a rider to the Omnibus Consolidated Appropriations Act, 199785 that amended the Endangered Species Act and the National Environmental Policy Act. When they failed to win in the Congress, they were pleased86 to have obtained a paragraph in the bill signing statement by the President.87

85 86

87

Public Law No. 104-208. A statement on the Defenders of Wildlife webpage announcing the concession read: “GREEN, Defenders of Wildlife and the Endangered Species Coalition mounted a fierce battle to stop the waiver that failed, but elicited a paragraph in the President’s signing statement regretting that the provision remained in the bill.” http://198.240.72.81/104th.html. Accessed June 19, 2002. Clinton, William Jefferson. “Statement on Signing the Omnibus Consolidated Appropriations Act, 1997.” Weekly Compilation of Presidential Documents. Washington: United States Government Printing Office. September 30, 1996. Even though this was a political gesture to an important constituent of the Clinton administration, it is not classified as a political signing statement simply because

28

Chapter Three-A Macro-view of the Signing Statement More typical of the rhetorical signing statement involves the president, particularly during an election year, beating up on his or her political opponents. An instance of this can be found in the critical election year of 1948 when Truman issued a number of scathing attacks on his opponents in the Congress. For example, in signing the “Displaced Persons Act,88 Truman began the bill by stating that “it is with great reluctance that I have signed S.2242…”89 He continues later in the bill by observing that “…the bad points of the bill are numerous. Together they form a pattern of discrimination and intolerance wholly inconsistent with the American sense of justice.”90 In a later bill signing ceremony, President Truman was more pointed. In signing a housing bill,91 Truman blasted Republicans for calling it a “housing bill” when in fact it was “nothing at all.”92A bit later, Truman pointed out the failures of the bill and blamed Republican leadership, labeling the bill the “teeny-weeny housing

88 89

90 91 92

it does not purport to alter the language in any way that would benefit the environmental groups. It simply pledges the administration’s continued support, giving environmental groups something to go back and tell their members regarding gains in the environmental battle. Public Law 744, 62 Stat. 1009. Truman, Harry S “Statement on Signing the Displaced Persons Act.” Public Papers of the President. June 25, 1948. Washington: United States Government Printing Office. 1964. pg.382. Ibid. pg. 383. Public Law 864, 62 Stat. 1206. Truman, Harry S “Statement on Signing Amendments to the Servicemen’s Readjustment Act of 1944.” Public Papers of the President. June 25, 1948. Washington: United States Government Printing Office. 1964. pg. 391.

29

Chapter Three-A Macro-view of the Signing Statement bill.”93 He concluded the ceremony by noting that “there can be no excuse for such slipshod legislation, thrown together only a few hours before adjournment.”94 Gerald Ford not only had a bill signing ceremony to attract attention to his attacks on Congress, but he also had his signing ceremony on a prime time national broadcast. In signing the Tax Reduction Act of 1975,95 President Ford blasted members of Congress. In particular, he was addressing the problems of extraneous riders added to the bill, creating a sloppy piece of legislation that he was forced “to take it or leave it.”96 Ford went on to argue that he was confident a veto of the bill would be sustained, but that he was “by no means sure that this Congress would send” him a better bill.97 At the close of his evening speech to the nation, Ford ended with an appeal to the public, in the truest sense of what the rhetorical strategy is all about, to contact members of the Congress to let them know that their constituents are frustrated with the pork in important pieces of legislation.98

93 94 95 96

97 98

Ibid. pg. 392. Ibid. pg. 392. Public Law 94-12. Ford, Gerald. “Statement on Signing the Tax Reduction Act of 1975.” Weekly Compilation of Presidential Documents. March 29, 1975. pg. 320. Ibid. pg. 320. Ibid. pg. 322. Ford even noted that if he “were still in the House of Representatives, [he] would have opposed extraneous amendments and would have voted to send this bill back to committee for further cleaning up.” pg. 320.

30

Chapter Three-A Macro-view of the Signing Statement In perhaps one of the more interesting rhetorical statements, President Clinton makes a similar claim over a national missile defense system that both President’s Reagan and Bush made, but made it in a way that was contrary to the desires of Reagan and Bush. Presidents Reagan and Bush pushed for a missile defense program (commonly referred to as “Star Wars”) despite the treaties the United States had with Russia and over the objections of the Democratically-controlled Congress. It was Reagan and Bush’s contention that the president had the prerogative to decide what the foreign policy of the United States should be, and if the president decided in favor of a national missile defense system despite our international treaty obligations, then so be it. In 1999, President Clinton signed the “National Missile Defense Act of 1999”.99In the act, the President puts the Congress on record as supporting international arms negotiations as a way to prevent the missile defense program from proceeding. Clinton stated that “…section 3 puts the Congress on record as continuing to support negotiated reductions in strategic nuclear arms, reaffirming my Administration's position that our missile defense policy must take into account our arms control and nuclear nonproliferation objectives.”100 Prior to that it was the Democrats in Congress who attempted to stall 99

Public Law No. 106-38. July 22, 1999. Clinton, William J. “Statement on Signing the National Missile Defense Act of 1999.” Weekly Compilation of Presidential Documents. http://frwais.access.gpo.gov August 2, 1999. Accessed April 10, 2002.

100

31

Chapter Three-A Macro-view of the Signing Statement the implementation of the program by claiming it violated international treaties the United States held with the Russians. Now, it was the Republicans in Congress who were pushing for a national missile program and a Democratic President stalling the implementation of the program. Even worse for the Republicans was President Clinton noting how the Congress supported his position on the missile defense program! The Effect on the Signing Statement How does the political environment affect, if at all, the use of the signing statement? In this section of the chapter I will look at how elections affect the use of the signing statement, how public opinion affects the use of the signing statement, and how the political context from Nixon-Clinton effected the use of constitutional and political signing statements. Elections I first turn our attention to the impact of elections on the use of the signing statement. I argue that during an election year (federal), the president will be more inclined to use the signing statement than during off-election years. He will, for example, turn to political signing statements to increase his value when he runs for re-election as it gives him something to run on. Rhetorical signing statements will aid the president and his co-partisans during presidential and mid-term

32

Chapter Three-A Macro-view of the Signing Statement election years because the president, who is inherently newsworthy, can use the occasion of the bill signing statement to praise his administration’s record, to praise co-partisans in Congress, and to attack his opponents, as I illustrated above. Turning to Appendix 3.4, I tested the argument that an election year does make a difference on the use of the signing statement. I created a dummy independent variable in which “0” represented an off-election year and “1” represented an election year. The output of the results show significance at the.05 level. Presidential Approval A second question to consider is what affect presidential approval has on the use of signing statements of all forms? The argument in this instance is that the higher the level of public approval, the less likely the need to use signing statements. A test of public approval101on the use of signing statements from 1945-2000 yielded poor results, as Appendix 3.5 illustrates. In none of the results is the variance explained to any degree of satisfaction nor do the results of the F-tests yield statistically significant numbers. It would appear that public approval has little to do with the use of presidential signing statements of any variety.

101

Public approval was taken from Gallup opinion polls, 1945-2001.

33

Chapter Three-A Macro-view of the Signing Statement But what happens when the years are restricted to those between 1968-2001? A major portion of my argument in this dissertation is that the use of the signing statement, particularly the constitutional and political signing statements, became more prevalent in the years from the Nixon administration through the Clinton administration. Not only did the political terrain become more difficult, but the Vietnam War, coupled with Watergate, dragged down the public’s faith in institutions of government in general and in the presidency in particular.102 A test of public approval of the presidency on constitutional, political, and rhetorical signing statements during this more restricted period yielded some interesting findings, as illustrated in Appendix 3.6. The effects that public approval has upon constitutional and political signing statements are significant at the .05 level (.003 for constitutional and .02 for political) and insignificant for rhetorical (.09). In the case of constitutional signing statements, an adjusted R squared yields an explanation of nearly a quarter of the variance (22%), and nearly 15% of the variance (.14) for political signing statements. Why would it be significant for constitutional and political, but not rhetorical during this period of time? If my argument is correct, and this appears to be an indication in that direction, during this period of time the president was unable, in 102

The mean approval rating from 1945-1967 was 56% compared to 54% from

34

Chapter Three-A Macro-view of the Signing Statement any systematic fashion, to use public opinion to check the encroachment of Congress or to succeed in advancing the president’s policy preferences. As I indicated in the previous chapter, and I will argue in greater detail in the next chapter, during this period of time there was a number of high profile events (Watergate, Iran-Contra) that moved the public to call for checks on presidential power (independent counsel statute, War Powers Act, congressional oversight, etc.). Further, the president found it more to his advantage to utilize the bureaucracy rather than public opinion to advance his policy preferences. If this argument is correct, then the president should see little advantage in turning to public opinion to either help him check congressional encroachments or to help him move his policy preferences. Finally, looking specifically at the use of constitutional and political signing statements from FDR through Clinton, Appendix 3.7 illustrates the steady climb of each over time, with a dramatic leap from Carter to Reagan. In the next Chapter, I will explain why that leap was made. As a preview, I return again to the difficult terrain that the president had to navigate during the 1970s. Even though the difference in the use of the signing statement did not increase substantially from FDR-Carter, it did increase. The important point

1968-2001.

35

Chapter Three-A Macro-view of the Signing Statement that I wish to make is that during this period, the Unitary Executive was incubating. President’s Nixon, Ford, and Carter were all laying the ground work for the Reagan administration. Hence the Reagan administration seized upon the vigorous use of the signing statement, particularly the constitutional statement, to help it solidify the protection of his office and control over the executive branch. Turning our attention to Appendix 3.8, I test the argument that a combination of public approval and support for the president in Congress103 during the period Nixon through Clinton will show that the troubled political environment yielded an increase in the use of political and constitutional signing statements. The tests of the two variables are all significant at the .05 level and the adjusted R squared shows that these two variables alone account for nearly 40% (.38) of the variance. This simply confirms what the qualitative analysis will show in the next chapter—president’s from Nixon through Clinton had a difficult time protecting their powers as well as advancing their policy preferences. This chapter set out to provide a context that will allow me to demonstrate how and why the signing statement is important. This chapter was important in providing the universe of signing statements,

103

Support scores were taken from the Congressional Quarterly Almanac. The scores are based on all roll call votes on which members were asked to vote “yea” or “nay.”

36

Chapter Three-A Macro-view of the Signing Statement in describing how signing statements can be categorized, and by showing what patterns have emerged regarding their importance in relation to an election year, public opinion, and support in Congress. The next chapter will explain how the Unitary Executive came about and was centralized in the Reagan administration. From that chapter forward I mostly focus on the constitutional and political signing statements, as they represent the use of “hard” power by the president and most directly go to the core of my argument regarding the Unitary Executive.

37

Chapter Three-A Macro-view of the Signing Statement Appendix 3.1 Presidential Signing Statements—Washington through Clinton President Washington Adams Jefferson Madison Monroe Adams JQ Jackson Van Harrison Tyler Polk Taylor Fillmore Pierce Buchanan Lincoln Johnson A Grant Hayes Garfield Arthur Cleveland Harrison Cleveland McKinley RooseveltTR Taft Wilson Harding Coolidge Hoover Roosevelt F Truman Eisenhower Kennedy Johnson L Nixon Ford Carter Reagan Bush Clinton Total

Constitutionally based 0 0 0 0 0 0 1 0 0 1 0 0 0 0 1 1 2 1 0 0 1 1 0 0 0 0 0 1 0 0 1 0 3 9 1 11 6 10 24 71 146 105 397

Political 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 0 1 0 0 0 0 0 0 0 0 0 1 0 0 0 0 3 7 7 0 2 2 0 8 23 30 21 106

38

Rhetorical 0 0 0 0 0 0 1 0 0 0 0 0 0 0 0 3 0 5 0 0 0 0 0 0 0 1 1 6 0 0 11 48 108 129 79 289 181 120 215 182 38 265 1594

Total 0 0 0 0 2 0 2 0 0 1 1 0 0 1 1 4 3 6 0 0 5 4 0 0 0 1 2 7 0 0 12 51 118 145 80 302 169 130 247 276 214 391 2175

Chapter Three-A Macro-view of the Signing Statement

Appendix 3.2 How a signing statement is attached to a bill

Enrolled Bill

White House

Congress

DOJ

OLC

Enrolled Bill OMB OIRA

OLA

Interested Agencies

39

White House Staff

Chapter Three-A Macro-view of the Signing Statement Appendix 3.3

The Distribution of Rhetorical Signing Statements, 1932-2000.

Rhetorical Statements, by Year 100

90

80

70

Number

60

50

Rhetorical Statements, by Year

40

30

20

10

0 1932 1937 1942 1947 1952 1957 1962 1967 1972 1976 1981 1986 1991 1996 Year

40

Chapter Three-A Macro-view of the Signing Statement Appendix 3.4 Effect of Elections on the Use of Signing Statements, 1932-2000.

Signing Statements, (1932-2002)

No Election (N=34)

Electi on (N=3 4)

Standard Deviation

Standard Deviation

df

fscore

Sig. Level

14.4658

29.9515

66

18.41 9

.000

41

Chapter Three-A Macro-view of the Signing Statement Appendix 3.5

Ordinary Least Square Models of Public Approval on Political, Constitutional, and Rhetorical Signing Statements, 1932-2000. Political Signing Statements (n=56)

Standar d Error

10.18

R2

.04

Adjuste d R2

.03

F

2.76

df Sig. F

55 .10

Constitutional Signing Statements (n=56)

Standar d Error

3.05

R2

.03

Adjuste d R2

.02

F

2.13

df Sig. F

55 .14

42

Chapter Three-A Macro-view of the Signing Statement

Appendix 3.5 (cont.)

Ordinary Least Square Models of Public Approval on Political, Constitutional, and Rhetorical Signing Statements, 1932-2000.

Rhetorical Signing Statements (n=56)

Standar d Error

21.13

R2

.02

Adjuste d R2

.01

F

1.66

df Sig. F

55 .20

43

Chapter Three-A Macro-view of the Signing Statement Appendix 3.6

Ordinary Least Square Models of Public Approval on Political, Constitutional, and Rhetorical Signing Statements, 1968-2000.

Political Signing Statements (n=33)

Standar d Error

10.49

R2

.24

Adjuste d R2

.22

F

10.25

df Sig. F

32 .003

Constitutional Signing Statements (n=33)

Standar d Error

3.45

R2

.17

Adjuste d R2

.14

F

6.5

df Sig. F

32 .015

44

Chapter Three-A Macro-view of the Signing Statement

Appendix 3.6 (Cont.)

Ordinary Least Square Models of Public Approval on Political, Constitutional, and Rhetorical Signing Statements, 1968-2000.

Rhetorical Signing Statements (n=33)

Standar d Error

22.13

R2

.08

Adjuste d R2

.05

F

2.99

df Sig. F

32 .09

45

Chapter Three-A Macro-view of the Signing Statement

46

Chapter Three-A Macro-view of the Signing Statement Appendix 3.7

Signing

Statements,

FDR-Clinton

160

140

120

Number

100

Constitutional

80

Political

60

40

20

0 Roosevelt F

Eisenhower

Johnson L

Ford President

47

Reagan

Clinton

Chapter Three-A Macro-view of the Signing Statement Appendix 3.8

Ordinary Least Square Models of Public Approval and Support in Congress on the Use of Political and Constitutional Signing Statements. Political Signing Statements (n=33)

Standar d Error

9.39

R2

.41

Adjuste d R2

.38

F

10.86

df Sig. F

32 .0002

Constitutional Signing Statements (n=33)

Standar d Error

3.2974507 7

R2

.27

Adjuste d R2

.22

F df Sig. F

5.6122937 5 32 .008

48

Chapter Four—The Institutionalization of the Signing Statement Chapter 4 The Institutionalization of the Signing Statement The Reagan administration gets a great deal of credit for centralizing presidential power. When Jimmy Carter left office, many bemoaned an “imperiled” presidency1 that was frozen by interest group politics and by the proverbial train wreck that was Watergate. The Reagan administration brought the hostages home, it reigned in the bureaucracy, and it stood firm against the Soviet Union. And with respect to the melding of the Unitary Executive and the signing statement, the Reagan administration gets credit for both of these as well. To be sure, the Unitary Executive jelled during the Reagan administration. OMB administrative control coupled with aggressive defense of the executive prerogatives by the Department of Justice led many scholars to conclude a rebirth in executive power. 2 But often

1

2

After Watergate and the publication of Arthur Schlesinger’s The Imperial Presidency Boston, Houghton Mifflin, 1973, the public and the Congress sought to reign in presidential power. The presidencies of Ford and Carter caused many to worry that the presidency was hobbled to the extent that the separation of powers was tilted dangerously towards the Congress. See, for example Genovese, Michael A. The Power of the American Presidency: 1789-2000. Oxford, 2001. Chapter 7. The term, “imperiled presidency” was highlighted by Gerald Ford, who proclaimed in a 1980 interview for “Time” magazine that "[We] have not an imperial presidency but an imperiled presidency. Under today's rules... the presidency does not operate effectively... That is harmful to our overall national interests". Wasser, Hartmut. “Politics and Politicians in Current Democratic Systems or: Democracy and its Discontents.” A paper presented at Democracy and the New Millennium International Conference Malibu, California October 2000. http://www.civiced.org/german_conference2000_wasser.html. Accessed 7/16/02. Ironically, this conclusion is shared by all but those who served in the Reagan administration. See, for example, Crovitz, L. Gordon and Jeremy A. Rabkin. The Fettered Presidency: Legal Constraints on the Executive Branch. Washington:

overlooked in the story is the work done, largely by the Ford and Carter administrations, to lay the foundations of executive power that the Reagan administration so successfully built upon. Development of the Unitary Executive—Ford and Carter The 1970s forced the executive to look toward extraordinary powers to advance its policy preferences as well as to protect its prerogatives. Beginning with the Ford administration and then continuing through the Carter administration, the Office of Legal Counsel aggressively asserted the president’s constitutional right not to enforce legislation it deemed to be unconstitutional, even though the president signed the legislation into law. The Ford administration was emboldened by a number of Supreme Court decisions that found sex-based distinctions in the Social Security Act to be unconstitutional. After the Supreme Court made its decision, the Justice Department scoured through other portions of the bill, looking for those the Court found unconstitutional, and then declined to enforce them.3 One example of how the signing statement became institutionalized within the Department of Justice came after the

3

The American Enterprise Institute. 1989; and Eastland, Terry. Energy in the Executive: The Case for the Strong Presidency. New York: Free Press. 1992. Easterbrook, Frank. “Presidential Lawmaking Powers: Vetoes, Line Item Vetoes, Signing Statements, Executive Orders, and Delegations of Rulemaking Authority.” Washington University Law Quarterly 68:533-560 1990. pg. 537.

2

passage of the “Federal Advisory Committee Act” (FACA)4 and the subsequent objections to a provision of the Act from the Nixon administration through the Reagan administration. During the Nixon administration, the Congress had passed the FACA, which was meant to open up the presidential advisory process to public scrutiny. One organization that was effected by the act was the American Bar Association’s Standing Committee on the Federal Judiciary. The Committee, since 1946, had been instrumental in assisting the president on judicial selections to the federal bench.5 After the passage of the Act, the Nixon Justice Department informed the Chairman of the American Bar Association’s Standing Committee on the Federal Judiciary that, in the view of the Department of Justice, the FACA applied to the ABA Committee, and that at best, it might be able to approach the Congress for an exemption, which was not taken kindly by the ABA.6 The ABA threatened to stop its participation in the judicial selection process, forcing the Department of Justice to look at the “possible unconstitutionality of the legislation as it applied to this particular Presidential function.”7 The Department of Justice then

4 5

6 7

Public Law No 92-463 (1972). Bybee, Jay S. “Advising the President: Separation of Powers and the Federal Advisory Committee Act.” Yale Law Journal. 104:51. October, 1994. pg. 76. Ibid. pg. 77. Ibid. pg. 78.

3

advised the ABA that “it would proceed on the assumption that FACA did not apply to the Standing Committee.”8 During the Ford administration, the Department of Justice aggressively interpreted the Act to exclude the ABA, with Attorney General Edward Levi issuing an opinion to President Ford that the requirement that the ABA submit to an open meeting violated the separation of powers doctrine.9

Every subsequent administration

refused to extend the FACA to the Standing Committee on the Federal Judiciary, and during the Reagan administration, the Supreme Court heard the matter of Washington Legal Foundation v. U.S. Department of Justice and Public Citizen v Justice Department

10

challenging the

executive’s interpretation of the Act. In a brief filed with the Court, Solicitor General Charles Fried argued that “since 1974, the Justice Department has taken the position that the law does not apply to the ABA.”11 The Supreme Court agreed with the executive branch and upheld its interpretation.12

8

Ibid. pg. 78. Easterbrook. pg. 537. 10 88-494 and 88-429, 1988. 11 Mauro, Tony. “Well Recuse Me, Just Don’t Ask Why.” Legal Times. December 12, 1988. Pg. 8 12 The case was not resolved without a bit of controversy. During the Ford administration, the Assistant Attorney General who worked on the Ford opinion was Antonin Scalia. When the Supreme Court heard the case, Solicitor General Fried had to inform Justice Scalia to recuse himself for conflict of interest. Mauro, Tony. “Well Recuse Me, Just Don’t Ask Why.” Legal Times. December 12, 1988. Pg. 8 9

4

The single most important thing that tied the presidencies of Gerald Ford and Jimmy Carter together, and was the important catalyst to institutionalizing the signing statement, was the refusal of both presidencies to recognize the legitimacy and constitutionality of the legislative veto. The legislative veto is used when Congress is delegating power to the executive branch to make decisions in a broad program area. The legislation provides that whenever the power is used in a specific instance, such as passing regulation or shifting funds among appropriation accounts, that Congress (or one house or a committee) be notified of the specific action and have the chance to disapprove that one application of the general delegated power.13 The use of the legislative veto had dated back to the early part of the twentieth century, but in the late 1960s and particularly the 1970s, the Congress began to use more of them as the administrative state grew beyond the oversight ability of the Congress. As Barbara Hinkson Craig observed: One of the major reasons for Congress’s love affair with the veto in the late 1970s was the discovery of its utility in the regulatory arena. During the late 1960s and early 1970s Congress passed dozens of broad, often vague laws calling for clean air, clean water, safe workplaces, safe products, equal opportunities, 13

Pfiffner, James P. The Modern Presidency. New York: St. Martin’s Press. pg. 140. See also Korn, Jessica. The Power of Separation: America Constitutionalism and the Myth of the Legislative Veto. New Jersey: Princeton University Press. 1996.

5

and the like. By the mid-1970s executive branch and independent agencies responsible for implementing those laws were publishing new regulations by the hundreds to accomplish the laws’ goals.14 When constituents began to pressure Congress for regulatory relief, Congress began to use the legislative veto to control how the broad laws were being carried out. David Mathews, the Secretary of Health, Education, and Welfare (HEW) in the Ford administration notes that the Department’s most serious clashes with the Congress came about as a result of the passage of legislation with broad language and then the subsequent micromanaging of how the legislation was carried out.15 From 1975 to 1980, President’s Ford and Carter objected to the use of the legislative veto a total of seventeen times through the use of the signing statement. Some of the objections were meekly worded. For example, when President Ford signed a bill that dealt with child welfare support,16he objected to an amendment that required the Secretary of HEW to submit all proposed standards to the

14

15

16

Craig, Barbara Hinkson. “Wishing the Legislative Veto Back: A False Hope for Executive Flexibility” in Crovitz, L. Gordon et. al. The Fettered Presidency: Legal Constraints on the Executive Branch. Washington: American Enterprise Institute. 1989. pg. 204. Mathews, David. “Democracy and Rule Making in Government.” Working Paper for the Public/Public Schools Working Group. July 12, 2002. pg. 3. On file at the Kettering Foundation. 200 Commons Rd. Dayton, OH 45459. Public Law 94-88 (1975)

6

Congress for approval or disapproval.17 Ford instructed the Secretary to treat the legislative veto as a “request for information.”18 However, most of the legislative veto objections were more severe in that the president simply stated that the provision was unenforceable or a “nullity.” The Carter administration singularly focused on the unconstitutionality of the legislative veto. For example, John Harmon, head of the OLC under President Carter told me that …we took the position with regard to the socalled legislative veto devices that the Department of Justice had no obligation to defend the constitutionality of a statute that infringed on the constitutionality dictated separation of powers between the legislative and the executive branch. As the legislative veto effectively gave to one house of congress the power to overturn an executive act, it undermined the constitutional requirement that congress should act only by legislation enacted by vote of both houses subject to the veto of the president. As such it infringed on the President’s veto power. The Executive Branch had the obligation, we reasoned, to defend the powers conferred by the constitution on the institution of the presidency. Therefore, in the Chadha litigation (discussed below) we notified Congress that the Department [of Justice] would not defend the legislative veto device contained in the statute in question and would instead argue that it was unconstitutional.19

17

18 19

Ford, Gerald. “Statement on Signing a Child Support Program.” Weekly Compilation of Presidential Documents. Vol. 12, August 11, 1975. pg. 856. Ibid. pg. 856. Email interview with John Harmon. January 4, 2002.

7

In an example of the Carter administration’s objection to the legislative veto, in 1980, Attorney General Benjamin Civiletti instructed the Secretary of Education, who was faced with a forty-five day wait and report provision in the General Education Provisions Act20 to ignore it because it was unconstitutional. Civiletti argued that [O]nce a function has been delegated to the executive branch, it must be performed there, and cannot be subjected to continuing congressional control except through the constitutional process of enacting new legislation.21 To respond to the number of instances in which the executive branch failed to defend or enforce the legislative veto, Congress was forced to create its own offices to defend statutes not defended by the Attorney General and then, at the insistence of Representative Elliot Levitas, Congress codified demands to the Justice Department to inform the Congress in every instance in which the executive either nullified a provision in a statute or refused to defend a statute in court.22 While the Justice Departments in both the Ford and Carter administration were busy using the signing statement to void provisions of legislation deemed to be unconstitutional, administrators 20 21

22

20 USC 31, section 1221. Civiletti, Benjamin. “Constitutionality of Congress' Disapproval of Agency Regulations by Resolutions Not Presented to the President.” 4A Op. O.L.C. 21, 27. 1980, quoted in OLC “Memorandum for the General Counsels of the Federal Government.” http://www.usdoj.gov/olc/delly.htm. Accessed July 24, 2002. 2 USC Sec. 288 (e).

8

within the executive branch were busy looking for ways to control policy that the president preferred, but was unable to get passed, either due to legislative gridlock or interest group capture of executive branch agencies. The Development of the Administrative Presidency The Nixon administration, and its distrust of the bureaucracy, was credited with the first to attempt to strategically organize the executive branch in such a way to insure that the president’s policy preferences were written into the implementation of law. The strategy was coined the “administrative presidency” by Richard Nathan23 and involved bypassing the Congress in an effort to “effect domestic policy directly through control of agency discretion.”24 For President Nixon, Watergate effectively ended the chance to put the administrative presidency into practice, but the idea did not end with the resignation of the president. In essence, it was perfected by the Reagan administration, which normally gets the credit formalizing the administrative presidency. However, as I will discuss below, the pieces of the administrative presidency were put in place by the Ford and Carter administrations, and with that a key piece of the Unitary

23

24

Nathan, Richard P. The Plot that Failed: Nixon and the Administrative Presidency. New York: John Wiley and Sons. 1975. Clayton, Cornell W. The Politics of Justice: The Attorney General and the Making of Legal Policy. New York: M.E. Sharpe, Inc. 1992. pg. 189.

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Executive—centralization of policy within the executive branch as a means to administrative control. Marissa Martino Golden writes that the The administrative presidency is a management strategy designed to ensure bureaucratic responsiveness to the president. It is intended to help presidents achieve their policy goals administratively through the bureaucracy rather than legislatively through Congress, and to bring the bureaucracy to heel. It consists of a set of tools whose purpose is to reign in the bureaucracy, overcome bureaucratic advantages, and enable presidents to achieve their policy objectives without requiring congressional consent.25 A key element of the administrative presidency that is also a key piece of the political signing statement is the centralization of policy by the Office of Management and Budget. Not only does the OMB make final budgetary decisions, but also, and important to the Unitary Executive, it manages personnel in such a way to insure that when they exercise discretion, it is done with an eye to the president’s policy preferences. Both Presidents Ford and Carter sought to centralize policy by subjecting agency rules to a cost-benefit process. President Ford, who implemented a scaled-down version of the policies that President Nixon put in place, used an “inter-agency review process to encourage

25

Golden, Marissa Martino. What Motivates Bureaucrats? Politics and Administration During the Reagan Years. New York: Columbia University Press. 2000. pp. 5-6.

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greater analytical rigor by agencies, particularly regarding the costs of regulations.”26 President Carter required his agencies to “submit analyses of major proposed rules—including a description of alternatives and a comparative evaluation of their economic consequences—to the Regulatory Analysis Review Group, a new body consisting of decisionmaking authority to rest with the initiating agency.”27 In addition to policy decisions to attempt discretionary centralization within the Oval Office, Presidents Ford and Carter were also aided by a couple of key Supreme Court decisions. In the case “Mathews v Eldridge,”28the Supreme Court upheld the refusal, on the part of the Secretary of Health, Education, and Welfare, to give social security recipients a right of a hearing prior to termination of social security benefits. The Court felt that granting such a right was an unreasonable burden on agency resources. More importantly, the Court felt that the Secretary made a reasonable interpretation of the Social Security Act where the law is silent. In the case “Vermont Yankee Nuclear v Natural Resources Defense Council, Inc. et. al.,”29the Supreme Court ruled that lower courts could not place extra-statutory restraints on agency rulemaking beyond those that were already 26

Kagan, Elena. “Presidential Administration.” Harvard Law Review. 114:8 June 2001. pg. 2276. 27 Ibid. pp. 2276-77. 28 424 U.S. 319 (1976) 29 435 U.S. 519 (1978)

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established in the Administrative Procedure Act (APA). The importance of this decision was that the Court signaled to the executive branch that it would no longer be a convenient outlet for disgruntled interest groups that had used the courts to thwart agency discretion and interpretation.30In essence, agency discretion was placed back into the executive branch. Neither Ford nor Carter was successful in completing administrative control over the policy process, which would explain how little the political signing statement was used during their terms in office. Ford did not use one political signing statement and Carter issued only eight.31 However, both presidencies were important for laying the groundwork for the Reagan administration’s unique defense of the prerogatives of the presidency and for the push of Reagan policy preferences through the executive branch. A noteworthy bit of evidence to take from the discussion so far is the way in which Justice Department and political officials worked in tandem to build unified control. The Justice Department consistently 30

Clayton, Cornell W. pg. 178. “Statement on Signing the 1979 White House Conferences on the Arts and Humanities Bill.” Public Law 95-272. Weekly Compilation of Presidential Documents. Vol.14. May 3, 1978. pg. 823; “Statement on Signing Amtrak Improvement Act of 1978.” Public Law 95-421. Weekly Compilation of Presidential Documents. Vol. 14. October 6, 1978. pp. 1718-19; “Statement on Signing Fishery Conservation and Management Act Amendments.” (2) Public Law 96-61. Weekly Compilation of Presidential Documents. Vol.15 August 15, 1979. pp. 1435-36; “Statement on Signing Panama Canal Act of 1979.” Public Law 96-70. Weekly Compilation of Presidential Documents. Vol.15. September 27, 1979. pp. 1760-61; “Statement on Signing Administration of US Territories.”(2) Public Law 96-205. Weekly Compilation of Presidential Documents. Vol.16. pp. 466-67. March 12, 1980.

31

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thwarted the use of the legislative veto—that device that gave the Congress an in on executive branch interpretation. The OMB, along with successful Supreme Court opinions, began to move the executive branch agencies inward, toward presidential interpretation of policy, and away from congressional, judicial, and interest group pressures. The Reagan Administration and the Unitary Executive The Reagan administration receives a tremendous degree of credit for making the signing statement into the significant tool that it has become. It was the Reagan administration that made the decision to attach the signing statement to the “Legislative History” section of the United States Code Congressional and Administrative News (USCCAN), a decision that received a great deal of attention by the press and by law scholars. This decision did not come out of a vacuum, but rather was a natural outcome of the Unitary Executive. I will discuss this decision below. First, why did it take a Reagan administration to both develop the Unitary Executive and to develop the power of the signing statement? When the Reagan administration won the presidency, it promised to return pride in America—pride lost by the Carter administration and the long debacle in Iran. What the president also promised to fellow conservatives was a return of power to the presidency—power that had been enfeebled by Watergate and the capture of the regulatory

13

state by interest groups, particularly liberal interest groups. Cornell Clayton notes that the “prescription for solving these problems is judicial deference to the executive and energetic control of the administrative bureaucracy by the White House: administrative policymaking should be centralized, the President should be contentious in the selection of judges, and the administration should utilize government litigation aggressively.”32 Prior to the administration’s taking control of office, the Heritage Foundation released the report Mandate for Leadership that urged the Reagan administration to use the Justice Department to have greater control over policymaking as well as to turn back encroachments upon presidential prerogatives. Further, the report called for greater administrative control over the bureaucracy. These two recommendations form the basis for the unitary executive. Administrative Control The Heritage plan first advocated the use of strategic appointments as a means of reigning in the bureaucracy. Previous presidents had been plagued with appointees who would “go native”33once in office. By making a strategic appointment, the president could

32

Clayton, Cornell W. The Politics of Justice: The Attorney General and the Making of Legal Policy. New York: M.E. Sharpe, Inc. 1992. pg. 173. 33 This term suggests that once a political appointee was put in place, he or she became “captured” by interest groups that lobbied the agency.

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“select…appointees strategically based on their ideological policy congruence with the president.”34 When the transition team was beginning to put people into place, it was not unusual for those who were installed into key positions to be required to pass an ideological litmus test before assuming their post. For example, an individual would be asked if he or she was a Republican and a Reagan supporter? Pendelton James and Lyn Nofziger, two individuals charged with setting up the administration, had their own set of criteria for choosing the right appointees for the bureaucracy: 1. Are you a Carter appointee? If so, you’re rejected. 2. Are you a Democrat who didn’t work for Ronald Reagan? If so, you’re rejected. 3. Are you a Republican? Are you the best Republican for the job? 4. Are you a Ronald Reagan-George Bush supporter? 5. Did you work in the Reagan-Bush campaign? How early before the convention? 6. Are you the best qualified person for the job? But that’s only number 6.35 The Reagan administration had carefully studied what failed the Nixon administration, and quickly noted that reigning in the bureaucracy was important to clearing a path for their agenda. The administration benefited mightily from reforms enacted in the Carter administration. The Civil Service Reform Act of 197836 allowed the

34

Golden. pg. 6. Warshaw. pg. 131. 36 Civil Service Reform Act of 1978 (PL 95-454). 35

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Reagan administration to appoint 5,000 of “their” people, who were all carefully screened to insure they shared, enthusiastically, the President’s agenda. With respect to the choosing of the “right” people, part of the team who was making these choices was Ed Meese. As Meese noted: [W]e sought to ensure that all political appointees in the agencies were vetted through the White House personnel process, and to have a series of orientation seminars for all high-ranking officials on the various aspects of the Reagan program. We wanted our appointees to be the President’s ambassadors to the agencies, not the other way around.37 Strategic control of the personnel process was one way to bring about administrative control. A second recommendation was the centralization of the policymaking process within the Executive Office of the President. And it is here that the Reagan administration was very successful. Policy centralization within the Office of Management and Budget is the key component behind taking care that the laws are faithfully executed. As Marissa Martino Golden argues, the OMB, when used effectively, can make all final budgetary and administrative decisions while at the same time preventing the bureaucratic agencies from having recourse to the Congress. 38

37

Meese, Edwin. With Reagan: The Inside Story. Washington: Regnery Gateway. 1992. pg. 77. 38 Golden. pg. 6.

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To effectively centralize OMB control, the Reagan administration relied upon two key executive orders—EO 1229139 and EO 12,498.40 Executive Orders 12,291 and 12,498 required administrative agencies to obtain OMB cost-benefit analysis and clearance before issuing new rules and regulations.41 EO 12,291, which was issued in February 1981, contained two key elements that led to centralized control. The first, which had to do with “Major” rules (defined as those having a projected economic impact in excess of one hundred million dollars per year) had to be submitted to the OMB’s Office of Information and Regulatory Affairs (OIRA) sixty days before the publication of the notice in the Federal Register, and then again thirty days before their publication as a final rule.42 The second, which had to do with non-major rules, required their submission to the OMB ten days prior to notice and to final publication. The OMB was empowered “to stay the publication of notice of proposed rulemaking or the promulgation of a final regulation by requiring that agencies respond to its criticisms, and ultimately it may recommend the withdrawal of regulations which cannot be

39 40 41 42

46 Federal Register 131937. 50 Federal Register 1036. Clayton, Cornell W. pg. 192. Cooper, Joseph and William F. West. "Presidential Power and Republican Government: The Theory and Practice of OMB Review of Agency Rules." Journal of Politics. 50:4, November 1988. pp. 870-71.

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reformulated to meet its objections.”43 Joseph Cooper and William West argue that EO 12,291 was important in enhancing presidential control of the federal bureaucracy—something previous administrations had attempted and failed to do. Cooper and West note that: Whereas traditional mechanisms, such as budgeting, appointments, and reorganization, often restrict executive influence to the contours of administrative policy, the Reagan order allows the president and his agents to monitor and influence the substance of individual regulations. This expansion in presidential power is tied both to doctrine and events. Arguments for a strong presidency became more and more compelling in the 1970s as government continued to expand and allegations of "interest group liberalism" gained currency. Clearly the Reagan order reflects the view that the president, as the prime representative of the public interest and as the official best suited to coordinate executive decision making, should control the administrative process in opposition to the centrifugal forces of sub government politics.44 EO 12,498 simply built upon EO 12,291. EO 12,498 was issued in January, 1985 and was designed to influence agency rulemaking prior to their analysis of the potential rule. The order instructed agencies to prepare annual reports of all “ongoing or contemplated rulemaking activities and to explain to OMB how such activities are ‘consistent with

43 44

Ibid. pp. 870-71. Ibid. pg. 871.

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the administration’s regulatory principles” (emphasis added).45 The power of EO 12,498 is that it allowed “OMB control of the boundaries within which individual rules may be formulated.”46 Taken together, these two executive orders have allowed the White House to impact the regulatory process at an early stage and often against the policy wishes of agency heads. Again, Cooper and West suggest that: [the] requirements of the Reagan order, together with the other sanctions available to OMB and the president, have encouraged a good deal of informal monitoring and communication. As a former staff member of EPA has stated, "You don’t spend two years thinking about a regulation without thinking about whether OMB is going to shoot it down."47 Marissa Martino Golden argues that OMB’s point of central clearance for all requests “reduced the ability of individual agencies to make an end run around the president and request more money from Congress.”48 The key agency within the OMB that forged centralized clearance was the OIRA. It was the job of OIRA to conduct administrative clearance, to review regulation, and to employ cost-benefit analysis to

45 46 47 48

Ibid. pg. 874. Ibid. pg. 874. Ibid. pg. 876. Golden, pg. 7.

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all proposed regulations.49 The OIRA effectively monitored what regulations the agencies were considering and so effective it was that it also successfully monitored what regulations agencies could potentially consider. As a former staff person at the EPA noted: “You don’t spend two years thinking about a regulation without thinking about whether OMB is going to shoot it down.”50 Further, Reagan OIRA administrator James Miller proclaimed about OIRA: “If you’re the toughest kid on the block, most kids won’t pick a fight with you.”51 The use of the executive orders to centralize administrative control has been well documented as one of the most instrumental things to returning power back to the presidency. Cooper and West suggest that the key executive order, 12291, was an “effective means of identifying, evaluating, and influencing those agency policies most important to the president and his key constituencies.”52 Further, they argue that 12291 [e]voked a diffuse but effective set of mechanisms for bringing especially significant and/or politically troublesome rules to the attention of administration officials. To this end, OMB has relied on an extensive “alarm system” which has included letters and calls from regulated interests, informal contacts with agencies, and monitoring of trade

49 50 51 52

Ibid. pg. 7. Cooper and West. pg. 876. Ibid. pp. 873-74. Ibid. pg. 877.

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publications as well as internal memoranda alerting OIRA staff to sensitive issues.53 A final key piece of the puzzle that locked in administrative control came as a result of favorable Supreme Court rulings allowing for administrative discretion when interpreting statute. The most significant of these ruling was the Chevron v Natural Resources Defense Council decision,54which dealt with administrative interpretation of the “Clean Air Act Amendments of 1977.”55 Under dispute was a section of the “Clean Air Act Amendments” that allowed a company with several industrial plants spread across a wide, geographical area to operate as a single plant, or as a stationary source. The concept, known as the “bubble” concept, permitted an “existing plant that contains several pollution-emitting devices [to] install or modify one piece of equipment without meeting the permit conditions if the alteration will not increase the total emissions from the plant.”56 While the details of the case are not important, what is important is how the Court settled the issue of what to do with a vague or ambiguous concept not clearly defined by the legislative history of the case. The Supreme Court, in deciding the case, adopted a two-part guide to judges in determining “intent.” What the Court said was: 53 54 55 56

Ibid. pg. 877. “Chevron v. Natural Resources Defense Council,” 467 U.S. 837, (1984) at 837. P.L. 95-95 (1977) “Chevron v. Natural Resources Defense Council.”

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If the reviewing court, “employing traditional tools of statutory construction,” determines that Congress has spoken directly on a precise issue, the court “must give effect to the unambiguously expressed intent of Congress.” If after examining the text and legislative history of the statute, the reviewing court determines that a statute is silent or ambiguous regarding a particular issue, the court must defer to any reasonable interpretation made by the implementing agency.57 Chevron then allowed the administrative agency, in the absence of clear, congressional intent and within reasonable statutory interpretation, to interpret the meaning of the law. Taken together with the two executive orders, this pushed “interpretation of the meaning” of the law up to political officers within the executive branch—to the OMB and the White House staff. Doug Kmiec noted that Chevron was crucial to getting the courts to recognize executive branch interpretation of the law, and to recognize the importance of the president’s views in informing that interpretation.58 The following year the Court again buttressed agency discretion in the case Heckler v Chaney.59Chaney involved the ability of death row inmates to sue the FDA to prevent the injection of drugs in the process of lethal injection. The FDA argued that it had “inherent discretion” to 57

58 59

Eisner, Oren. “Extending Chevron Deference to Presidential Interpretations of Ambiguities in Foreign Affairs and National Security Statutes Delegating Lawmaking Power to the President.” Cornell Law Review 86:411. pg. 412 Email interview with Douglas Kmiec, April 23, 2001. 470 US 821 (1985).

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refuse to act unless there was a “serious threat to public or a blatant scheme to defraud,” something not present in the inmate’s suit.60The Court held that reasonable agency interpretation existed, which shielded it from judicial review.61 All three of these taken together complete the first leg of the Unitary Executive—the congealing of centralized, administrative control to support the Article II command that the president must “take care that the laws are faithfully executed.” OMB oversight, coupled with the power of administrative agencies to interpret, reasonably, vague provisions in law, meant that the executive could place before the administrator’s eyes the meaning of the statute. Protection of Prerogatives: The Justice Department The second leg of the Unitary Executive, the Oath Clause, involves the aggressive protections of presidential prerogatives. Aggressive protection adequately describes the Justice Department in the Reagan Administration. The Justice Department became embroiled in a number of high profile legal battles, often involving the Congress, which would prove successful in advancing the cause of the presidential signing statement.

60 61

Ibid. Ibid.

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Two very high profile and successful examples, the fight against the legislative veto and Gramm-Rudman-Hollings, all involved the use of the presidential signing statement. The legislative veto fight was something the Reagan administration inherited from the Carter administration. In late December 1980, when a federal appeals court ruled that the legislative veto was unconstitutional, President Carter seized upon the opportunity to announce that 150 bills containing the legislative veto would be challenged.62 Governor Ronald Reagan, who was running as the Republican candidate for President, had endorsed the legislative veto as a constitutional congressional prerogative. Governor Reagan had endorsed the legislative veto as an aid to control the administrative state, which fit into the anti-regulation rhetoric of his campaign. However, when Governor Reagan became President Reagan, the support for the legislative veto dropped, and the Reagan Justice Department announced it would support Chadha in his effort to find the legislative veto unconstitutional. This switch in positions resulted in an angry backlash from members of Congress. In particular, Elliot Levitas, a champion of the legislative veto, noted that he and Congressman Trent Lott went to see Vice President Bush, who was the

62

“Vetoing the Legislative Veto.” The Washington Post. December 29, 1980. pg. A12. Accessed from Nexis (www.nexis.com) News File, All database. July 20, 2002.

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head of the Task Force on Regulatory Reform, to ask him why the administration was changing its position on the legislative veto. Levitas said: Vice President Bush, in a moment of startling tangent, said to us: “You have to understand that when we were supporting the legislative veto, we were running for office. Now the administration is ours, and we don’t want any interference from Congress.”63 The Supreme Court decided, in a seven-to-two majority that the legislative veto was an unconstitutional violation of the “Presentment” Clause. What gave the Reagan administration an added boost to the decision was the attention the Supreme Court gave to the signing statement. In footnote 13 of the decision, the Court wrote that: “…11 Presidents, from Mr. Wilson through Mr. Reagan, who have been presented with this issue have gone on record at some point to challenge congressional vetoes as unconstitutional. ..Perhaps the earliest Executive expression on the constitutionality of the congressional veto is found in Attorney General William D. Mitchell's opinion of January 24, 1933, to President Hoover. 37 Op. Atty. Gen. 56. Furthermore, it is not uncommon for Presidents to approve legislation containing parts which are objectionable on constitutional grounds. For example, after President Roosevelt signed the Lend-Lease Act of 1941, Attorney General Jackson released a memorandum explaining the President's view that the provision allowing the Act's

63

Telephone interview with Elliot Levitas. August 18, 2001.

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authorization to be terminated by concurrent resolution was unconstitutional.”64 The Reagan administration did not really intend, as a goal, to get rid of the legislative veto. When the OMB sent a memo telling lower branch agencies to disregard legislative vetoes, Congress responded by “tying the administration’s hands with even stricter,’ legally binding, restrictions on spending decisions.”65 OMB Director James Miller promptly rescinded the order, noting that “I believe the congressional leadership is now fully aware of the principle involved. We have made our point…”66 Jessica Korn adds “White House officials in the Reagan administration knew that there were no gains to be won from Chadha because they were well aware that Congress’s power to exercise control over administration did not depend on shortcuts through constitutional procedure.”67 The larger victory for the administration was the test of the signing statement. The Reagan administration would use the signing statement to curb future encroachments by the Congress, most of which were met with success. A second major successful use of the signing statement came when President Reagan signed the high profile “Balanced Budget and

64 65 66 67

INS v Chadha 462 U.S. 919 (1983). Korn, Jessica. pg.37. Ibid. pg. 37. Ibid. pp. 37-38.

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Emergency Deficit Control Act, 1985,” or more popularly known as “Gramm-Rudman-Hollings (hereafter GRH) .”68 GRH was designed to eliminate the budget deficit by the year 1991. In order to accomplish this, the president’s budget and the congressional budget resolution were to meet statutory decreases in spending each fiscal year.69 “If both the Congress and the president failed to meet these targets and the deficit exceeded the statutory allowance of more than $10 billion, a ‘sequestration process’ was triggered to make across the board cuts to meet the target.”70 The money was then taken from defense and social spending programs. The body charged with the sequestration of the funds was the comptroller general, which would review reports issued by the Congressional Budget Office (CBO) and the Office of Management and Budget (OMB), and then decide on what adjustments needed to be made. The comptroller general was an agency within the General Accounting Office (GAO), which is an agent of Congress. When President Reagan signed the bill71 into law, he issued two constitutional objections to the bill. First, in a separation of powers objection, he noted that both the directors of the CBO and the

68 69 70 71

PL 99-177 Fisher. pg. 207. Ibid. pg. 207. Reagan, Ronald. “Statement on Signing H.J.Res 372 into Law.” Weekly Compilation of Presidential Documents, Vol. 21. December 12, 1985. pp. 149091.

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comptroller general in the budget process were given executive powers, and as such, were not appointed by the president. Second, he argued that the responsibilities given to the comptroller general to terminate or modify defense contracts for deficit reduction purposes violated Chadha. President Reagan was not alone in this assessment. Within hours of signing the bill into law, Representative Mike Synar (D-OK), along with eleven other members of Congress as well as the National Treasury Employees Union, filed a suit in federal district court for D.C. challenging the constitutionality of the authority vested in the GAO to make automatic cuts.72 On July 7, 1986, the Supreme Court issued its’ decision in which it upheld the district court’s ruling that the deficit reduction procedure was unconstitutional. In the decision, Bowsher v Synar (1986),73the Court, in footnote one, relied upon President Reagan’s signing statement issued when he signed GRH into law. The Court validated both objections raised by President Reagan. It held that the powers given to the comptroller general violated the separation of powers doctrine in so far it does not give the president the right to remove officers involved in executive powers. Further, the deficit reduction provisions violate the separation

72

“Constitutionality of Automatic Cuts Challenged.” CQ Almanac. Washington, 1985. pg. 461. 73 478 U.S. 714 (1986)

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of powers doctrine by giving executive powers to an agent of Congress. The use of the signing statement to protect presidential prerogatives was not totally successful. When President Reagan signed the law he had made the same objections to the comptroller general provisions that were successfully made in GRH.74 However, when the Reagan administration sought to unilaterally enforce its objections, the Congress forced a retreat after threatening to cut-off the appropriations for the Justice Department. The Justice Department also took a very aggressive approach towards Congress, in an effort to signal its clear intentions that the presidency was not just one among equals, but possibly even first among equals. For example, in the area of civil rights policies, the Justice Department and the Congress butted heads over the extension of the Voting Rights Act, with the Justice Department arguing to remove provisions that permitted minorities to use disparate impact75 evidence when challenging local voting practices.76Even though the provision passed by wide majorities in Congress and was reluctantly

74

See Reagan, Ronald. “Statement on Signing the Deficit Reduction Act of 1984.” Weekly Compilation of Presidential Documents. Vol. 21. July 18, 1984. pg. 1037. 75 Disparate impact describes policies or practices that result in an adverse effect on minorities or women. Such practices could be tests that are not germane to a job to be performed or height and weight requirements that exclude groups of people. http://www.civilrights.org/library/permanent_collection/resources/glossary.html. Accessed 12/31/02. 76 Cornell. pg, 200.

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signed by President Reagan, the Justice Department “continued to refuse to use impact evidence to bring voting rights suits, or to reject local voting practices under preclearance requirements under the act.”77 The Justice Department also forced a very high profile fight with the Congress and with the lower courts over the Comptroller-General provision in the “Deficit Reduction Act of 1984.”78The point of contention, which was objected to in a presidential signing statement, was the Competition-in-Contracting Act’s (CICA) provision of the law, designed to “reduce the number of noncompetitive contract awards made by federal agencies.”79If a federal contractor objected to a submitted bid, the act provided for the holding of federal funds by the Comptroller General in the event a big was contested. After the CICA became law, the Attorney General instructed the OMB to direct all executive branch agencies to refer to the presidential signing statement with respect to the Comptroller-General provision of the CICA. Not long after the act became law, a domestic contractor to the Navy complained about the awarding of a bid to an Israeli contractor, even though the domestic contractor had submitted a lower bid. 77

Ibid. pg. 200. PL 98-369 (1984) 79 Burgess, Christine E. “When May a President Refuse to Enforce the Law?” Texas Law Review 72: 631, 1994. pp. 642-43. 78

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When the Comptroller-General moved to intervene and withhold the funds, the Reagan administration ordered the Secretary of the Navy to disregard the Comptroller-General’s demands and to award the bid to the Israeli contractor.80 In a suit filed against the Secretary of the Navy,81and joined by both Houses of Congress, the Court rejected the administration’s constitutional rejection of the Comptroller-General provision of the CICA and ordered the contract to be held. The Justice Department made a high profile decision to ignore the demands of the Court, arguing that the final arbiter of the decision would have to be the Supreme Court and not the lower courts, and ordered the Secretary of the Navy to ignore the lower court decision. Only after the House Judiciary Committee threatened to withhold the following year’s appropriated funds did the Justice Department give way. The important point from this example is the stand that the executive branch was willing to take to protect its prerogatives, ignoring edicts both from the Congress and from the lower judiciary. The 1986 Westlaw Decision The scholars that have written on the signing statement have all agreed that the decision to have the Westlaw company add the presidential signing statement to the “Legislative History” section of 80 81

Ibid. pg. 643. Lear Siegler v Lehman. 842 F.2d 1102 (1988).

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the USCCAN was very significant. What is not discussed is how this decision was made. Why did the Reagan administration make such an unprecedented move? And what did they hope to gain from it? This discussion will focus on what prompted the decision and what the administration hoped to gain from it. I will argue that by 1986, the administration’s relationship with the Congress had become so fractured that any attempt to move the administration’s policies was very difficult. Additionally, the Unitary Executive had been put into place, as I have discussed above. Bitter Relations with Congress The Reagan administration’s relationship with the Congress was highly fractured. In fact, outside of the first year in office, the administration had a terrible relationship with the Congress right up to the end. In 1981, President Reagan received 82% approval ratings in Congress on roll call votes with those who supported positions the administration took.82 However, in every subsequent year Reagan lost support within Congress for his policy initiatives, bottoming out in 1987 when he was only able to win 43.5% of the 177 roll call votes on which he took a position.83 Roger Davidson observed that “Reagan got

82

83

“Presidential Success on Votes, 1953-1988.” CQ Almanac 100th Congress, 2d Session 1988. CQ Inc. Washington: 1989. pg. 23-B. Ibid.

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his licks in early in 1981. By 1982 he had a hard time selling them cheap lemonade.”84 Key in the loss of support in Congress was the loss of the coalition of conservative Democrats and moderate Republicans who had made Reagan’s 1981 successes happen. President Reagan spent a great deal of time in 1981 courting conservatives in Congress to help pass many of his legislative initiatives. For example, by wooing Republicans in the Senate in 1981, President Reagan narrowly won a contentious battle over the sale of aircraft with advanced radar equipment to Saudi Arabia.85 By 1987, the year in which the President scored the lowest on roll call votes, he vetoed the first two big bills of the year—bills that dealt with water treatment and highway construction.86 Despite his trip to Congress to meet with wavering Republicans over the issue of overriding the President’s vetoes, he could not get one Republican to switch, resulting in the override of his vetoes. In fact, President Reagan had nine of his vetoes overridden in his eight years in office, a rate matched or exceeded by only three previous presidents in the 20th century,

87

clearly pointing to the extent of the division between the

Congress and the administration.

84 85 86 87

Ibid. Ibid. pg. 904. Ibid. pg. 904. Those Presidents are: Ford (12), Truman (12) and FDR (9). See “Presidential Vetoes, 1789-1999.” http://clerkweb.house.gov/histrecs/househis/lists/vetoes.htm

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In addition to his loss of support in Congress, President Reagan also suffered electoral defeats in every election in which he was president. While President Reagan won easily in his re-election bid in 1984, members of his party did not. In 1982, the first midterm test of the administration, the Republicans suffered the worst midterm losses for a President since any administration dating back to 1922.88 The gains by the Democrats (a net gain of 26 House seats) embolden the Democrats to challenge the administration’s claim of a “mandate.” This meant that the Democrats were set to challenge the Reagan Revolution of tax cuts, an increase in defense spending, and the major cuts in domestic spending. In 1984, despite Reagan’s impressive victory over Walter Mondale (525 electoral votes with 54% of the popular vote89), Republicans running for Congress did worst than they expected. In the 1984 election, Republicans picked up only 14 House Seats and lost two Senate seats, setting up the 1986 shift in power to the Democrats.90 In February 1986, Attorney General Ed Meese, who had recently come off a bitter confirmation battle with the Senate, announced that the signing statement was going to be added to the “Legislative History” section of the United States Code Congressional and 88 89

90

“The Reagan Presidency.” CQ Almanac. Washington: 1988. pg. 904. “Electoral College Box Scores.” http://www.nara.gov/fedreg/elctcoll/ecfront.html, accessed July 12, 2001. “The Reagan Presidency.” CQ Almanac. Washington: 1988. pg. 904

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Administrative News. Meese made the announcement to the National Press Club almost as an afterthought in a speech on gun control. Meese explained that the decision was meant: To make sure that the President’s own understanding of what’s in a bill is the same…or is given consideration at the time of statutory construction later on by a court, we have now arranged with West Publishing Company that the presidential statement on the signing of a bill will accompany the legislative history from Congress so that all can be available to the court for future construction of what that statute really means.91 While this decision received immediate notice, and has been the point of a great deal of discussion, there has been no attention paid to why this particular decision was made in the first place. Not long after Meese took over as Attorney General, he began to convene early morning “brainstorming”92 sessions, held in the Attorney General’s conference room, in which all the division heads would gather to discuss important and immediate business. Most discussions in particular would focus on how to advance the President’s legislative agenda with a Congress that was recalcitrant. A bonus for the administration was to have on staff some very talented people, particularly working in the Office of Legal Counsel, who would turn to the creative ways in which the president could 91

Quoted in Garber, Marc N. and Kurt A. Wimmer. “Presidential Signing Statements as Interpretations of Legislative Intent: An Executive Aggrandizement of Power,” Harvard Journal on Legislation 24:263, pg. 367. 92 Phone interview with Attorney General Edwin Meese, conducted April 12, 2001.

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insure his control over the legislation he was signing into law. Among those people were Douglas Kmiec and Steven Calabresi, both currently constitutional law professors.93It was Calabresi who identified the signing statement as a significant tool and who urged the administration to contact the West Publishing Company to have it included in the “Legislative History” section of the USCCAN.94And Kmiec told me that the signing statement would become a crucial vehicle for the president to give his subordinate officers direction. Kmiec stated: “It was crucial for the administration to give executive top-down on inevitable interpretation, rather than relying solely upon the far less transparent judgment of someone in an executive agency applying the law for the first time.”95Why was this crucial? As I noted before, and reflected in my discussion with Kmiec, the Chevron decision allowed the president’s interpretation to become important absent a finding of clear legislative intent. So for Calabresi and Kmiec, the signing statement was an important administrative tool, going back to the early days of the Reagan administration, to reign in centralization over the vast administrative agencies. As to whether it was successful in achieving administrative control, Kmiec told me: I do think the initiative was successful insofar as it conveyed presidential direction to 93

94 95

Calabresi is professor of constitutional law at Northwestern University and Kmiec is Dean of Catholic University School of Law. Email interview with Calabresi, June 15, 2001. Email interview with Kmiec, April 23, 2001.

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members of the executive branch at the earliest possible point of implementation. In other words it let agencies know that their work product under new law was not only to reflect their considered judgment, but also that of the President, who unfortunately can sometimes seem like a distant abstraction when one works in a sprawling administrative agency.96 But for Attorney General Meese, the signing statement had an additional advantage beyond administrative control. For Meese, the importance of attaching them to the “Legislative History” section was to place the president’s understanding of the meaning of a bill along side the congresses understanding. Meese told me that: [I]t was felt that the president, in signing a bill, should also have a way of expressing his view of the bill, particularly in regard to certain provisions of a bill where he might have questions about his constitutionality and to be indicated that he had those questions and why those provisions of the bill might not be enforced.97 Up to this time, the signing statement had been viewed as “ancillary to the bill,”98and as nothing more than a press release. The only way, according to Meese, to get the president’s views into the statute books was to have it included as part of the legislative history section of each bill.99

96 97 98 99

Ibid. Phone interview with Ed Meese, April 12, 2001. Ibid. Ibid.

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Now that the signing statement was published in the USCCAN, an agency head “understands not only that this … indicates the political position of the administration, but also that the Justice Department will not be prepared to support the [agency head] should he or she seek to depart from the mandated course of action."100 The political and the constitutional signing statements were a deliberate outcome of the Unitary Executive, brought about by the Reagan administration’s search to insure maximum centralized control over the protections of the office and of agency interpretation. It was not long after Meese made the announcement that the administration became engaged in some high profile, and effective, uses of the signing statement. In the three examples discussed below, the Reagan administration was able to take advantage of unresolved debates in Congress to push its interpretation of vague and undefined sections of law. In the first example, the Reagan administration took advantage of a contentious battle in Congress regarding the “Safe Drinking Water Amendments of 1986.”101 In the bill signing statement, President Reagan objected to mandatory enforcement language as a violation of

100

101

Branum, Tara L. “President or King? The Use and Abuse of Executive Orders in Modern-Day America.” Journal of Legislation. 28 J. Legis. 1. 2002. pg. 87. Public Law 99-339. (1986).

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executive discretion.102 President Reagan’s interpretation of the language, “which permitted executive discretion, directly contradicted a Senate Committee report and disregarded the fact that the statute replaced the prior discretionary "may" language with a mandatory “shall.”103 As William Popkin notes: This interpretation not only attempted to resolve an unresolved, contentious political debate, but also undermined the statutory structure mandating federal enforcement, as evidenced by the fact that "shall" replaced "may" in the statutory text. This presidential foray into creating legislative history evoked a critical response in the New Republic and a defense in the National Law Journal from a Deputy Assistant Attorney General.104 A second, and more high profile example of the strategic use of the signing statement arose after President Reagan signed into law the “Immigration Reform and Control Act, 1986.”(IRCA)105 Reagan issued eight separate signing statements with the law, three which made constitutional objections and five that made political interpretations.106 The most contentious interpretation had to do with the “Frank” Amendment to the bill. For two years prior to the passage of IRCA, 102

103

104 105 106

Reagan, Ronald. “Statement on Signing the Safe Drinking Water Act Amendments of 1986.” Weekly Compilation of Presidential Documents. Vol.22. Pg.831. June 19, 1986. Popkin, William D. “Judicial Use of Presidential Legislative History: A Critique.” Indiana Law Journal. 66:699. Summer, 1991. pg. 706. Ibid. pp. 705-06. Public Law 99-603. (1986). Reagan, Ronald. “Statement on Signing the Immigration Reform and Control Act, 1986.” Weekly Compilation of Presidential Documents. Vol.22. pp. 1534-37. November 6, 1986.

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Congressman Barney Frank had been trying, unsuccessfully, to build into law protections that would benefit workers who were fired from a job due to discrimination. In IRCA, Congressman Frank was successful in getting the House to pass his amendment to the bill. However, when the bill went to conference, the amendment (section 247B) was left intact but the meaning behind “discrimination” was stripped away. When President Reagan signed the bill into law, he defined discrimination as discriminatory intent rather than disparate treatment. The significance is that discriminatory intent shifted the burden of proof from the employer unto the employee. Congressman Frank charged that the Reagan administration was “intellectually dishonest” and the shift in burden “tells the bigots how to be smart and evade the law.”107 Even Doug Kmiec, a champion of the signing statement noted that: I objected internally at the time, but alas, everyone in a political administration does not always play their assigned roles. Every organization has a few mavericks.108 In addition to Congressman Frank, other members of Congress expressed dismay at what the administration had done. Kmiec tells of a tongue lashing he received from Senator Ted Kennedy for

107 108

Killenbeck, Mark R. “A Matter of Mere Approval? The Role of the President in the Creation of Legislative History.” Arkansas Law Review. 48: 239. 1995. pg. 272. Email interview with Kmiec, April 23, 2001.

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attempting to subvert the legislative will.109 When the final rule was published, the interpretation of the Reagan administration prevailed. A final example of the effective use of the signing statement following the 1986 Westlaw decision came upon the signing of the “Sentencing Act of 1987.”110 In it, President Reagan once again took advantage of a contentious debate between the House and the Senate to express his understanding of the legislation. President Reagan issued three separate signing statements that had the effect of having greater retroactive impact and less judicial discretion, which sided with the Senate view over the House’s view.111 In 1989, the Supreme Court upheld President Reagan’s interpretation in the case “US v Story.”112 In the Story decision, the Court noted that the Department of Justice participated in the negotiations in Conference and that President Reagan, in his bill signing statement, had agreed with the Senate’s understanding of the definitions and the Court relied upon that interpretation.113 When the Reagan administration left office, they left a presidency that was much stronger than when they had inherited it. They left to

109 110 111

112 113

Ibid. Public Law 100-182. (1987). Reagan, Ronald. “Statement on Signing the Sentencing Act of 1987.” Weekly Compilation of Presidential Documents. Vol.23. December 7, 1987. pg. 1452. 891 F. 2d. 988. (1989). Carroll, Kristy L. "Whose Statute is it Anyway?: Why and How Courts Should Use Presidential Signing Statements when Interpreting Federal Statutes." Catholic University Law Review 46:475 1997. pg. 511.

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successors a unified, unitary executive and a powerful weapon—the presidential signing statement. The Reagan administration had successfully gotten the courts to recognize the presidential signing statement, they had gotten it included into the USCCAN, and they had managed to use it to define contentious and ill-defined sections of a bill. Chapter Five and Six will examine how the Bush and Clinton administrations both improved upon the Unitary Executive and further developed the use of the signing statement.

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Chapter Five—The Unitary Executive and the Bush Administration

Chapter 5 The Bush Administration President George H.W. Bush won election in 1988 with a mandate to carry on the Reagan Legacy. President Bush, who had run against President Reagan in 1980, had served ably as Vice-President for the eight years of the Reagan administration. Importantly, President Bush was instrumental in constructing and maintaining the Unitary Executive while serving in the capacity of head of the regulatory task force in the Reagan administration. But President Bush was not Ronald Reagan. First, he was not the conservative that President Reagan was, and thus did not enjoy the complete support of the conservative wing of the Republican Party. During the 1988 Primaries, President Bush found one of his greatest challenges came from the Reverend Pat Robertson, who had the support of the Christian Coalition and the Moral Majority. In fact, two staunch conservatives from this part of the Republican Party noted that “a Bush defeat would not be the worst thing that could happen to the Republic or the Republicans.”1 And second, President Bush did not have the rhetorical appeal that Ronald Reagan had. President Bush would not be able to go directly to the people in the same manner that Reagan did, which would be a factor in dealing with the Congress.

1

Dionne, E.J. “Bush Moving to Solidify Ties to Republican Right.” The New York Times. . Section A, Column 1. April 28, 1988.

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President Bush ably performed in the challenge of maintaining and improving upon the Unitary Executive. In a speech given at Princeton in 1991, Bush outlined the basic themes of the Unitary Executive and blasted the Congress for attempting to encroach upon the prerogatives of the Unitary Executive.2 Bush argued that the president is the only nationally elected official, and as such, he has certain prerogatives that only he may exercise. Congress, he felt, was too busy trying to micromanage foreign and domestic policy, and it was the president’s constitutional duty to see that it did not. This chapter will examine how the Bush administration built upon the principles of the Unitary Executive, and in so doing, how it used the signing statement. I will begin with a restatement of the key principles of the Unitary Executive, and where the use of the signing statement has been up to the end of the Reagan administration. This will give the context to examine how the Bush administration advanced the cause of the Unitary Executive and sharpened the strategic significance of the signing statement. I will then examine how the Bush administration used the signing statement overall before discussing what strategic significance he gave to the signing statement. Finally I will tie this discussion into how the Bush administration built upon the foundation of the Unitary Executive provided to it by the Reagan administration. 2

Bush, George H.W. “Remarks of President George Bush Building Dedication at Princeton University.” Federal News Service. May 10, 1991.

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The Unitary Executive—Restatement of core principles It has been my argument that the Unitary Executive rests upon the notions of coordinancy and accountability, and has been in development over the course of the last thirty years. Coordinancy, it was suggested, originated in Federalist 49 where James Madison argued that each branch is given coordinate power which each branch enjoys only for itself. This is the basis of power checking power. It also has served as the basis of the argument in which each branch of government is responsible for deciding the constitutionality of legislation on its own—no one branch, it is argued, should be able interpret for another branch of government the meaning of the Constitution. The second key foundation of the Unitary Executive is accountability. Because the president is the only nationally elected official, it is his responsibility to insure that the way in which the laws are implemented are in line with his views of public policy and not the views of an unaccountable bureaucrat. I have argued in previous chapters that the Unitary Executive is really a product of the political hydraulics of the last thirty years. Two notable events gave rise to the Unitary Executive. The first is the attention that has been given to the vast administrative state, beginning first with President Nixon and then with every subsequent president. The second is the effect

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that Vietnam and then Watergate had on the political system—a popular desire to muzzle the power of the presidency. Further, and what I think to be the most important, is the persistence of highly partisan, divided government that created within the presidency a perceptual barrier in interacting with the external political environment. As I will discuss below, the emphasis on coordinancy and accountability served as a basis to the Bush style of governing. President Bush was highly aggressive in defending presidential prerogatives and pushed the centralization of control over the bureaucracy even further than what was obtained during the Reagan administration. Signing Statements and Bush’s use Table 5.1 Comparison of Signing Statements—Reagan-Bush President Reagan Bush

Constitutional 71 (26%) 146 (68%)

Political 23 (.08%) 30 (14%)

Rhetorical 94 (34%) 38 (18%)

Total 276 214

As I noted in Chapter Three, the use of the signing statement exploded from the Reagan administration through the Clinton administration. If you look Table 5.1, a few things merit attention. First, the total number of signing statements actually decreased from Reagan to Bush from 276 to 214. Also notable is the decrease in the number of rhetorical signing statements from Reagan to Bush. The number dropped nearly 40%, but this is consistent with President Bush’s style. He was not the “Great

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Communicator” that President Reagan was, and it shows clearly in his use of the rhetorical signing statement. However, in the two categories that are important for this research, the constitutional and political signing statements, both show an increase. The number of political signing statements from Reagan to Bush moved upward, albeit slightly (23 to 30) and the numbers of constitutional signing statements exploded, from 71 in the Reagan Administration to 146 in the Bush administration. The Bush administration was the most aggressive in protecting the office from constitutional encroachments upon the powers of the presidency. As I will discuss below, this likely comes from the highly partisan nature of his last two years in the Reagan administration. Not only did Bush inherit the polemics from the Reagan administration, but he also was dogged, initially, by his role in the Iran-Contra affair. Hence the Bush administration was more focused on the constitutional signing statements than on any other type of signing statement. As Nelson Lund notes, “[T]he Bush signing statements are pervaded by an amazing scrupulosity about the separation of powers. Even a cursory review of the record suggests that the administration tried to identify and deal with every such issue in every bill that was presented to the president.”3 For example, in Bush’s signing statement of the National and Community Service Act of 1990, Bush

3

Lund, Nelson “Guardians of the Presidency: The Office of the Counsel to the President and the Office of Legal Counsel” in Cornell W. Clayton. Government Lawyers: The Federal Legal Bureaucracy and Presidential Politics. Kansas: University Press of Kansas. 1995. pg. 221.

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objected to individuals who were executive officers of a commission charged with oversight of a variety of programs under the Act, yet were not appointed by the president.4 Bush noted that only the president can appoint executive officers, and instructed executive branch agencies and the attorney-general to treat them “without legal force.”5 As Nelson Lund argues, “[A]s long as the president refused to nominate candidates for the commission, the congressionally mandated programs probably could not have been administered.”6 The Congress quickly acted to correct the provision that President Bush objected to by passing the National and Community Service Technical Amendments Act of 19917 early in the next legislative session. A second example of an aggressive use of the signing statement to protect the prerogatives of the executive branch came as a result of signing the Department of Interior and Related Agencies Appropriations Act for 1990.8 The objection was over section 119 of the act that restricted the Interior Department’s ability to communicate with anyone, including the

4

Bush, George H. W. “Statement on Signing the ‘National and Community Service Act of 1990.” Weekly Compilation of Presidential Documents. pp. 1833-34. 11/16/90. 5 Ibid. pp. 1833-34. 6 Lund. pp. 223-24. 7 National and Community Service Technical Amendments Act of 1991, Pub. L. No. 102-10, 105 Stat. 29 (1991). 8 Department of the Interior and Related Agencies Appropriations Act, 1990, Pub. L. No. 101-121, § 318, 1989 U.S.C.C.A.N. (103 Stat.) 710, 745-50.

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president, without informing the Congress.9 The president informed Congress that this was an unconstitutional intrusion upon the constitutional right of the president to receive unfettered information. The White House noted that this might be the right time to test the president’s right to a lineitem veto, and Congress responded by amending section 119 so that it “was effective for only one day—a Sunday three weeks before the bill was passed.”10 The Bush administration did a great deal to enhance the power of the signing statement. The Reagan administration, as demonstrated in Chapter Four, was instrumental in placing the signing statement into the legislative history of the acts signed into law. The Bush administration built upon this power by aligning with fellow partisans in the Congress to create an alternative legislative history to which the president could point to when signing bills into law. The value of this was to win in those instances in which the president’s position was not the majority position in Congress. The Alternative Legislative History The Bush administration had been dogged by President Bush’s role in the Iran-Contra affair while he was vice-president in the Reagan administration. The trial of Oliver North in 1989 renewed public attention to

9

Davies, Susan M. “Congressional Encroachment on Executive Branch Communications.” University of Chicago Law Review. 57:129. Fall, 1990. 10 Ibid. pp. 1298.

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the President’s role11, and during congressional debate over the “Foreign Operations, Export Financing, and Related Programs Appropriations Act,”12 Representative David Obey (D-Wisconsin) had added an amendment that “prohibited the sales of arms or aid to any foreign government to further U.S. foreign policy objectives if the U.S. would be prohibited from the same kind of influence.”13 This was similar to the Boland Amendment, the amendment that prohibited U.S. official involvement in aid to the Contras, and the amendment at the heart of the Iran-Contra controversy. An earlier attempt to insert this amendment was vetoed by President Bush14as an unconstitutional violation of the president’s power over foreign policy as well as to control internal deliberations within the executive branch. In addition to these objections, President Bush also objected to a provision of the bill that mandated international family planning policies that included contraceptives and abortion funding. A subsequent bill, the one the president signed, had removed the family planning provisions but retained the provisions contained in the Obey amendment in “a classic case of veto bargaining.”15

11

Whiting, Alex. “Controlling Tin Cup Diplomacy.” Yale Law Journal. Volume 99. June 1990. 12 PL101-167. 13 Tiefer, Charles. The Semi-Sovereign Presidency: The Bush Administration’s Strategy for Governing without Congress. Boulder: Westview Press. 1994. pg. 38. 14 Bush, George H.W. “Message Returning to the House of Representatives without Approval the Foreign Relations Authorization Act, Fiscal Years 1990 and 1991.” 25 Weekly Compilation of Presidential Documents. November 21, 1989. pp. 1806-1807. 15 Tiefer. pg. 38.

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President Bush’s signing statement of the bill noted his “serious misgivings as to the constitutionality” of many of its provisions and his intent to “construe any constitutionally doubtful provisions in accordance with the requirements of the Constitution.”16 One of the doubtful provisions was the Obey Amendment. President Bush argued that his intent was to construe this narrowly in accordance with the view expressed on the House and Senate floor that the provision only applies to “quid pro quo” transactions— “transactions in which U.S. funds are provided to a foreign nation on the express condition that the foreign nation provide specific assistance to a third country, which assistance U.S. officials are expressly prohibited from providing by U.S. law.”17 Bush finds his interpretation of this section in an “explanatory colloquy” between Senators (Robert) Kasten and (Warren) Rudman.18 According to this “colloquy,” a quid pro quo arrangement is one that requires that both countries understand and agree that the U.S. aid will not be provided if the foreign government does not provide the specific assistance. The Senate record also makes clear that neither the criminal conspiracy statue, nor any other criminal penalty, will apply to any violation of this section. My decision to sign this bill is predicated on these understandings of Section 582.19

16

Bush, George H.W. “Statement on Signing the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1990.” Weekly Compilation of Presidential Documents. November 21, 1989. pg. 1811. 17 Ibid. pg. 1811. 18 Ibid. pg. 1811. 19 Ibid. pg. 1811.

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According to Charles Tiefer, this was done for the sole purpose of manipulating the legislative history.20 Tiefer claims that this was a strategy worked out between the White House and Senator Bob Dole (R.Ka), thenSenate Minority Leader. The Republicans in Congress planted an alternative legislative history that would give an “alternative account of what Congress was doing in passing the bill without the changes in the bill that Congress would make.”21 The purpose was to supplant “congressional legislating on a central and hotly contested issue.”22 Indeed, an examination of section 582 shows that the Congress took care to point out that it excluded any “funds to governing governments ‘in exchange’ for taking actions prohibited to the U.S. government,” and not just the those with a quid pro quo agreement.23 This strategy would be particularly significant when the Bush administration was forced, politically, to sign the Civil Rights Act of 1991 (discussed below). Planting an alternative legislative history to give force to a signing statement was an important development to the power and importance of the signing statement. In Chapter Four I explained how the pieces of the Unitary Executive came together in the Reagan administration. Both an aggressive stance against assaults upon the prerogatives of the president as well as creative 20 21 22 23

Tiefer. pg. 40. Ibid. pg. 40. Ibid. pg. 40. Ibid. pg. 38.

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ways of moving policy left the Bush administration in a better position than when President Reagan had taken office eight years before. I will now turn to the further development of the Unitary Executive in the Bush administration and how both the constitutional and political signing statements were used in this development. Evolution of the Unitary Executive: The Bush Administration Common to the strategy to further develop the Unitary Executive and the political and constitutional signing statements was the important role White House Counsel C. Boyden Gray played. A 1991 “National Journal” article proclaimed: White House counsel C. Boyden Gray is the most important person to hold that post in recent memory. And Gray's lawyers are an all-star team of unabashed conservatives with clout.24 Gray had used the post of White House Counsel to not only aggressively protect the prerogatives of the president, but also to forcefully push the president’s preferred policy positions through Congress, and when that failed, through the bureaucracy. Gray had transformed the White House Counsel position from one of legal bureaucrat to chief spear carrier for the president in policy debates and chief defender of presidential prerogatives—surpassing even that of the Department of Justice. As I will discuss below, in both the strategic use of the constitutional signing

24

Moore, W. John. “The True Believers.” The National Journal. Volume 23, No. 33-34. August 17, 1991. pg. 2018.

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statement and the political signing statement, Gray was often behind both moves. The Quayle Council and the Political Signing Statement The Heritage Foundation released a similar report to the incoming Bush administration that it had in 1980 to the incoming Reagan administration. Mandate for Leadership III urged the Bush administration to continue with the same deregulatory zeal that the Reagan administration had, and to revamp Executive Order 12,291 to “make presidential control over executive branch regulators explicit.”25 The report further urged a strategy that included: a) defending the President’s assertion of control over regulatory decision, b) challenging precedents that prevent rational decision-making and weaken presidential authority, and c) assuring that all significant filings by or on behalf of regulatory agencies are consistent in asserting the President’s authority and defending his objectives.26 When the Bush administration took over from the Reagan administration, the regulatory oversight ability of the Office of Management and Budget, in particular the Office of Information and Regulatory Affairs (OIRA), had come under fire from the Democratically-controlled Congress frustrated by years of policy manipulation by the Reagan administration. In 1989, the Congress inserted restrictive language into the reauthorization in

25

Cornell, Clayton. The Politics of Justice: The Attorney General and the Making of Legal Policy. New York: M.E. Sharpe, Inc. 1992. pg. 233. 26 Ibid. pg. 233.

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1989 of the Paperwork Reduction Act that involved “comprehensive ‘logging’ requirements for all OMB activities and communications relating to review, the imposition of deadlines for the conduct of reviews, and a requirement for OMB to explain in writing its reasons for suggesting changes in any proposed regulation.”27The OMB worked out a compromise with the Congress which was vetoed by the White House Counsel’s office as an unacceptable intrusion upon executive branch prerogatives. In retaliation, the Congress refused either to reauthorize OIRA or to confirm a presidential appointee to succeed Wendy Gramm, who had departed as OIRA Administrator in 1989. As a consequence, OIRA lacked an advice-and-consent appointee to wield its authority over executive agencies.28 To fill the void in the executive branch policymaking process, the President’s Council on Competitiveness, or the “Quayle Council,” stepped in monitor the regulatory process. The Council was set up in 1989 to protect business from overly-burdensome federal regulations. It proved to be far more effective than the OMB because it was not prohibited from having direct conversations with industry nor was it influenced by congressional budgetary pressures. A staff person in Congress contended that the council would take “industry’s ‘suggestions’ to OMB and orders OMB to change regulations,”29 which an EPA sourced noted that was effective “90 percent”

27

Shane, Peter. “Political Accountability in a System of Checks and Balances: The Case of Presidential Review of Rulemaking.” Arkansas Law Review. 48:161. 1995. pg. 168. 28 Ibid. pg. 168. 29 “Putting a Freeze on Regulations; George Bush Moves against Excessive Government Regulation.” Occupational Hazards. 54:10. October, 1992. pg. 81.

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of the time.30The outcome was to lessen the “rule-making power of federal agencies and tipped the outcome of these battles against those in Congress who push for strict regulation.”31 The Quayle Council consisted of seven members32 as well as six working groups33 and their meetings were both informal and rare.34 Further, the Council “vigorously advocated a theory of the executive branch in which the President's policy roles, even in domestic affairs, are (sic) broadly discretionary, dischargeable in secret, relatively immune to congressional scrutiny (at least as to process), and subject to judicial review only in rare instances.”35 The first Director, Allan Hubbard, was a zealous believer in the free market who ordered up a list from the OIRA of those agencies that were perceived to be acting inefficiently when it came to slashing regulations on business.36He would quite often call agency lawyers to inquire why the particular agency was not deregulating, and when his phone call did not work, he would ask Vice President Quayle to meet with the particular Cabinet Secretary.37 This created an environment in which pressure could be put upon those with policy responsibilities “while remaining within the White 30

Ibid. pg. 81. Broder, David and Bob Woodward. “Quayle's Quest: Curb Rules, Leave 'No Fingerprints.” The Washington Post. January 9, 1992. pg. A1. 32 Ibid. 33 Tiefer. pg. 72 34 Broder and Woodward. pg. A1. 35 Shane, pg. 163. 36 Broder and Woodward. pg. A1. 37 Ibid. pg. A1. 31

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House framework assertedly immune from judicial review and congressional oversight.38 According to Charles Tiefer, the “Quayle Council provided a mechanism for the president to propitiate and to reward his industry supporters without relying upon the president’s weak support in Congress.”39 Case Study: The Clean Air Act Amendments of 1990. To illustrate how Boyden Gray, the Quayle Council, and the political signing statement worked with pinpoint accuracy is the example of the “Clean Air Act Amendments of 1990”. The president had several of his proposals rejected by the Congress during deliberation over the “Clean Air Act Amendments”, and the Congress felt free, in conference, to adopt stronger controls than the president had advocated because of election year pressures on the president not to veto the bill.40 When the president signed the bill, he chose to reinsert his proposals that were rejected during deliberations over the bill. President Bush stated: To address the serious concerns raised by the cost of this legislation, I am directing Bill Reilly, Administrator of the Environmental Protection Agency, to implement this bill in the most costeffective manner possible. This means ensuring that plants can continue to use emission trading and netting to the maximum extent allowed by law…and that the permit program is phased in over time in an orderly, nondisruptive manner.41 As Charles Tiefer argues, 38

Tiefer. pg. 72. Ibid. pg. 72. 40 Ibid. pg. 71. 41 Bush, George H. W. “Statement on Signing the Bill Amending the Clean Air Act.” Weekly Compilation of Presidential Documents. November 15, 1990. pg. 1825. 39

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[T]he Quayle Council provided a mechanism for the president to propitiate and to reward his industry supporters without relying upon the president’s weak support in Congress. President Bush’s pronouncements on the newly signed bill drafted by the White House Counsel’s office prepared the way for the second stage of having the other White House staff at the Quayle Council, complete the revision.42 The permit program was one of two things that deregulators in the Bush White House set their sights on. Title V of the Clean Air Act Amendments43 requires all major sources of air pollution to obtain a permit. This permit is to “set out all emission limits and recordkeeping and monitoring requirements that apply to the source under the act.”44A key point of contention was when a state had to require public notices and public hearings—only on major modifications or an all modifications, major and minor. The section45 under questions requires the state to provide adequate, streamlined, and reasonable procedures for expeditiously determining when applications are complete, for processing such applications, for public notice, including offering an opportunity for public comment and a hearing, and for expeditious review of permit actions, including applications, renewals, or revisions, and including an opportunity for judicial review in State court of the final permit action by the applicant, any other person who could obtain judicial review of that action under applicable law.46

42

Tiefer. pg. 72. PL 101-549. 44 Herz, Michael. “Imposing Unified Executive Branch Statutory Interpretation.” Cardozo Law Review. 15:1-2. October, 1993. pg. 231. 45 Section 502 (b)(6) 46 Herz. Pg. 232. 43

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In December of 1990, the EPA submitted a draft rule that allowed input from industry, environmentalists, and other related experts.47 The group recommended interpreting 502 (b)(6) in a way that allowed for extensive public input into all permit changes. The National Environmental Development Association (NEDA), a coalition of industry groups, went to OMB and Boyden Gray a month later to express concerns over the draft rule,48which leads to the Council on Competitiveness to place a representative in at least six meetings through February.49 In March 1991, the EPA circulated another draft rule that continued to draw the ire of the NEDA over public comment provisions on all plant modifications, and it made clear its intent to take its objections to the Council on Competitiveness, the OMB, the Council of Economic Advisors (CEA), and the Energy Department50 and in early April 16 companies wrote to White House Chief of Staff John Sununu objecting to the revised draft rule.51 In April, the EPA again sent a proposed draft rule to the OMB that meet with serious objections, which prompted the OMB to return the rule completely rewritten in a way the removed the public comment provision. According to Herz, “[t]he revisions were purportedly the work of the OIRA within OMB, the [Office of Policy Development], and the White House 47 48 49 50 51

Ibid. Ibid. Ibid. Ibid. Ibid.

pg. pg. pg. pg. pp.

236. 237. 237. 237. 237-38.

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Counsel’s office— not the Competitiveness Council. Its involvement was indirect, but powerful.”52 Representative Seth Waxman (D-CA.), Chair of the House Subcommittee on Health and the Environment, was outraged when he learned of the rule return by the OMB and ordered EPA Administrator Reilly to come before his Committee in May.53 During this hearing, Representative Waxman “blindsided”54 Reilly with a report titled “The Vice President’s Initiative to Undermine the Clean Air Act”55 which allowed Democrats on the Committee and environmentalists to “beat up on the EPA and the administration.”56 Reilly went back to the EPA and by late summer had drafted a revised rule that took into account the mandates issued from Waxman’s Subcommittee hearings. The draft rule was released to the OMB a month before the final rule was due, and it provided for “significantly increased public involvement in minor permit revisions.”57 From November 1991 to January 1992, the EPA was placed under enormous pressure from the OMB and the Council on Competitiveness, and submitted a revised draft to permit “fast track modification procedures’ while still requiring public notice over a 21 day period if the permitting authority deemed it appropriate.”58

52

Ibid. pp. 238-39. Ibid. pg. 239. 54 Ibid. pg. 240. 55 House Subcommittee on Health and the Environment, “The Vice President's Initiative to Undermine the Clean Air Act.” 102nd Cong., 1st sess, May 1, 1991 56 Herz. pg. 240. 57 Ibid. pg. 240. 58 Ibid. pg. 243. 53

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By this time, the EPA was left with the unpleasant task of writing a rule that simultaneously pleased the Congress and officials in the executive branch. EPA administrator Henry Habicht was called into a meeting with Boyden Gray, CEA Chair Michael Boskin, and Vice President Quayle’s Chief of Staff William Kristol.59 All informed Habicht of their dissatisfaction with the revised rule. To put additional pressure on the EPA, President Bush took the opportunity to use his State of the Union address to place a 90 day moratorium on all new regulations, ostensibly to respond to a severe downturn in the economy.60 Reilly, who was finally pushed to his limits, wrote directly to the President asking him to resolve the controversy between the EPA and the Council on Competitiveness.61 In May 1992, the President sided with the Council on Competitiveness, and the Attorney General released an opinion that the “Act did not require public comment for minor permit revisions,”62and on June 25, 1992, the EPA released the final rule that excluded any public notification requirement.63 According to Herz, the permit rule struggle can be seen as illustrating executive oversight as a tool for enforcing the broader views of the generalists (those who had a commitment to regulatory relief) over the narrower agenda of the agency. The agency did not share the

59

Ibid. pp. 243-44. Ibid. pp. 243-44. 61 Ibid. pp. 247-48. According to Herz, this marks the first and only time the EPA ever went to the President to resolve an inter-agency dispute. 62 Ibid. pg. 248. 63 Ibid. pg. 248. 60

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same priorities. It lost, as the model of the unitary executive says it should.64 As the above case illustrates, the administration was able to use the new tools of executive branch oversight to pressure an executive branch agency to interpret a rule consistent with the president’s position on a signing statement. In addition to the centralization of the executive branch policymaking apparatus that was inherited from the Reagan administration, the Bush administration also benefited from Supreme Court rulings that aided executive branch oversight and rulemaking. I will focus on judicial deference to the executive branch next. Rust v Sullivan As I discussed in Chapter Four, part of what brought together the Unitary Executive in the Reagan administration was favorable court rulings towards executive branch centralization. In the Supreme Court case Chevron v Natural Resources Defense Council,

65

the Court established a two-

part test to guide executive branch agencies when interpreting law. The Court stated that in the absence of clear legislative intent over ambiguous sections of a law, the agency may apply reasonable statutory interpretation. This was significant to the Reagan administration in that when they began to attach the signing statement to the “Legislative History” section of the United States Code Congressional and Administrative News, the president’s

64 65

Ibid. pg. 249. 104 S.Ct. 2778, 467 U.S. 837, 81 L.Ed.2d 694(1984)

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understanding of the bill was meant to serve as a guide to executive branch agencies when they issued rules. In the case of Rust v Sullivan,66 the Supreme Court dealt with the issue of the Secretary of Health and Human Service’s reinterpretation of section 1008 of the “Public Health Service Act.”67 Section 1008 originally specified that “none of the federal funds appropriated under the Act's Title X for family-planning services ‘shall be used in programs where abortion is a method of family planning.”68 The Bush administration, in an effort to shore up the conservative base of the Republican Party—an area in which the president was politically weak—reinterpreted section 1008 so that Title X prohibited “projects from engaging in counseling concerning, referrals for, and activities advocating abortion as a method of family planning, and require such projects to maintain an objective integrity and independence from the prohibited abortion activities by the use of separate facilities, personnel, and accounting records.”69 Before the new rule went into effect, Title X grantee and those who supervise the allocation of funds filed suit, claiming that the new interpretation thwarted the intent of the law. In a five to four decision, Chief Justice William Rehnquist sided with the Secretary of HHS, arguing that [B]ecause 1008 is ambiguous in that it does not speak directly to the issues of abortion counseling, 66 67 68 69

500 U.S. 173 (1991) 42 U.S.C. 254. Ibid. Rust v Sullivan.

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referral, and advocacy, or to "program integrity," the Secretary's construction must be accorded substantial deference as the interpretation of the agency charged with administering the statute, and may not be disturbed as an abuse of discretion if it reflects a plausible construction of the statute's plain language and does not otherwise conflict with Congress' expressed intent.70 Further, Chief Justice Rehnquist argued that “since the legislative history is ambiguous as to Congress' intent on these issues, this Court will defer to the Secretary's expertise.” This decision significantly enhanced the Unitary Executive. Not only can the executive branch interpret vague or ambiguous language in bills that it receives from the Congress, but it also can reexamine statutes from previous administrations. What is significant is the lack of recognition by the Court given to previous administrations and how they interpreted Title X. In the administrations prior to Bush,71Title X was interpreted to only apply to abortions only, and not on abortion counseling.72 The Congress attempted to override the Court’s interpretation of Title X but fell eleven votes short in the House of Representatives of the necessary 2/3 needed to override a presidential veto.73 The significance of this, as stated in a New York Times

70

Ibid. These administrations spanned Nixon, Ford, Carter, and Reagan. 72 Clayton, Cornell W. The Politics of Justice: The Attorney General and the Making of Legal Policy. New York: M.E. Sharpe, Inc. 1992. pg. 235. 73 Ibid. pg. 235. 71

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article on the decision, is that it allows the executive “to make the law backwards.”74 To answer the question of whether the Bush administration enhanced the “Take Care” side of the Unitary Executive, the answer would have to be a resounding “Yes!” As I have just demonstrated, the administration put in place a centralized apparatus in the White House that very ably pressured executive branch agencies to adopt the administration’s position on vague or ambiguous language in statutes. Further, the Supreme Court greatly aided the executive branch in its effort to take greater control not just over the rulemaking process, but also on rules that had been issued in previous administrations. I will now turn to the “Oath” portion of the Unitary Executive and demonstrate the great care the administration took in protecting the prerogatives of the office. The Oath Clause As I have argued, a great deal of the protection that a president gets comes from the bureaucrats working in the Office of Legal Counsel (OLC), which resides in the Department of Justice. Since the early 1970s, the functionaries of the OLC have taken as obligation the defense of presidential prerogatives against congressional encroachment. The Bush White House

74

Ibid. pg. 236.

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benefited enormously from the presidential activists in the OLC that had cut their teeth during the contentious battles in the 1980s. President Bush chose William P. Barr to head up the OLC when he took office in January, 1989. Bill Barr, who would later become the Attorney General, was a zealot when it came to protecting presidential prerogatives. Barr, and White House Counsel C. Boyden Gray, would be instrumental in outlining the defense of presidential prerogatives. In an OLC opinion75 shortly after taking office, Barr outlined ten types of legislative encroachments76 into the prerogatives of the president. In outlining the ten, he also suggested how the OLC should handle each, mostly by drafting language to insert into a signing statement assuming the president did not veto the law. For example, in outlining the attempts that Congress makes to gain access to sensitive executive branch information, Barr suggested language for a signing statement: The Department objects to the breadth of this amendment and its failure to recognize the President's constitutional right and duty to withhold from disclosure certain information. The President must retain the authority to withhold in the public interest information whose disclosure might 75

William P. Barr. “Common Legislative Encroachments on Executive Branch Constitutional Authority.” Opinion of the Office of Legal Counsel 1989 OLC LEXIS 28; 13 Op. O.L.C. 299 July 27, 1989. 76 Those ten are: interference with the appointment power, the creation of hybrid commissions, attempts to constrain the removal power, micromanagement of the executive branch, attempts to gain access to sensitive executive branch information, legislative vetoes, requirements that legislation be submitted to congress, attempts to restrict the president’s foreign affairs powers, and restrictions on the president’s power to make recess appointments. Ibid.

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significantly impair the conduct of foreign relations, the national security, the deliberative processes of the Executive Branch or the performance of its constitutional duties. Accordingly, the Department recommends that the committees' right to obtain such information be qualified by the phrase "to the extent permitted by law.”77 The Bush Justice Department, along with White House Counselor Gray, raised the levels of constitutional challenges to executive branch encroachments to new levels. As I noted at the beginning of this chapter, the Bush White House made more constitutionally-based signing statements than any administration before and after. In fact, President Bush even went so far as to having the OLC publicly issue four opinions in 1990 on the constitutionality of provisions of bills that he regarded as an infringement upon the prerogatives of the presidency.78 Much to the chagrin of the Congress, Barr would issue the opinions and then deny the Congress the justifications the OLC was using to deny enforcement.79To give Congress the information, Barr reasoned, was an unconstitutional infringement upon the

77

Ibid. Barr, William P. “Issues Raised by Foreign Relations Authorization Bill.” Opinion of the Office of Legal Counsel. 1990 OLC LEXIS 51, *; 14 Op. O.L.C. 37; Luttig, J. Michael. “Prohibitions and Penalties Under Section 582 of the 1990 Foreign Operations, Export Financing, and Related Programs Appropriations Act.” Opinion of the Office of Legal Counsel. 1990 OLC LEXIS 62, *; 14 Op. O.L.C. 84; Luttig, J. Michael. “Constitutionality of Subsection 4117(b) of Enrolled Bill H.R. 5835, the ‘Omnibus Budget Reconciliation Act of 1990." Opinion of the Office of Legal Counsel. 1990 OLC LEXIS 46, *; 14 Op. O.L.C. 154; and McGinnis, John O. “Appointment of Members of the Board of Directors of the Commission on National and Community Service.” 1990 OLC LEXIS 58, *; 14 Op. O.L.C. 157. 79 See Klaidman, Daniel. “AG Nominee Is a Hawk on Presidential Powers.” The Recorder. November 12, 1991. pg. 1 78

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president’s prerogative to solicit advice from inferiors within the executive branch. In addition to the public challenges to the constitutionality of sections of bills that the president was about to sign, Barr also filed suit to have a law that was already in existence struck down because it was unconstitutional. In the previous chapter, I discussed the high profile fight that the Reagan administration had with the Congress over the “Competition in Contracting” Act (CICA). Even though the courts ruled in favor of the Congress in deciding that the actions of the Comptroller-General were appropriate, it had never sat well with the Reagan administration and continued to bother the Bush administration. In June of 1990, Barr directed Justice Department lawyers to take the unprecedented step of filing suit in federal district court to strike down the CICA as unconstitutional.80 And finally, in a throwback to the Reagan administration, the Bush Justice Department continued to write signing statements that urged executive branch agencies to treat as “unconstitutional” things that had been upheld by the courts. For example, when President Bush signed the Energy and Water Development Appropriations Act, 199281he declared that government set-asides of 10% for groups of a “certain racial composition” were constitutionally suspect and directed his Secretary of Energy to

80

Klaidman. pg. 1. The federal district court dismissed the case for lack of ripeness. See United States v Instruments, S.A. Inc. 91-1574-LIFO. 81 PL102-104. August 17, 1991.

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administer the program “in a constitutional manner.”82 As Phillip Cooper aptly argues: “The bottom line was that the administration opposed affirmative action and made its own determination that the program was unconstitutional.”83 I will now show how the Bush administration used the signing statement over the issue of the president’s prerogative over appointments. In the first example, when President Bush signed the “Dayton Aviation Heritage Preservation Act of 1992,”84 he objected to language in the bill that directed the Secretary of Interior to make certain appointments to the Heritage Commission, and then gave those appointees executive power although they were never confirmed as executive officers of the United States.85 According to Michael Gessel, the legislative aide for Congressman Tony Hall (D. OH), the Bush administration refused to appoint anyone to the Commission until remedial language was made to the law, which finally did happen in 1995 as part of the “Omnibus Parks and Public Lands Management Act of 1996.”86 Gessel conveyed to me his surprise at the length the

82

Bush, George H. W. “Statement on Signing the Energy and Water Development Appropriations Act, 1992. PL102-104. Weekly Compilation of Presidential Documents. pg. 1143. October 17, 1991. 83 Cooper, Phillip J. By Order of the President: The Use and Abuse of Executive Direct Action. Kansas: University of Kansas Press. 2002. pg. 206. 84 PL102-419. October 16, 1992. 85 Bush, George H. W. “Statement on Signing the Dayton Aviation Heritage Preservation Act of 1992.” Weekly Compilation of Presidential Documents. October 16, 1992. pg. 1966. 86 Public Law No. 104-333. November 12, 1995.

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administration was willing to go to protect presidential prerogatives over what he deemed a minor defect in the bill.87 A second example of the aggressive assertion of presidential prerogatives in the area of appointments came over an objection to language inserted into a foreign relations authorization bill in 1990.88 This bill contained language that included members of Congress in the Conference on Security and Cooperation in Europe. The Bush administration had the OLC issue an opinion on the constitutionality of this language, to which the OLC concluded that this was an unconstitutional intrusion upon the president’s foreign policy prerogatives and thus was severable from the bill.89 In the president’s signing statement, Bush argues that only the president has the authority over the foreign policy of the United States, and he construes this section of the bill as non-binding.90 President Bush followed the direction of his advisors in the OLC, and signed the bill but did not appoint any legislative members to go to the Conference.91

87

This conversation took place in late November, 2002, when Gessel visited the Kettering Foundation. It was mere happenstance that the conversation took place at all. Gessel was visiting the Foundation looking into an employment opportunity with the Foundation, and he and I spoke about the dissertation I was working on. He expressed his surprise that anyone else knew about the signing statement and what it was capable of doing. I had a follow up email interview with Gessel on December 20, 2002. 88 Foreign Relations Authorization Act, Fiscal Year 1990 and 1991. PL 101-246. 89 Barr, William P. “Issues Raised by Foreign Relations Authorization Bill.” Opinion of the Office of Legal Counsel. 1990 OLC LEXIS 51, *; 14 Op. O.L.C. 37. 90 Bush, George H. W. Statement on Signing the Foreign Relations Authorization Act, FY 90 and 91. PL101-246. Weekly Compilation of Presidential Documents. February 16, 1990. pp. 266-68. 91 Barr, William P. “Attorney General’s Remarks, Benjamin N. Cardozo School of Law, November 15, 1992. Cardozo Law Review. 15:1-2. October, 1993.

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A third and final example came with a commission that was established as part of the “National and Community Services Act of 1990.”92 In Bush’s signing statement, he argued that the Commission on National and Community Service had members that were appointed by the Speaker of the House and the Senate Majority Leader and were given executive functions in violation of the Appointments Clause of the Constitution.93 Bush regarded this section as having no legal force and he refused to nominate anyone to the Commission until the section was remedied. According to Nelson Lund, “[I]n a burst of speed that would otherwise be mystifying, Congress passed remedial legislation94 bringing the statute into conformity with the President's view of the Appointments Clause early in the next legislative session.”95 Civil Rights Act Amendments, 1991 In an earlier discussion above, I noted how the Bush administration strategically used partisans in the Senate to create an alternative legislative history for the “Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1990.” This strategy became especially important during the debate and passage of the “Civil Rights Act of 1991”.

92

Public Law 101-610. November 16, 1990. Bush, George H.W. “ Statement on Signing the National and Community Service Act of 1990.” PL101-610. Weekly Compilation of Presidential Documents. November 16, 1990. pp. 1833-34 94 National and Community Service Technical Amendments Act of 1991, Public Law 102-10. 1991. 95 Lund, Nelson. “Lawyers and the Defense of the Presidency.” Brigham Young University Law Review Number 17. 1995. pg. 48. 93

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The president had vetoed an earlier bill the year before because it included unconstitutional quotas and that it would be a burden on business.96 However, in the course of a year, a great deal had changed in the political landscape that would force the administration to accept a similar Civil Rights bill. First, David Duke, a renowned white supremacist in Louisiana would rise to national prominence using the language the Bush administration had used in its veto message in 1990 as a justification for a separation of the races. And second, the Clarence Thomas/Anita Hill controversy made it extremely difficult for the president to defend the rhetorical assault that the administration was anti-civil rights. So rather than veto the bill, the administration did what it could to shape the outcome in a way that was acceptable to the administration. The Civil Rights Act of 1991 was a result of number of Supreme Court decisions handed down in 1989, among the most controversial was the decision in “Wards Cove Packing Co. v. Atonio.”97 Wards Cove had changed the meaning of “disparate impact” that had been used since 197198 to help guide businesses in their hiring practices. The disparate impact definition held that if “an employment practice has a disparate impact on members of minority groups and there is no proven ‘business necessity’ for the practice, that suffices as a violation of Title VII of the Civil Rights Act of 1964 even if 96

Bush, George H. W. “Veto message on S. 2104 entitled ‘Civil Rights Act of 1990.” Congressional Record. Vol. 136 No. 147. October 24, 1990. pg. S16562. 97 490 U.S. 642. 1989. 98 Griggs v. Duke Power. 401 US 424. 1971.

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no discriminatory intent is alleged or proved.”99 The sense was that this definition raised the possibility that an employer would hire by quota rather than by other measures. In Wards Cove, which was a narrow decision, the Court sought to relieve the pressure to hire by quota. As Roger Clegg explains, “for purposes of showing a disparate impact, the ‘proper basis for the initial inquiry’ is ‘between the racial composition of the qualified persons in the labor market and the persons holding at-issue jobs’ rather than between one part of the employer's work force and another.”100 To help the lower courts, the Supreme Court put forth guidelines that emphasized the shift of the burden of proof from the employer to the “disparate-impact plaintiff.”101 In both the 1990 and 1991 acts, the Congress sought to restore the original definition of “disparate impact.” In 1991, as I stated above, the White House was politically cornered and thus relented in the fall and signed the act. The Congress had made clear what it wanted “disparate impact” to mean. It inserted language into the Congressional Record pointing to the “exclusive” legislative history of the act. The statement, known as the “Danforth Memoradum,” read: The terms "business necessity" and "job related" are intended to reflect the concepts enunciated by the 99

Clegg, Roger. “A Brief Legislative History of the Civil Rights Act of 1991.” Louisiana Law Review. 54:1459. July, 1994. pg. 1460. 100 Clegg. pg. 1460. 101 Ibid. pg. 1460.

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Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424 (1971), and in the other Supreme Court decisions prior to Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989).102 When President Bush signed the bill, he issued a statement that Charles Tiefer refers to as “the most controversial signing statement.”103 When the president signed the bill, he begun by noting that the bill “codifies” rather than “overrules” the Supreme Court decision in Wards Cove.104 But even more important, the president took control of the language in the bill. As I discussed above, the Congress was very careful to note in the Congressional Record what the authoritative definition of disparate impact was to be. The Danforth Memorandum, which was a compromise between the administration and the Congress, reverted the definition to the one the Court held in Griggs. President Bush, however, pointed to the Congressional Record entries of Senator Bob Dole and others as the interpretive guidance— the legislative history—of the Civil Rights Act. Executive branch agencies were then ordered to follow the guidance of the Dole legislative history when interpreting the meaning of disparate impact—a legislative history that suggested the bill affirmed the ruling in Wards Cove.105 Conclusion

102

“The Civil Rights Act of 1991.” The Congressional Record. Vol. 137 No. 155. October 25, 1991. pg. S.15273. 103 Tiefer. pg. 56. 104 Ibid. pg. 57. 105 LaFraniere, Sharon. “Civil Rights Act Focus Turns to Enforcement; Debate Over Standard for Business Continues.” The Washington Post. November 26, 1991. Pg. A19.

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The Bush administration took over where the Reagan administration had left off. The Reagan administration began to assemble the building blocks to the Unitary Executive, and the Bush administration continued with that assembly. The Bush administration, through the Quayle Council, was able to exercise a degree of administrative control not realized in the Reagan administration. Additionally, William Barr and C. Boyden Gray continued with the defense of the president’s prerogatives in the face of a hostile Congress and a hostile political environment. One of the more important points to direct attention regarding the use of the signing statement was how the Bush administration built upon the use of legislative history that the Reagan administration had found significant in 1986. The Bush administration used the signing statement to point to an alternative legislative history when they lost a policy battle in the Congress. This is an interesting and important development in the use of the signing statement that we did not see in earlier presidencies. The next chapter will explore how the Clinton administration changed strategies yet continued to perfect the evolving practices in the Unitary Executive. Even though members of the Clinton administration denied that what they did had anything to do with the notion of a Unitary Executive, I think by the end of the administration, as I will show next, they had become “Unitarians.

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Chapter 6 The Unitary Executive and the Clinton Administration “Stroke of the Pen, law of the land. Kind of cool.” White House aide Paul Begala1

Introduction In the aftermath of the Monica Lewinsky controversy, when the survival of the Clinton administration was at stake, presidential advisor Paul Begala made the comment that introduces this chapter. The comment was more of a statement declaring what the Clinton administration could not accomplish legislatively—and most were deeply pessimistic that they could accomplish anything legislatively—would be pursued administratively to insure that the Clinton policy agenda would emerge intact by years end. When the Clinton administration came to office after beating incumbent president George H.W. Bush, there was a great deal of hope that the bitter stalemate that defined the previous twelve years, known in common parlance as gridlock, would come to an end. For the first time in over a decade, there would be unified party government. However, as I have argued in previous chapters, as has Charles O. Jones, “[i]nstitutional competition is an expected outcome of the constitutional arrangements”2 that divide the legislative from the executive branch of government. As I will demonstrate below, the Clinton administration came into office and

1

Bennet, James. “True to Form, Clinton Shifts Energies Back To U.S. Focus.” The New York Times. Section 1, pg. 10. July 5, 1998. 2 Jones, Charles O. The Presidency in a Separated System. Washington D.C.: The Brookings Institution.1994. pg. 18.

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immediately began laying the ground work to protect the prerogatives of the office and to centralize control over policy. In this chapter I will explain how the Clinton administration further perfected the evolution of the Unitary Executive and defended and used the signing statement as an aid in the institutional battles with the Congress and as a rhetorical device to aid key constituencies. I will restate the key principles of the Unitary Executive before explaining how the Clinton administration used the signing statement in total. From there I will focus in on the two key areas of the Unitary Executive—the “Oath” Clause and the “Take Care” clause—that best explain why the president uses the constitutional and political signing statements. The Unitary Executive I have argued in previous chapters that the Unitary Executive rests upon the notions of coordinancy and accountability, and you can see these principles come forth in the statements of officials who work in the executive branch. Coordinancy, it was suggested, originated in Federalist 49 where James Madison argued that each branch is given coordinate power that is for that branch alone. This is the basis of power checking power. It also has served as the basis of the argument in which each branch of government is responsible for deciding the constitutionality of legislation on its own—no one

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branch, it is argued, should be able interpret for another branch of government the meaning of the constitution. You can see officials within the Clinton administration defending the coordinate power of the president in a battle the administration had in the late 1990s with the Congress over the placement of a semi-autonomous agency (discussed in greater detail below) within the Department of Energy. The Congress placed the agency there after security lapses became public in 1998 at several weapons laboratories. Secretary of Energy Bill Richardson refused to appoint anyone to this new agency because he claimed that it undermined his authority. When he appeared before the House Armed Services Committee and was asked whether he was obligated to follow the intent of the law, he proclaimed that he did not. His rationale was that the semi-autonomous agency was an unconstitutional violation of the separation of powers doctrine.3 The second key foundation of the Unitary Executive is accountability. Because the president is the only nationally elected official, it is his responsibility to insure that the way in which the laws are implemented are in line with his views of public policy and not the views of an unaccountable bureaucrat.

3

“NNSA Starts Up as Richardson and Congress Clash.” Science and Technology in Congress. http://www.aaas.org/spp/cstc/bulletin/articles/3-00/nnsa.htm. Accessed March 24, 2002.

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Elena Kagan, a domestic policy advisor in the Clinton administration, argued that “[W]hen Congress delegates discretionary authority to an agency official, because that official is a subordinate of the President, it is so granting discretionary authority (unless otherwise specified) to the President.”4 I have argued in previous chapters that the Unitary Executive is really a product of the political hydraulics of the last thirty to thirty-five years. Two notable events gave rise to the Unitary Executive. The first is the attention that has been given to the vast administrative state, beginning first with President Nixon and then with every subsequent president. The second is the effect that Vietnam and then Watergate5 had on the political system— a popular desire to muzzle the power of the presidency. Further, and what I think to be the most important, is the persistence of highly partisan, divided government that created within the presidency a perceptual barrier in interacting with the external political environment.6

4

Kagan, Elena. “Presidential Administration.” Harvard Law Review. 114:8 June 2001. pg.2327. 5 The number of political scholars pointing out the effect that Vietnam and Watergate had on the political system are too numerous to mention. Among some of the finer arguments are: Putnam, Robert. Bowling Alone: The Collapse and Revival of American Community. New York: Simon and Shuster. 2000; King, Anthony. Running Scared: Why America’s Politicians Campaign too much and Govern too Little. New York: Martin Kessler Books. 1997; Patterson, Thomas. Out of Order. New York: Knopf. 1993; Cappella, Joseph and Kathleen Hall Jamieson. The Spiral of Cynicism: The Press and the Public Good. New York: Oxford University Press. 1997. 6 The argument over what affect, if any, the presence of divided government has upon the president’s ability to move policy is well-covered. See, for example, Mayhew, David. Divided We Govern: Party Control, Lawmaking, and Investigations, 1946-1990. Connecticut: Yale University Press. 1991; Krehbiel, Keith. Pivotal Politics: A Theory of U.S. Lawmaking. Chicago: University of Chicago Press. 1998; Brady, David W., and

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This was particularly acute to the Clinton presidency. In 1994, President Clinton was stunned with the loss of both Houses of Congress to the Republican Party. And it was not just a loss of party control that was problematic for the Clinton administration, but rather it was a loss to an ideologically-cohesive group of Republicans who had no desire to cooperate with the president. This particular group of Republicans—particularly the House Republicans—had been schooled over the course of a decade in guerilla warfare. As congressional scholar Richard Fenno has argued,7 the Republicans that came to power in 1994 were confrontational partisans rather than institutional partisans. Beginning in the early 1980s, Newt Gingrich and other backbench Republicans formed the Conservative Opportunity Society who had a mission to gain control of the House of Representatives in a short period of time. They did this by driving out the Republicans who were prone to compromise with the Democrats—the socalled institutional partisans—and then turned their attention towards dragging the Democrats down by blaming any institutional failure on the Democrats who controlled the House of Representatives. Thus, by the time

Craig Volden. Revolving Gridlock. Colorado: Westview Press. 1998. My contention is that presidents, after their initial honeymoon, view a political system that seems almost paralyzing and stifling. Rather than looking at what effect divided government had on the ability to govern, my argument is what affect divided, highly partisan government has at the time the president is attempting to govern. 7 See Fenno, Richard. Learning to Govern: An Institutional View of the 104th Congress. Washington, D.C.: Brookings Press. 1997.

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the Republicans won control in 1994, they were a rabid lot bent on making the Congress the center of the political universe.8 The Clinton administration, then, was marred by a prolonged period of a bitter relationship with the Congress after the 1994 Midterm election, certainly culminating in the high point of acrimony—the successful 1998 impeachment and the failed 1999 trial for removal of President Clinton. Finally, the means to which the Unitary Executive is put into practice is the expansive reading given to the “Take Care” Clause and the “Oath” Clause of the Constitution. As I have argued in previous chapters, the “Take Care” Clause has been used by the executive branch to centralize control over the policy process and the “Oath” clause has given the executive branch the authority to protect the prerogatives of the Office of the Presidency. In practical purposes, this has meant that the Office of Management and Budget and the Department of Justice—particularly the Office of Legal Counsel (OLC)—have become highly politicized and used to enforce the “Take Care” and “Oath” clauses of the Constitution. I will address this issue in greater detail below when I discuss exactly how the Clinton administration utilized the Unitary Executive. But before I do that, I want to give a brief discussion of how the President Clinton used the signing statement. 8

David Brock also notes that during the Clinton presidency, ideologically-oriented conservative organizations funded a number of media outlets whose sole purpose was to tear down the Clinton administration. See Brock, David. Blinded by the Right: The Conscience of an Ex-Conservative. New York: Crown Publishers. 2002.

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The Clinton Administration and the Signing Statement—An Overview. President Clinton issued a total of 391 signing statements, which was consistent with the trend since the Reagan administration of each administration relying more on the signing statement than the previous administration. It speaks to an institutionalization of the signing statement as well as an institutionalization of a particular presidential power, and is consistent with the kind of evidence that others have found when studying the development of presidential power tools.9 Signing Statements—Comparisons Table 6.1 Comparison of Signing Statements—Bush-Clinton President Reagan Bush Clinton

Constitutional 71 (26%) 146 (68%) 105 (27%)

Political 23 (.08%) 30 (14%) 21 (.06%)

Rhetorical 94 (34%) 38 (18%) 265 (68%)

Total 276 214 394

As Table 6.1 shows, President Clinton issued more constitutional signing statements as a whole than President Reagan, but as a percent of the total, was in line with the use of the constitutional signing statement by the Reagan administration. Similarly, the use of the political signing statement by the Clinton administration was very similar to its use by the Reagan administration. In both the constitutional signing statement and the political signing statement, the Bush administration issued more in total numbers and as a percent than the Clinton administration. One could 9

See, for example, Mayer, Kenneth R. With the Stroke of a Pen: Executive Orders and Presidential Power. Princeton: Princeton University Press. 2001.

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surmise that the Bush administration relied on both types of signing statements more than the Clinton administration simply because the Bush administration inherited from the Reagan administration the deep political divisions with the more liberal Congress, and thus was forced to look inside and use both types more. This was certainly true, as I argued in the previous chapter, with the constitutional signing statement, which the Bush administration seemed to have conditioned itself after eight years of the Reagan administration to protect presidential prerogatives at all cost. However, if you take away the number of rhetorical signing statements issued by the Clinton administration, you can see that those in the Clinton administration were just as concerned with the protection of the president’s prerogatives as those in the Bush administration.10 This is clearly indicative of the institutionalization of the process within the Office of Legal Counsel— in fact, President Clinton’s head of the OLC, Walter Dellinger, was also a deputy in the OLC in the Bush administration. But why didn’t the Clinton administration issue as many political signing statements as the Bush administration had issued? Again, taking away the number of rhetorical signing statement issued in both administrations, you can see that both, as a percent, issued about the same percent of political signing statements when you combine the constitutional 10

If you take away the number of rhetorical signing statements issued by the Clinton administration, you can see that 83% of all signing statements were constitutionallyoriented statements. If you do the same for the Bush administration, the percentage of constitutional signing statements issued are exactly the same (83%).

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and political signing statements together.11 There is also a more interesting reason why the total of political signing statements in the Clinton administration was not higher than previous administrations. It is no mystery that the Clinton administration prided itself as staffed with policy wonks, and when the administration lost the Congress in 1994, insuring the administration’s policy objectives became all the more difficult. It would seem, if my argument is correct, that the number of political signing statements should be more than what it was. The Clinton administration was very creative in using a number of different tools to insure that their policy goals were realized. The Clinton administration, more so than previous administrations, made heavy use of executive orders, memoranda, presidential decision directives (PDD), and presidential proclamations, all with the single goal of accomplishing administratively what could not be accomplished legislatively.12 As Robert Pear argued in his article responding to those who felt the President was weakened after the 1994 Midterm election, unilaterally President Clinton: • • •

Tapped a special Treasury fund to bail out Mexico in 1995; Barred Federal agencies from signing contracts with companies that permanently replaced striking workers; Appointed 18% of executive positions to temporary appointees to skirt the Senate confirmation process; and

11

Clinton issued 16% and President Bush issued 17%. Elena Kagan argues that the use of presidential directives “accelerated dramatically” after the 1994 Midterm Election, increasing almost “fourfold” in the span of one year. pp. 231213.

12

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•

Designated 1.7 million acres of land in Utah as a national monument, much to the chagrin of members of Congress.13 This certainly was something not overlooked by scholars and critics

alike.14 While it is not a subject of this study, it would prove fruitful to examine the complete picture of the variety of administrative actions that the Clinton administration could and did use in an effort to control public policy and to throw-off congressional investigators and other watch dogs who would have picked up on a trend had any one been systematically used over time. Where the Clinton administration is consistent with the use of the signing statement is the number of rhetorical signing statements issued, which is more than any administration had used before, and consistent with the Clinton administration’s emphasis on political rhetoric both as a rail against the Congress and as a way to reward political supporters. As I argued earlier, the Clinton administration was known for using the rhetorical signing statement largely for “hortatory” means.

15

One example

was the use of the signing statement to appease a favored constituency, the environmental lobby. Environmentalists waged a fierce battle during the 104th Congress to defeat a rider to the “Omnibus Consolidated 13

Pear, Robert. “The Presidential Pen is Still Mighty.” The New York Times. Sunday, June 28, 1998. Section 4, Page 3. 14 See, for example, Cooper, Phillip J. "Power Tools for an Effective and Responsible Presidency." Administration and Society. 29:5. November, 1997; Also Gaziano, Todd F. “The Use and Abuse of Executive Orders and Other Presidential Directives.” Texas Law Review. 5: 267. Spring, 2001. 15 Phone interview with Jim Yokes, representative in the Legislative Reference Division of the Office of Management and Budget. May 24, 2002.

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Appropriations Act, 1997”

16

that amended the Endangered Species Act and

the National Environmental Policy Act. When they failed to win in the Congress, they were pleased17 to have obtained a paragraph in the bill signing statement by the President. The Unitary Executive—Take Care and Oath Clauses Take Care and Administrative Control It has been my contention that for the president to insure accountability, which is one of the key pieces of the Unitary Executive, it has meant for more centralized, administrative control over executive branch policymaking within the White House and by the White House staff, who are political appointees and not career civil service. As we have seen, administrative control has largely been done by politicizing the Office of Management and Budget, which through a series of Executive Orders, it developed into the policy clearinghouse for the White House. For a rule to be written after legislation had been signed, that rule first had to be vetted through political aides within the OMB, mostly located in the Office of Information and Regulatory Affairs (OIRA). The political signing statement only became significant after the Reagan administration had centralized policymaking within the White House,

16 17

Public Law No. 104-208. (1995). A statement on the Defenders of Wildlife webpage announcing the concession read: “GREEN, Defenders of Wildlife and the Endangered Species Coalition mounted a fierce battle to stop the waiver that failed, but elicited a paragraph in the President’s signing statement regretting that the provision remained in the bill.” http://198.240.72.81/104th.html. Accessed June 19, 2002.

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which enabled the Reagan administration to add the signing statement to the United States Code, Congressional and Administrative News (USCCAN) as a way to signal to bureaucrats the president’s understanding of the law. The Bush administration built upon the work of the Reagan administration and used the Council on Competitiveness, or the “Quayle Council,” as a way to insure executive branch policymaking, as seen in the short study of the “Clean Air Act Amendments” of 1990. In that instance, the business community, along with staff within the White House, forced the EPA into adopting the policy goals of the White House, and not of the specialized interests or the wishes of the Congress when issuing a final rule on when public hearing had to be held. The Clinton administration would continue to centralize policymaking within the executive branch, but with a twist. Rather than trying to reign in the bureaucracy and remove discretion from the bureaucrat, the Clinton administration sought to use the bureaucracy to achieve policy goals. Elena Kagan argues that this new strategy came to be known as “presidential administration.” She notes: The Clinton OMB continued to manage a regulatory review process, but with certain variations from the Reagan and Bush model. At the front end of the regulatory process, Clinton regularly issued formal directives18 to the heads of executive agencies to set the terms of administrative action and prevent 18

Elena Kagan notes that once the directive was issued, the White House paid close attention to the agency to make sure that the “agency officials complied in a timely and effective way with the directive’s terms and exercised any discretion left to them consistently with its objectives.” pg. 2298.

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deviation from his proposed course. And at the back end of the process (which could not but affect prior stages as well), Clinton personally appropriated significant regulatory action through communicative strategies that presented regulations and other agency work product, to both the public and other governmental actors, as his own, in a way new to the annals of administrative process.19 The shift in style was subtle yet significant. In the Reagan and Bush administrations, the executive branch worked as a blunt object to review all regulations developed by the bureaucratic agencies where the Clinton administration, while continuing the review process, “relied principally on the issuance of directives to these agencies and the later appropriation of their regulatory action.”20Presidents Reagan and Bush sought to suppress bureaucratic decisionmaking while President Clinton encouraged it.21This difference in style was important because the Reagan and Bush administrations, while making significant strides toward executive branch centralization of policymaking, developed two tiers—those that “controlled” the policy and thus were political appointees within the White House and those who “administered” those decisions once final control was exercised— those who staffed the executive branch agencies. This difference in tiers created acrimony within the executive branch. The Clinton approach, with its emphasis upon the bureaucracy, “moved control of the agencies closer than it had been to the Oval Office. [Clinton’s staff involved in the process] 19 20 21

Kagan. pg. 2249. Ibid. pg. 2315. Ibid. pg. 2315.

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came mostly from the White House policy councils, units even smaller than OIRA which were based in the West Wing and consisted entirely of political appointees.”22 In essence, President Clinton co-opted the bureaucracy. President Clinton came to office with centralization over policymaking as a key objective. For President Clinton, he would have to mold an executive branch that had been staffed and directed by twelve years of Republican presidents. President Clinton ran on the premise that he would be a “New Democrat” that would be attentive to cutting bureaucratic red tape and shrinking the government, which was essentially a modification of the platform that President Reagan first ran on in 1980 to get “government” off the backs of the people. President Clinton’s plan was drawn from a think tank called the “Progressive Policy Institute” which in practice would become the “National Performance Review” (NPR) that was chaired by Vice-President Al Gore.23The objective of NPR was: 1. Cutting red tape—the aim was to achieve results; 2. Putting customers first—the approach treated the bureaucracy as if it were a marketplace; 3. Empowering Employees to get results—the goal was to decentralize decision making to allow those bureaucrats on the “front lines” freedom to act; and 4. Cutting back to basics—this goal was meant to focus on those policies that were effective and 22

Ibid. pg. 2317. Campbell, Colin and Bert A. Rockman. The Clinton Presidency: First Appraisals. New Jersey: Chatham House Publishers. 1996. pg. 179.

23

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achieved the best results, and to trim away those that were obsolete or acted as barriers to change.24 The key objective of NPR, as I will show below, was to allow the President and his staff to coordinate executive branch policymaking. This can be seen in four key directives the President issued his first year in office. Two were in the form of memoranda and two were in the form of Executive Orders. On his first day in office, President Clinton moved quickly to control executive branch decision making.25 He issued a memorandum to the OMB and executive branch agencies that terminated the Quayle Council and subjected all regulations to the approval of “an agency head or the designee of an agency head who, in either case, is a person appointed by me and confirmed by the Senate.”26 Soon thereafter, President Clinton issued Executive Order 12,83527, which was meant to centralize and coordinate economic policy on behalf of the United States within a Council made up entirely of political appointees.28 To see how the Executive Order was meant

24

Ibid. pg. 179. Moreno, Angel. “Presidential Coordination of the Independent Regulatory Process.” Administrative Law Journal. Vol. 8, No. 461. Fall, 1994. pp. 504-05. 26 Clinton, William J. “Memorandum on Review of Regulations.” Weekly Compilation of Presidential Documents. Vol. 29, No. 4. January 21, 1993. pg. 93. 27 Clinton, William J. “Executive Order 12,835—Establishment of the National Economic Council.” Federal Register. Vol.58, No. 16. January 27, 1993. pp. 6189-90. 28 The Council was comprised of the following: (a) President, who shall serve as Chairman of the Council; (b) Vice President; (c) Secretary of State; (d) Secretary of the Treasury; (e) Secretary of Agriculture; (f) Secretary of Commerce; 25

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to lay the groundwork for centralization of policy within the White House, one need only look at the functions of the Council: (1) to coordinate the economic policy-making process with respect to domestic and international economic issues; (2) to coordinate economic policy advice to the President; (3) to ensure that economic policy decisions and programs are consistent with the President's stated goals, and to ensure that those goals are being effectively pursued; and (4) to monitor implementation of the President's economic policy agenda. The Assistant may take such actions, including drafting a Charter, as may be necessary or appropriate to implement such functions. In September of 1993, President Clinton issued the other two key pieces of the groundwork towards executive branch policymaking. On September 11, 1993, President Clinton issued a memorandum to all department and agency heads that was designed to “streamline” the

(g) Secretary of Labor; (h) Secretary of Housing and Urban Development; (i) Secretary of Transportation; (j) Secretary of Energy; (k) Administrator of the Environmental Protection Agency; (l) Chair of the Council of Economic Advisers; (m) Director of the Office of Management and Budget; (n) United States Trade Representative; (o) Assistant to the President for Economic Policy; (p) Assistant to the President for Domestic Policy; (q) National Security Adviser; (r) Assistant to the President for Science and Technology Policy; and (s) Such other officials of executive departments and agencies as the President may, from time to time, designate. Ibid. pg. 6189.

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bureaucracy, but in practicality, it was meant to more directly connect agency and department heads to presidential policymaking.29 In addition, President Clinton also made a point to broaden the circle of who the memorandum applied to, emphasizing the inclusion of the independent regulatory agencies as well as the executive branch agencies under White House control. This is significant in so far as the independent regulatory agencies have largely enjoyed freedom from executive branch pressure. President Clinton’s most significant action, however, came when he issued Executive Order 12,866.30 Executive Order 12,866 replaced President Reagan’s Executive Orders 12,291 and 12,498, while not completely doing away with some of the key provisions of those orders. The key provisions that were retained were a significant regulatory oversight role for the OMB, an annual regulatory planning process that was a key part of EO 12,49831

29

Clinton, William J. “Memorandum on Streamlining the Bureaucracy.” Weekly Compilation of Presidential Documents. Vol. 29, No. 37. Washington D.C.: Government Printing Office September 11, 1993. pg. 1738-39 30 Clinton, William J. “Executive Order 12,866—Regulatory Planning and Review.” Federal Register. Vol. 58, 190. Washington D.C.: Government Printing Office. October 4, 1993. pp. 51735-51744. 31 According to the Executive Order, at the beginning of each year’s planning cycle, the Vice President and all the agency heads would “seek a common understanding of priorities” and would work to “coordinate regulatory efforts to be accomplished in the upcoming year.” Each agency was to submit a plan of all significant regulatory actions (for a definition of “significant regulatory action, see footnote 33) for approval by the agency head. The plan contained, at a minimum: (A) A statement of the agency's regulatory objectives and priorities and how they relate to the President's priorities; (B) A summary of each planned significant regulatory action including, to the extent possible, alternatives to be considered and preliminary estimates of the anticipated costs and benefits; (C) A summary of the legal basis for each such action, including whether any aspect of the action is required by statute or court order;

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and cost-benefit analysis to “serve as the basic criterion in assessing regulatory decisions.”32 Further, OIRA was still allowed to block any regulatory action that fell into a couple of key categories and could allow OIRA to block any regulatory action from proceeding if OIRA felt it warranted further consideration.33 This allowed OIRA, and the OMB, to remain as a major impediment to autonomous agency decisionmaking. The difference in the Reagan Executive Orders is a reflection, as I noted above, in the role for the bureaucracy. Where the Reagan and Bush administrations saw the bureaucracy as a negative, President Clinton saw it as a positive. First, the Executive Order limited the time that was available for OMB review the rule once it was submitted by the executive branch

32 33

(D) A statement of the need for each such action and, if applicable, how the action will reduce risks to public health, safety, or the environment, as well as how the magnitude of the risk addressed by the action relates to other risks within the jurisdiction of the agency; (E) The agency's schedule for action, including a statement of any applicable statutory or judicial deadlines; and (F) The name, address, and telephone number of a person the public may contact for additional information about the planned regulatory action. pp. 51738-39 Kagan. pp. 2285-86 The categories, labeled as those with rules involving significant regulatory action: (1) Have an annual effect on the economy of $ 100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive order. pg. 51738.

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agency to forty-five days, to be extended only one time for an additional thirty days if OIRA requested it.34 During the Reagan and Bush administrations, it was common for the OMB to delay as a way to pressure an agency to revise its proposed rules.35 Second, the Executive Order made the rulemaking process more transparent than in the Reagan and Bush administrations. Section 6(4)(AD) provides for an elaborate process that makes the rulemaking process public.36For example, access to the OMB is limited to the Administrator of OIRA (or a designee) by outside interest groups, and during this meeting, a representative of the agency under question is invited to attend. Further, a log and transcript of the complete meeting and all communications is made public by OIRA after the action has been published in the Federal Register. Note the difference in this approach versus the case study in the preceding chapter regarding the “Clean Air Act Amendments” rulemaking process, where outside industry maintained private contacts with staff in the Quayle Council as well as the White House, without any input from the EPA. Third, the Executive Order did not simply rely upon cost-benefit analysis as the basis for issuing regulations. As I noted above, the Clinton Executive Order shared with the Reagan Executive Orders a basis for costbenefit analysis, but the Clinton Order veered to also include such qualitative

34 35 36

Ibid. Section 6, (F)(2)(B)&(C). pg. 51742. Kagan. pg. 2286. Executive Order 12,866. pg. 51742-73.

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measures as health, safety, and the environment.37 This benefited each agency, because the heads of the various agencies were supposed to utilize the mixed approach as a way to increase innovation and flexibility. In actuality, this was a deliberate move away from the rigid market-based pressures placed upon the executive branch agencies during the Reagan and Bush administrations and toward one that used political incentives to move agency heads into line with the president’s preferred policy positions.38 Fourth, and finally, the Executive Order made it a deliberate effort to include the independent regulatory agencies in the planning process, something that the Reagan Executive Orders specifically did not. In Section 4(b&c), the Executive Order involves the independent regulatory agencies in the planning process described above that includes the Vice-President and the heads of the executive branch agencies.39 The result was to reflect a “strong commitment to presidential oversight of administration…”40 As James Blumstein, the nominee as Bush’s director of OIRA41has observed, “[t]he Clinton administration not only accepted, but also extended

37

Ibid. Section 4(C)(D). pg. 51739. See Seidenfeld, Mark. “A Big Picture Approach to Presidential Influence on Agency Policymaking.” Iowa Law Review. Vol. 80, No. 1. October, 1994. 39 Executive Order 12,866. pg. 51738. 40 Blumstein, James F. “Regulatory Review by the Executive Office of the President: An Overview and Policy Analysis of Current Issues.” Duke Law Journal. Vol. 51, No. 851. December, 2001. pg. 868. 41 Professor Blumstein, who now is on the faculty at Vanderbilt Law School, had the distinction of being the last nominee to the post of OIRA early in the Bush administration. The Senate never acted on the confirmation of Professor Blumstein, and thereafter a battle ensued between the Congress and the president over the role the OIRA had played during the Reagan administration. The Congress wanted the process to be more transparent, and 38

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the Unitarian premises of the Reagan and Bush administrations.”42In reading the exhaustive article by domestic policy advisor for the Clinton administration Elena Kagan, Blumstein, and I, can arguably conclude that what the Clinton administration did was to perfect a process that began imperfectly twelve years before when the Reagan administration took office. Blumstein notes that when he proposed bringing the independent regulatory agencies under the umbrella of the OIRA, as the Clinton administration had done, it was nothing less than a major controversy. Blumstein notes: Although Kagan does not characterize her position as Unitarian, once one pierces to the substance there is remarkable accord. This post-Clinton administration consensus surely was not a consensus a decade ago during my OIRA administrator confirmation process, when these issues were controversial and the distinctions, for purposes of centralized presidential regulatory review, between independent agencies and other executive agencies were not fully understood or accepted.43 Thus, in the first leg of the Unitary Executive, the Clinton administration was able to build upon the legacy of the Reagan and Bush administrations, and master, largely because the political environment in 1993 was different, what the Reagan and Bush administrations were not able to do—that is extending executive branch centralization to include the independent regulatory agencies along with the traditional agencies under

the Bush administration resisted. The Congress then withheld funding to the OIRA, and President Bush shifted OIRA authority to the Quayle Council. 42 Blumstein. pg. 874. 43 Ibid. pg. 878.

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executive branch control. What is clear in Executive Order 12,866 is the “primacy of the president’s priorities in agency decisionmaking…”44 The Political Signing Statement The use of the political signing statement, as I have suggested, is used by president’s to insure that policy, when possible, is bent towards the president’s preferences or it is used in instances where the president rewards preferred constituents. This is more than the simple rhetorical signing statement, where the president merely mentions the preferred constituent as a reward for support. In the political signing statement, the president actually directs executive branch agencies to side with his supporters in a battle that he is having with political opponents. Only because of the rise of the Unitary Executive can a direction to executive branch agencies be seen as successful as it has been. As I have shown, the Reagan administration used the political signing statement to successfully interpret vague language in politically contentious legislation, and as I will show below, the Clinton administration used the political signing statement to respond to and advance his election year positioning. I will look at two issues—abortion and HIV—as how President Clinton rewarded two powerful constituencies—pro-choice activists and homosexual activists—with the political signing statement. Abortion

44

Ibid. pg. 853.

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In 1996, the Congress passed the most massive reconstruction of the telecommunications industry since the Federal Communications Act of 1934 was passed to regulate the newly created radio, telegraph, and telephone industries. While the more significant portions of the act largely went uncovered,45what did receive a tremendous degree of coverage was the highly controversial Communications Decency Act (CDA). The CDA was added to the Telecommunications Act as an attempt to regulate pornography and obscenity on the Internet. While Section 50246 of the Act received a great deal of attention, what was largely overlooked was an amendment that revised the Comstock Act of 1934.47 Section 50748 of the Act was actually an amendment slipped into the Act at the last minute as a Managers Amendment extending the Comstock

45

The most significant portions dealing with media consolidation, ownership of the new digital spectrum, and the increase in the upper limits of radio and television ownership by any one media outlet received minimal coverage yet had the greatest effect on most Americans. For more information, see McChesney, Robert. Rich Media, Poor Democracy. Communication Politics in Dubious Times. Illinois: University of Illinois Press. 1999. 46 Section 502 prohibits the use of any interactive computer service to "display in a manner available to a person under 18 years of age" any indecent information "whether or not the user of such service placed the call or initiated the communication." Corn-Revere, Robert. “New Age Comstockery.” Commlaw Conspectus. Vol. 4, No. 173. Summer, 1996. pg. 173. 47 The Comstock Act of 1934 was named for Anthony Comstock, the Secretary of the Committee for the Suppression of Vice, and was aimed at, among other things, the suppression of information regarding contraception as the dissemination of obscene material. Herndon, Sheryl L. “The Communications Decency Act: Aborting the First Amendment?” Richmond Journal of Law and Technology. Vol. 3, No. 2. 1997. http://www.richmond.edu/~jolt/v3i1/herndon.html Accessed 5/28/03. 48 The Amendment read: Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier or
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Act to the dissemination of abortion information over the Internet. The Amendment was the product of Representative Henry Hyde (R. Il), and a long time opponent of abortion. Even though many members of Congress complained that they did not know the Amendment was added to the bill when they voted on it, the Telecommunications Act passed with section 507 intact. When President Clinton signed the Act, he noted: 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.

service (as defined in § 230 (e)(2) of the Communications Act of 1934>], for carriage in interstate or foreign commerce - . . . (C) any drug, medicine, article, or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; or any written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, how, or of whom, or by what means any of such mentioned articles, matters, or things may be obtained or made; or Whoever knowingly takes , from such express company or other common carrier any matter or thing the carriage of which is herein made unlawful Shall be fined under this title or imprisoned not more than five years, or both, for the first such offense and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter. Herndon, Sheryl L.

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Therefore, the Department will continue to decline to enforce that provision of current law, amended by this legislation, as applied to abortion-related speech.49 Restrictions on abortion information, as President Clinton notes, are valid by law. In the 1970s, Henry Hyde had successfully cut off funding for federal money to pay for abortions, and in 1989, the Supreme Court decided that reasonable restrictions could be placed on abortion and abortion-related information.50 Additionally, a point of contention in the Rust decision described in Chapter Five was a Bush interpretation of Title X of the “Public Health Service Act”51to include the prohibition of federal funds not just for abortions but also for abortion-counseling. Thus the Clinton administration was using the signing statement for purely political, rather than constitutional reasons. As Sheryl Herndon suggests, there is no reason to believe that the Supreme Court would come to the same conclusion as the Clinton administration.52 She notes that the Court has never had a general theory of First Amendment issues and tends to decide them on a case by case basis. Further: In addition to the Court's "difficulties and sharp differences of opinion in deciding the precise boundaries dividing what is constitutionally permissible and impermissible in [the First Amendment] field", a constitutional analysis of § 507 is further complicated by two issues. First, the 49

Clinton, William J. “Statement on Signing the Telecommunications Act of 1996.” Weekly Compilation of Presidential Documents. Vol. 32, No. 6. February 12, 1996. pg. 219. 50 Webster v. Reproductive Health Services. 492 U.S. 490 (1989) 51 42 U.S.C. 254. 52 Herndon, Sheryl L.

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Internet is a new medium with rapid developments and little well-defined First Amendment interpretation. Second, the Court has invoked a unique standard in cases involving abortion regulations under which it is "painfully clear that no legal rule or doctrine is safe from ad hoc nullification . . . when an occasion for its application arises in a case involving . . . abortion." These factors create significant uncertainty in what should otherwise be a predictable ruling whether from the current or a future Court.53 Before the Clinton administration could test whether the signing statement would stand or not, the courts decided in ACLU v Reno54that the CDA was unconstitutional while not addressing whether the Hyde Amendment was also unconstitutional. The Clinton administration, however, had already prepared the interest groups who favored abortion by informing them that if the law remained in place, “the government would not prosecute people who discussed abortion on-line."55 HIV Another election year signing statement that addressed a different community of interests—the homosexual community—was issued when President Clinton signed the “National Defense Authorization Act for Fiscal Year 1996”.56

53

Ibid. No. 96-511. June 26, 1996. Both the Court of Appeals and the U.S. Supreme Court upheld the lower court ruling. 55 Herndon. 56 P.L. 104-106. 54

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President Clinton cited as problematic a section57 of the bill that dealt with the discharge of those military personnel who were HIV-positive. In an

57

Section 567. It read as follows: SEC. 567. DISCHARGE OF MEMBERS OF THE ARMED FORCES WHO HAVE THE HIV-1 VIRUS. (a) IN GENERAL- (1) Section 1177 of title 10, United States Code, is amended to read as follows: `Sec. 1177. Members infected with HIV-1 virus: mandatory discharge or retirement `(a) MANDATORY SEPARATION- A member of the armed forces who is HIV-positive shall be separated. Such separation shall be made on a date determined by the Secretary concerned, which shall be as soon as practicable after the date on which the determination is made that the member is HIV-positive and not later than the last day of the sixth month beginning after such date. `(b) FORM OF SEPARATION- If a member to be separated under this section is eligible to retire under any provision of law or to be transferred to the Fleet Reserve or Fleet Marine Corps Reserve, the member shall be so retired or so transferred. Otherwise, the member shall be discharged. The characterization of the service of the member shall be determined without regard to the determination that the member is HIV-positive. `(c) DEFERRAL OF SEPARATION FOR MEMBERS IN 18-YEAR RETIREMENT SANCTUARY- In the case of a member to be discharged under this section who on the date on which the member is to be discharged is within two years of qualifying for retirement under any provision of law, or of qualifying for transfer to the Fleet Reserve or Fleet Marine Corps Reserve under section 6330 of this title, the member may, as determined by the Secretary concerned, be retained on active duty until the member is qualified for retirement or transfer to the Fleet Reserve or Fleet Marine Corps Reserve, as the case may be, and then be so retired or transferred, unless the member is sooner retired or discharged under any other provision of law. `(d) SEPARATION TO BE CONSIDERED INVOLUNTARY- A separation under this section shall be considered to be an involuntary separation for purposes of any other provision of law.

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earlier version of the authorization bill, President Clinton vetoed it for

`(e) ENTITLEMENT TO HEALTH CARE- A member separated under this section shall be entitled to medical and dental care under chapter 55 of this title to the same extent and under the same conditions as a person who is entitled to such care under section 1074(b) of this title. `(f) COUNSELING ABOUT AVAILABLE MEDICAL CARE- A member to be separated under this section shall be provided information, in writing, before such separation of the available medical care (through the Department of Veterans Affairs and otherwise) to treat the member's condition. Such information shall include identification of specific medical locations near the member's home of record or point of discharge at which the member may seek necessary medical care. `(g) HIV-POSITIVE MEMBERS- A member shall be considered to be HIV-positive for purposes of this section if there is serologic evidence that the member is infected with the virus known as Human Immunodeficiency Virus-1 (HIV-1), the virus most commonly associated with the acquired immune deficiency syndrome (AIDS) in the United States. Such serologic evidence shall be considered to exist if there is a reactive result given by an enzyme-linked immunosorbent assay (ELISA) serologic test that is confirmed by a reactive and diagnostic immunoelectrophoresis test (Western blot) on two separate samples. Any such serologic test must be one that is approved by the Food and Drug Administration.'. (2) The item relating to such section in the table of sections at the beginning of chapter 59 of such title is amended to read as follows: `1177. Members infected with HIV-1 virus: mandatory discharge or retirement.'. (b) EFFECTIVE DATE- Section 1177 of title 10, United States Code, as amended by subsection (a), applies with respect to members of the Armed Forces determined to be HIV-positive before, on, or after the date of the enactment of this Act. In the case of a member of the Armed Forces determined to be HIVpositive before such date, the deadline for separation of the member under subsection (a) of such section, as so amended, shall be determined from the date of the enactment of this Act (rather than from the date of such determination). http://thomas.loc.gov/cgibin/query/F?c104:4:./temp/~c104U5rgwY:e503398: Accessed April 12, 2002.

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containing, among other things, the HIV provision.58 The section had been placed into the bill by Representative Robert Dornan (R. Ca.), who was running for President of the United States. In President Clinton’s signing statement, he noted that neither the Secretary of Defense nor the Chair of the Joint Chiefs of Staff found this policy to be wise—that it would waste government resources spent on training and would do nothing to improve the defenses of the United States.59 Thus, President Clinton not only directed the Department of Justice to not defend this provision if and when it is challenged, he further instructed the executive branch agencies that would have jurisdiction in this area to give those service members and their families affected by the provision the “full benefits to which they are entitled…”60 Further, the Clinton administration took the unprecedented action of sending White House lawyer Jack Quinn and Assistant-Attorney General Walter Dellinger before the press to very publicly show the commitment the administration had made toward those service personnel afflicted with the HIV virus. Jack Quinn told a reporter during the press conference that if the provision was not struck down by the courts, then the president was willing to use a presidential directive to insure that the thousands of military personnel 58

See Clinton, William J. “Message to the House of Representatives Returning Without Approval the National Defense Authorization Act for Fiscal Year 1996.” Weekly Compilation of Presidential Documents. Vol. 31, No. 2233. December 28, 1995. 59 Clinton, William J. “Statement on Signing the National Defense Authorization Act of 1996.” Weekly Compilation of Presidential Documents. Vol. 32, No. 7. Washington D.C. : Government Printing Office. February 10, 1996. pp. 260-62. 60 Ibid. pg. 261

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affected by the section would receive the full benefits “above and beyond what any honorably discharged member of the service” would receive.61 President Clinton could not veto this bill since it was passed by “veto-proof margins” and contained “many items, including a military pay raise, that the Pentagon” badly wanted.62 Both Representative Dornan and other commentators noted that this was posturing toward the homosexual community during an election year. Representative Dornan argued that President Clinton “continues to ignore the needs and requirements of the military while deferring to the wishes of a vocal minority who donate heavily to his presidential campaign.”63 Mr. Dornan further suggested that there was a snowball’s chance in hell” that the section would be repealed and that he “welcomed the court challenge.”64 The act would not take effect until six months after it was signed. However, the Clinton administration successfully worked for its repeal65 just two months after he had signed the bill into law, thus never giving the administration the chance to test whether the president would successfully

61

“Press Briefing by Counsel to President Jack Quinn and Assistant Attorney General Walter Dellingers.” M2 Presswire. February 12, 1996. Lexis-Nexis database, Newsfile, All. Accessed May 20, 2003. 62 Strobel, Warren P. “Clinton: Constitution Blocks HIV Discharges; But He’ll Sign Defense Bill with Provision. The Washington Times. Saturday, February 10, 1996. Part A; Pg. A1. 63 Lewis, Kathy. “Clinton Blasts HIV Provision; But He Says He Will Sign Military Bill. The Dallas Morning News. Saturday, February 10, 1996. Pg. 1A. 64 Strobel. 65 See section 2702 (Repeals provisions relating to the mandatory discharge or retirement of members of the armed forces who are infected with the HIV-1 virus.), “Making Appropriations for Fiscal Year 1996 to Make a Further Downpayment Toward a Balanced Budget, and for Other Purposes.” P.L. 104-134. April 26, 1996.

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direct the executive branch agencies to work in defiance of the wishes of Congress. The use of the political signing statement to deliberately aid key constituencies was a common strategy of the Clinton administration, as the two examples provided above help to illustrate. The political signing statement in these instances should not be confused with the rhetorical signing statement, because they are very similar. In issuing a political signing statement, the administration is willing to go further than simply adding a statement to a bill being signed into law—it outlines a strategy that the administration is willing to take in order to obtain the political benefits that it seeks. In the instances that I addressed above, the issue was resolved before it got to that point. The Oath Clause and Protection of Prerogatives The Clinton administration was very aggressive in asserting the coordinate power of the president to not defend or enforce those laws that was determined to be unconstitutional. A key part of not defending or enforcing laws deemed unconstitutional was the use of the constitutional signing statement. The Clinton administration had not been in office a year when Walter Dellinger, Assistant-Attorney General in the Office of Legal Counsel wrote a memorandum to Bernard Nussbaum, Counsel to the President, on the “Legal

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Significance of the Presidential Signing Statement.”66 In this memorandum, Dellinger argues that the president may use the signing statement to “declare that the legislation (or relevant provisions) would be unconstitutional in certain applications; statements that purport to construe the legislation in a manner that would ‘save’ it from unconstitutionality; and statements that state flatly that the legislation is unconstitutional on its face.”67 Dellinger argued that when a president declares a law to be unconstitutional, and then even announces that he will not enforce it, it is akin to the Supreme Court declaring sections of a piece of legislation to be unconstitutional.68 True to the role that the OLC had played through the Reagan and Bush years, Dellinger notes that the president must be aggressive in protecting the prerogatives of the office: If the President may properly decline to enforce a law, at least when it unconstitutionally encroaches on his powers, then it arguably follows that he may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing. If so, then a signing statement that challenges what the President determines to be an unconstitutional encroachment on his power, or that announces the President's unwillingness to enforce (or willingness to litigate) such a provision, can be a valid and reasonable exercise of Presidential authority.69 66

Dellinger, Walter. “The Legal Significance of Presidential Signing Statements.” Memorandum, Office of Legal Counsel. November 3, 1993. http://www.usdoj.gov/olc/signing.htm. Accessed November 12, 2001 67 Ibid. 68 Ibid. 69 Ibid.

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Nearly a year later, after the White House Counsels Office continued to question Dellinger on the authority the president has to decline to enforce sections of legislation he decides is unconstitutional, he followed up with a second memorandum, and probably the most lucid thinking of the president’s coordinate power, outlining how and why a president has this authority. In a memorandum to White House Counselor Abner J. Mikva, Dellinger argues that the president has “enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency.”70 Dellinger suggests that the president has independent power to determine the constitutional validity of the legislation he is signing into law that goes beyond his veto power. The president should consider if a piece of legislation would likely be struck down by the Court, and if he thinks so, then he should not enforce it. However, even if he cannot make a determination of whether the Court would uphold or strike down the section of legislation, the president is constitutionally obliged to “act in accordance with the laws—including the Constitution, which takes precedence over other forms of law. This obligation is reflected in the Take Care Clause and in the President’s oath of office (emphasis added).”71

70

Dellinger, Walter. “Presidential Authority to Decline to Execute Unconstitutional Statutes.” Memorandum for the Honorable Abner J. Mikva, Counsel to the President. http://www.usdoj.gov/olc/nonexcut.htm. November 2, 1994. Accessed November 12, 2001. 71 Ibid.

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The OLC continued to issue opinions72 throughout the Clinton administration upholding this enhanced responsibility of the president to independently determine the constitutional veracity of sections of legislation that he had signed into law, even taking the unique step of offering a constitutional construction of a piece of legislation four years after the Clinton administration had signed it.73 Constitutional Signing Statements As I noted above, President Clinton did not issue as many constitutionally-oriented signing statements as President Bush did, but the pattern of signing statements was very similar to President Bush’s (show graph). President Clinton issued most of his constitutional signing statements in the area that dealt with foreign affairs, precisely where presidential power is at its zenith.74

72

See, for example, Dellinger, Walter. “Deployment of United States Armed Forces into Haiti.” Letter to Senators Robert Dole, Alan K. Simpson, Strom Thurmond, and William S. Cohen. http://www.usdoj.gov/olc/haiti.htm. September 27, 1994. Accessed 1/24/03; Dellinger, Walter. “Involvement of the Government Printing Office in Executive Branch Printing and Duplicating.” July 23, 1996. http://www.usdoj.gov/olc/gporecn.htm Accessed 1/24/03; Shiffrin, Richard. “Severability and Duration of Appropriations Rider Concerning Frozen Poultry Regulations.” Memorandum for James S. Gilliland, General Counsel, U.S. Department of Agriculture. http://www.usdoj.gov/olc/chadusda.2.htm June 4, 1996. Accessed 1/24/03; Moss, Randolph. “Delegation of the President’s Power to Appoint Members of the National Ocean Research Leadership Council.” Memorandum Opinion for the General Counsel, Department of the Navy. http://www.usdoj.gov/olc/nolc.htm January 29, 1997. Accessed 1/24/03. 73 Moss, Randolph. “Memorandum for the General Counsel Immigration and Naturalization Service.” Opinion of the Office of Legal Counsel. http://www.usdoj.gov/olc/ina235Anew.htm October 23, 2000. Accessed 1/24/03. 74 Louis Fisher noted that “in the realm of foreign affairs and national security, Mr. Clinton takes ‘an expansive view of Presidential power…” Pear, Robert. “The Presidential Pen is Still Mighty.” The New York Times. Section Four, Page Three. June 28, 1998.

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In addition to using the constitutional statement in areas of foreign affairs, the Clinton administration was also willing to use the signing statement in areas that attracted a lot of public attention to areas that seemed highly mundane. For example, in 1998, the Congress passed legislation to commemorate the centennial of flight celebrations that would occur in 2003. The “Centennial of Flight Commemoration Act”75 authorized the Centennial of Flight Commission to devise any “logo, emblem, seal, or descriptive or designating mark that is required to carry out its duties or that it determines is appropriate for use in connection with the commemoration of the centennial of powered flight” as well as to refuse or allow the use of the logos, emblems, seals, or other designated marks.76 When President Clinton signed the act into law, he noted that this particular authorization to the Commission violated the Appointments Clause and the Commission could not perform this function as it is written.77So before the Commission could fully perform its duties, the Congress was forced to pass remedial legislation to correct the objectionable provision, now having the Commission provide input to the NASA administrator, who would make the final decisions.78

75

P.L. 105-139. November 13, 1998. Section 9, P.L. 105-139. 77 Clinton, William J. “Statement on Signing The Centennial of Flight Commemoration Act— S.1397.” Weekly Compilation of Presidential Documents. Vol. 34, No. 16. November 13, 1998. pp. 2310-11. 78 P.L 106-68 76

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In an example of how the protection of presidential prerogatives is institutionalized within the OLC, we find the objections President Clinton took to the role of the Government Printing Office (GPO) in utilizing executive functions. In the 1995 “Legislative Branch Appropriations Act”,

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President

Clinton objected to a more broad intervention into executive branch functions and noted that the offending section would be implemented in a way to “minimize the potential constitutional deficiencies.”80 In a memorandum from acting-OMB director Alice Rivlin to executive branch agency heads, an accommodation had been reached with the Congress to fix the offending section and until such time to “maintain the status quo regarding present printing and duplicating arrangements during Fiscal Year 1995 to allow this initiative to go forward.”81 In the aftermath of the 1994 midterm election and the president’s party losing power in Congress, all arrangements between the president and leaders in Congress were off.82 To insure that the administration’s position was firm and clear, the Office of Legal Counsel issued an opinion in the form of a memorandum to Emily C. Hewitt, General Counsel for the General Services Administration, which in forthright terms claimed that the

79

Public Law 103-283. Clinton, William J. “Statement on Signing the Legislative Branch Appropriations Act of 1995.” Weekly Compilation of Presidential Documents. Volume 30, Number 30. July 22, 1994. pp. 1541-42. 81 Relyea, Harold C. “Public Printing Reform: Issues and Actions.” Congressional Research Service Report for Congress. 98-687. April 5, 2001. http://www.cnie.org/nle/crsreports/government/gov-36.cfm. Accessed April 3, 2002. 82 Ibid. 80

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Government Printing Office (GPO) was a legislative agent and therefore in violation of the separation of powers doctrine in its effort to control executive branch printing.83 In a lengthy treatise that outlines the history of the government printing regime, Dellinger argues that the GPO was intentionally made a congressional entity, and where it has attempted to direct executive branch officials regarding their responsibilities with government documents, the president has consistently noted that this is in violation of the separation of powers doctrine. In the current act, where the conflict between the executive and legislative branches had been intensifying over who controlled executive branch printing, the Congress insured that the president comply with GPO orders by inserting the following language into the legislation: None of the funds appropriated for any fiscal year may be obligated or expended by any entity of the executive branch for the procurement of any printing related to the production of Government publications (including printed forms), unless such procurement is by or through the Government Printing Office.84 In Dellinger’s direction to Emily Hewitt, he wrote that due to the unconstitutional infringement upon executive branch prerogatives, he allowed executive branch agencies to disregard this section of the statute

83

Dellinger, Walter. “Involvement of the Government Printing Office in Executive Branch Printing and Duplicating.” Opinion of the Office of Legal Counsel. 1996 OLC LEXIS 16. May 31, 1996. (Memorandum for Emily C. Hewitt, General Counsel, General Services Administration on how to implement the terms of the signing statement to the “Legislative Branch Appropriations Act of 1995.” Public Law 103-283) 84 “Legislative Branch Appropriations Act of 1995.” Public Law 103-283.

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and to do so without any fear of criminal or civil prosecution. Dellinger wrote: It appears that, except for qui tam suits,…, the only entity that could bring a civil or criminal action against a certifying official in court would be the executive branch, and more specifically the Department of Justice. Any actions considered by the Department of Justice would necessarily be in accord with the constitutional views expressed by the President in his signing statement and the opinions of this Office. Consequently, we see little risk to an officer who acts consistently with our interpretation.85 After the Republicans took over control of the Congress, efforts were made to decentralize control rather than centralize control of government printing, which worked to the advantage of the administration. The president was never forced to test the challenge laid forth by the OLC to disregard a section of law, and as such, the precedent and the OLC opinion remains intact. Department of Energy and the National Nuclear Security Administration An illustrative case of the lengths the Clinton administration would go to defend the prerogatives of the Office of the Presidency was in the breaches at the nuclear laboratories in the United States that set off a panic that a foreign government—in this case the Chinese—had successfully stolen the United States’ nuclear secrets.

85

Dellinger, Walter. “Involvement of the Government Printing Office in Executive Branch Printing and Duplicating.” pp. 39-40.

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In early 1999, a series of reports, most of which appeared in The New York Times, seemed to indicate that employees at the Los Alamos National Laboratory in New Mexico provided the Chinese with classified information. Soon thereafter, President Clinton asked his Presidential Foreign Intelligence Advisory Board (PFIAB) to “undertake a review of the security threat at the Department of Energy’s (DOE) weapons labs and the adequacy of measures that have been taken to address it.”86 The PFIAB released its report, known as the Rudman Report, on June 15, 1999. The report was titled “Science at its Best, Security at its Worst: A Report on Security Problems at the U.S. Department of Energy.”87The report found that the DOE was a bureaucracy that could not be fixed, and instead it needed to be reorganized to make it more accountable. It was the recommendation of the report that the weapons program at DOE be put in an entity known as the “Agency for Nuclear Stewardship.” The Director of the ANS would be “dual-hatted” as an Under Secretary of Energy, and the new agency would “oversee all nuclear weapons–related matters previously housed in DOE, including Defense Programs and Nuclear Nonproliferation; it also will oversee all functions of the National Weapons labs. (If Congress opts to create a totally independent agency, the Director should report

86

Clinton, William J. “Statement by the President.” Office of the Press Secretary. http://www.fas.org/irp/news/1999/06/990615-prc-wh1.htm June 15, 1999. Accessed 4/15/03. 87 Rudman, Warren. “Science at its Best, Security at its Worst: A Report on the Security Problems at the U.S. Department of Energy.” President’s Foreign Intelligence Advisory Board. June 15, 1999. http://www.fas.org/sgp/library/pfiab/ Accessed 4/15/03.

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directly to the President.)”88The concept of “dual-hatting” meant that the Director would be both the head of the ANS as well as responsible directly to the Secretary of Energy. In 1999, there were five separate bills89 that attempted to rectify the problems with the DOE, some of which restructured the agency and some of which completely abolished it. The bill that finally emerged was the “National Defense Authorization Act for Fiscal Year 2000.”90 The Clinton administration had supported another bill, the “Intelligence Authorization Act for Fiscal Year 2000”91 that contained the Agency for Nuclear Stewardship.92 That bill never made it out of Congress with the ANS intact. However, in the “National Defense Authorization Act”, the conference committee snuck in a new agency that the administration bitterly opposed. That agency became known as the “National Nuclear Security Administration,” whose director enjoyed semi-autonomy to care for “the safety, reliability, and effectiveness of the U.S. nuclear weapons stockpile,

88

Ibid. Those bills were: S.896, “The Department of Energy Abolishment Act”; HR 1649, “The Department of Energy Abolishment Act”; S. 1059, “The National Defense Authorization Act for FY 2000”; HR 2032, “A bill to amend the DOE Organization Act to establish a Nuclear Security Administration and an Office of Under Secretary for National Security in DOE”; and S.1009, “the Intelligence Authorization Act for FY 2000”. 90 P.L. 106-65. October 5, 1999. 91 P.L. 106-120. December 3, 2000. 92 In the “Statement of Administrative Policy” regarding the “Intelligence Authorization Act,” the Clinton administration noted: “Any reorganization of the Department's activities needs to include comprehensive Presidential and Secretarial authority over the operation and management of the Agency for Nuclear Stewardship.” See “S. 1009 - Intelligence Authorization Act for Fiscal Year 2000.” Statement of Administration Policy. Office of Management and Budget. http://clinton2.nara.gov/OMB/legislative/sap/S1009-s.html July 20, 1999. Accessed June 1, 2003. 89

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nuclear non-proliferation, and naval nuclear reactors” while the Secretary of Energy would “ultimately remain responsible for formulation of policies and oversight of NNSA operations, and he will have the staff and authority to do that job.”93 When President Clinton signed the bill, he noted his disappointment with the last minute switch to a provision that the administration had clearly signaled to the Congress that it opposed, and that this new agency would “limit the Secretary’s ability to employ his authorities to direct—both personally and through subordinates of his own choosing—the activities and personnel of the NNSA. Unaddressed, these deficiencies of the Act would impair effective health and safety oversight and program direction of the Department’s nuclear defense complex.”94 President Clinton then bluntly stated: 1. Until further notice, the Secretary of Energy shall perform all duties and functions of the Under Secretary for Nuclear Security. 2. The Secretary is instructed to guide and direct all personnel of the National Nuclear Security Administration by using his authority, to the extent permissible by law, to assign any Departmental officer or employee to a concurrent office within the NNSA. 3. The Secretary is further directed to carry out the foregoing instructions in a manner that assures 93

Spence, Floyd D. “Statement of Chairman Floyd Spence, Full Committee Hearing on National Nuclear Security Administration.” March 2, 2000. http://www.house.gov/hasc/openingstatementsandpressreleases/106thcongress/00-0302spence.pdf Accessed 4/15/03. 94 Clinton, William J. “Statement on Signing the National Defense Authorization Act for Fiscal Year 2000.” Weekly Compilation of Presidential Documents. Vol. 35, No. 40. October 5, 1999. pg. 1928.

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the Act is not asserted as having altered the environmental compliance requirements, both procedural and substantive, previously imposed by Federal law on all the Department's activities. 4. In carrying out these instructions, the Secretary shall, to the extent permissible under law, mitigate the risks to clear chain of command presented by the Act's establishment of other redundant functions by the NNSA. He shall also carry out these instructions to enable research entities, other than those of the Department's nuclear defense complex that fund research by the weapons laboratories, to continue to govern conduct of the research they have commissioned. 5. I direct the Director of the Office of Personnel Management to work expeditiously with the Secretary of Energy to facilitate any administrative actions that may be necessary to enable the Secretary to carry out the instructions in this Statement.95 Members of Congress were furious with the President’s statement. First, they were upset that the President instructed the Secretary of Energy to assume the role of the new Director of the NNSA, to which Secretary Bill Richardson and several other DOE employees served concurrently, and second, that the Director, if and when appointed, would be “dual-hatted” when the law specifically gave him or her a degree of autonomy. When Secretary Richardson appeared before Congress the day after President Clinton signed the law, he told the House Armed Services Committee that he did not feel obligated to follow the intent of the law because the version that the Clinton administration had told the Congress they supported was

95

Ibid. pp. 1928-1929.

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stripped out and in secret this new agency was inserted in its place.96When Secretary Richardson was directed to testimony given by the General Accounting Office and the Congressional Research Service that the actions by the Clinton administration undermined the United States’ national security, Secretary Richardson responded: “I have yet to find the GAO to say something positive about anything.”97 The Clinton administration did appoint a Director of the NNSA98 in the spring of 2000, and by that time the Congress passed two pieces of legislation making it clear the responsibilities of the Director of the NNSA. In the first law99, Congress specified that the “exclusive reasons for removal from office as Under Secretary for Nuclear Security of the person (appointed and confirmed as Director) shall be inefficiency, neglect of duty, or malfeasance in office.”100 In President Clinton’s signing statement, he objected to the specification for reasons of dismissal, and then defined

96

“NNSA Starts Up as Richardson and Congress Clash.” Science & Technology in Congress. http://www.aaas.org/spp/cstc/bulletin/articles/3-00/nnsa.htm. 97 Ibid. 98 John Gordon was appointed and confirmed as the first Director of the NNSA amid controversy that throughout the confirmation process, Secretary Richardson was trying to sabotage his confirmation. 99 “Making appropriations for the Departments of Veterans Affairs and Housing and Urban Development,and for sundry independent agencies, boards, commissions, corporations, and offices for the fiscal year ending September 30, 2001, and for other purposes.” P.L. 106377. October 27, 2000. 100 Ibid. Section 313(b).

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“neglect of duty” to mean “among other things, a failure to comply with the lawful directives of policies of the President.”101 In the second bill102, signed three days after the bill just discussed above, the Congress, to make a deliberate point, included the exact language found in the earlier bill. In the latter bill, the language states: “The exclusive reasons for removal from office as Under Secretary for Nuclear Security of the person described in subsection (a) shall be inefficiency, neglect of duty, or malfeasance in office.”103 In President Clinton’s signing statement,

104

he again noted his problem

with the stipulations on removal and noted that he understood the “phrase ‘neglect of duty’ to include, among other things, a failure to comply with the lawful directives or policies of the President.”105 In the end, the Clinton administration would never get to see this battle to its end. By the time that President Clinton had signed the last piece of legislation, he would have a little less than three months left in office. Nonetheless, this case provides an ideal example of the lengths to which the administration was willing to challenge a provision of law that it felt infringed upon executive prerogatives. 101

Clinton, William J. “Statement on Signing the Fiscal Year 2001 Appropriations Legislation—H.R. 4635.” Weekly Compilation of Presidential Documents. Vol. 36, No. 44. November 6, 2000. pg. 2660. 102 “Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001—H.R. 4205.” P.L. 106-398. October 30, 2000. 103 Ibid. Section 3151(b). 104 Clinton, William J. “Statement on Signing the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001—H.R. 4205.” Weekly Compilation of Presidential Documents. Vol. 36, No. 44. October 30, 2000. pp. 2651-2760. 105 Ibid. pg. 2691.

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Conclusion The Clinton administration was a natural progression of the Unitary Executive. It continued with the evolution that began, for the most part, in the Reagan administration and in many ways perfected what the Reagan administration began. The Clinton administration, via the memoranda and especially Executive Order 12,866, saw to use the bureaucracy and importantly, the independent regulatory agencies, in a positive way to insure that its policies were realized whenever possible. Further, the Clinton Justice Department had been institutionalized in such a way to begin at the outset of the Clinton administration to defend the constitutional right of the president to not defend or enforce legislation that the president independently decides is unconstitutional—something referred to as enhanced responsibility. Thus the Clinton Justice Department, in particular the OLC, issued a number of opinions that echoed this theme. The political and the constitutional signing statements reflect the strategy to which the Clinton administration would take to insure the laws were faithfully executed as well as the constitution was adequately defended. The political signing statements were chosen to illustrate how the Clinton administration used this tool to obtain benefits for a preferred constituency—in this instance the pro-choice and the homosexual communities. The constitutional signing statements were chosen to illustrate the variety of ways in which the

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president sought to defend the prerogatives of his office.

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Chapter Seven Conclusion

President George W. Bush came to office amid one of the more hostile political situations in American history. Bush was elected to the presidency only after the Supreme Court stepped into the 2000 election and cleared the way for him to received the Florida electoral votes. Further, in the spring of 2001, Republican Senator Jim Jeffords (Ve.) switched to an Independent, thus giving Senate control to the Democrats—a situation which would last until January 2003. George W. Bush, then, inherited the political environment that had plagued his predecessors. Thus, President Bush from the outset continued to utilize and perfect the Unitary Executive, both in centralizing and controlling the administrative state, as well as to defend the prerogatives of his office.1 For example, in signing a defense authorization act,2 President Bush notes his objections to a requirement that executive branch officials submit recommendations to Congress, rather than the president, will be construed “in a manner consistent with the President’s constitutional authority to supervise the unitary executive branch.”3

1

In fact, an examination of this signing statements show that he is issuing them consistent with past administrations and his emphasis, like his father’s, is on the protection of presidential prerogatives. 2 “The Bob Stump National Defense Authorization Act for Fiscal Year 2003.” P.L. 107-314. 3 Bush, George W. “Statement on Singing the Bob Stump National Defense Authorization Act for Fiscal Year 2003.” Weekly Compilation of Presidential Documents. http://frwebgate3.access.gpo.gov/ December 2, 2002. Accessed 5/30/03.

A look at both the Bush’s regulatory efforts as well as the efforts by his Justice Department to protect the prerogatives of the office indicates that the Unitary Executive has become institutionalized. This dissertation has been both an effort to offer a theory of presidential power and an effort to show how that theory explains the strategic use of a particular presidential power tool. I think that it has satisfied both of these objectives. In Chapter Two, I discussed and fleshed out the theory of the Unitary Executive. The Unitary Executive rests upon two key principles— coordinancy and accountability. Coordinancy involves the president unilaterally interpreting the Constitution to insure that the laws, and all of the laws component parts, are constitutionally valid. Coordinate power is a power unto each of the Constitutional branches. It means that each branch is a power in and of itself—that no other branch can demand the other branch to do its bidding. Coordinate power forms the basis of our system of checks and balances. Even though he Reagan administration gets a great deal of credit for pushing this principle of coordinancy, it is a concept that is hardly novel. As I discussed, President Jefferson’s Attorney-General argued that the president may ignore Supreme Court orders because the Court was not seen as the final arbiter of the Constitution. President Lincoln is perhaps the more famous of our presidents who pushed the principle of coordinancy during the

Civil War when he frequently flouted orders by the Supreme Court commanding him to something. The second key principle that the Unitary Executive rests upon is the principle of accountability. Accountability holds that the president is the only nationally elected official which makes him accountable for how laws are executed. Therefore, the president is best situated to coordinate agency activities and by virtue of his accountability and central position, he can bring energy to the administrative process that agency officials cannot muster by themselves. As I take great pains to point out, the Unitary Executive can trace its roots back to the Constitution, however my contention is that it really is a creature of the last thirty years. Not that it is not important to understand what the Founding Fathers meant when they were breathing life into the executive, my argument is that it does nothing to dispel what has been taking place since the late 1960s and early 1970s. It is out of the political hydraulics of this period of time that the Unitary Executive is born. Presidents since the Nixon administration found it to their advantages to try to gain control over the vast administrative state in an effort to gain some semblance of control over the policies that they campaigned upon. Further, since the Nixon administration, and in particular the effect that Vietnam and Watergate had on the political system, there was an openly hostile environment for presidents to operate in. The

Congress, the public, the media, and the academic community all argued for the need to reign in the power of the presidency. Thus there was an assault upon presidential prerogatives, and presidents then were forced to develop the methods to counter these assaults. The state of politics then became defined as a period of divided, highly partisan government. As I discussed in Chapter Two, there has been a great deal of ink spilled on whether divided or unified government matters in the ability for the president to govern. These studies look at legislation passed after the president has left office. My argument takes place during the president’s time in office. As such, if the president perceives the environment to be hostile, and there is a great deal of evidence from their memoirs that they do, then they will attempt whatever means possible to achieve policy advantages and to defend the prerogatives of the office. To put the Unitary Executive into practice, the president turns to the Constitution, in particular the “Take Care” and “Oath” clauses of the Constitution. The “Oath” Clause allows the president to defend from encroachments upon executive prerogatives as well as to protect the constitutional rights of individuals. The “Take Care” Clause allows the president to “interpret” legislation in a manner that maximizes executive branch policy preferences. To enforce the “Oath” clause, the president relies upon the Justice Department, which has taken its duty to mean that the president will not

defend or enforce those sections of law that are “clearly unconstitutional” nor will it defend or enforce those sections of law that infringe upon the president’s prerogatives. In essence, the Justice Department, particularly the Office of Legal Counsel, acts as the president’s “shield.” The “Take Care” clause allows the president to solicit the opinions of the principle officers of the various executive branch agencies to help him to take care that the laws are faithfully executed. It is the job of the Office of Management and Budget to insure executive branch centralization and to insure that the laws are “faithfully” executed. As I noted in Chapter Two, the important role that OMB plays is as a “point of central clearance for all executive branch budgetary requests” to reduce “the ability of individual agencies to make an end run around the president and request more money from Congress.”4 As I concluded Chapter Two, I set up my theory of the Unitary Executive as an alternative to the more dominant Modern President or Neustadt Paradigm that has been used for so many years to explain the basis of presidential power. Rather than focus on the more subtle aspect of the office, my theory is a blunt instrument that allows the president to strategically and methodically use a wide array of tools to push his legislative preferences forward and to protect his office or the constitutional liberties of individuals. 4

Golden, Marissa Martino. What Motivates Bureaucrats? Politics and Administration during the Reagan Years. New York: Columbia University Press. 2000. pg.7.

It was important to first establish what theory I will be working from, and important for my work was to find a theory that best suited what I would be focusing on. I think that the Unitary Executive is such a theory. In Chapter Three, I looked specifically at the signing statement. In that chapter, I asked: What is meant by a presidential signing statement? How many signing statements have been issued from Washington to Clinton? Who issued the first signing statement? Are there any patterns in the use of the signing statement? Does the frequency vary with a president’s political situation? These were the same questions that Kenneth Mayer asked of the Executive Order in his prize winning book, With the Stroke of a Pen: Executive Orders and Presidential Power (Princeton: Princeton University Press. 2001). As I noted, this dissertation will make an important contribution to the literature on the signing statement simply because what has been written is grossly incomplete and often times dramatically inaccurate. I broke the signing statement down into three major categories: the “Constitutional” signing statement, the “Political” signing statement, and the “Rhetorical” signing statement. Constitutional signing statements are those statements that address constitutional defects in a section or sections of legislation. In it, the president can do a number of things. He can identify the problematic section and ask Congress to correct. More important to this study are the

instances in which the president instructs the Justice Department to either not defend the faulty section or to sever it from the bill, thus instructing the Justice Department along with the executive branch agencies to simply not enforce it. Political signing statements differ from constitutional signing statements in that the focus is not legal, although the statement may be structured that way. Political signing statements are meant as directives to the executive branch agencies in a way to bring the bureaucracy in line with the president’s policy preferences. They can either take advantage of vague or undefined sections of legislation that are left that way as a result of a contentious battle in Congress, or they can signal to important constituents of the president the willingness to move policy toward their positions. The rhetorical signing statement generally does not make a legal or constitutional claim, nor is it intended to be a directive to executive branch agencies, even though it is largely done for political reasons. The rhetorical strategy involves the president’s “attempt to mobilize political support by means of public comments.”5 I then placed the presidential signing statement into the growing body of literature on presidential “power tools.” The signing statement, as I described it, has been the black sheep of all the power tools, mostly overshadowed by the more high profile executive order, pocket veto, line5

Zernicke, Paul Haskell. “Presidential Roles and Rhetoric.” Political Communication and Persuasion. Volume 7. 1990. pg.231.

item veto, and presidential directives and memoranda. Nonetheless, what it shares with this literature is a greater utility by presidents in the last thirty years, a reason I explain is connected to the rise of the Unitary Executive. I demonstrated that the signing statement enjoys a long history that reaches all the way back to the Monroe administration, not the Jackson administration as most scholars note. Since the first signing statement, there have been a total of 2175 signing statements through the Clinton administration. Most of the signing statements issued are rhetorical, but important to this study was that the number of constitutional and political signing statements issued between the Reagan administration through the Clinton administration. As I demonstrated in Chapters Four through Six, this was no coincidence. This was part of a coordinated strategy to centralize control over policy and protections of presidential prerogatives that forms the basis of the Unitary Executive. I then turned my attention to a more empirical analysis of what impacts the use of the signing statement. First, I looked at the effect that elections had on the use of the signing statement. My argument was that during an election year, the president would be more inclined to use a signing statement than during an off-election year. Looking at the period 1932-2001, I found that there was statistical significance in support of my argument.

Next I looked at what affect presidential approval had on the signing statement. When I looked at a more expansive time, 1945-2000, I found that my results were statistically insignificant. However, when I restricted the time to 1968-2000, which I justified as reasonable considering it was during this time that the president became more boxed in politically and constitutionally, I found that the results for the constitutional and political statements were both significant, although insignificant for the rhetorical statement. As I noted, the reason why the rhetorical signing statement was insignificant was due to the hostile political environment that the president found himself in during most of this period, in which it made it difficult to reach out and move opinion in his preferred direction. Finally, just looking at the trend in the use of the political and constitutional signing statements from FDR to Clinton, it is easy to see that there is a dramatic increase in the use of both from Reagan through Clinton, which is a stepping off point that leads to the next chapter. It highlights what is the crux of my argument—the Unitary Executive came together in the Reagan administration, and was further developed in every administration after it. This was directly correlated with the rise in the number of both constitutional and political signing statements. In Chapter Four, I then move to wed the Unitary Executive with the signing statement, and in so doing I answer the question that no one who has studied the signing statement has yet answered—why was the Reagan

administration important to the strategic development of the signing statement? I gave credit to the Ford and Carter administrations for laying the groundwork to which the Reagan administration built the Unitary Executive upon. It was those administrations that began to seek out ways to gain executive control, albeit with no success, over the administrative agencies and it was those administrations that dealt with the assault upon executive branch prerogatives following Watergate. But the real story was the Reagan administration. A number of events converged to produce the Unitary Executive. First, the Reagan administration used two powerful executive orders6to place the Office of Management and Budget into the middle of agency rulemaking. It, along with the Office of Information and Regulatory Affairs, made sure that the executive branch agencies implemented legislation in line with the president’s preferences. Second, the Justice Department became very aggressive in protecting presidential prerogatives, obtaining from the Supreme Court the recognition of the presidential signing statement as a legitimate presidential tool. Third, the Supreme Court also sided with the Reagan administration in a couple of crucial opinions, most notably the Chevron decision in which they gave a nod to presidential interpretation of vague or ill-defined sections of legislation in the absence of a clear

6

Executive Order 12,291 and Executive Order 12,498.

congressional intent. And then fourth, the decision in 1986 to add the signing statement to the “Legislative History” section of the United States Code, Congressional and Administrative News meant that the president was using the signing statement to “announce” to the Congress, the courts, and the executive branch agencies his intent with respect to a particular piece of legislation. In Chapter Five, I turned my attention to the Bush administration and how it further pushed the Unitary Executive and the presidential signing statement. I demonstrated that the Bush administration continued with the work of the Reagan administration. President Bush, while not as comfortable with the rhetorical style that defined the Reagan presidency, certainly was very aggressive in defending the prerogatives of the office as well as exercising administrative control over the bureaucracy, even beyond what was possible during the Reagan administration. The Bush administration had continued with the move to centralize the administrative process that had begun when President Reagan issued the two important executive orders discussed above. When the Congress tried to block the ability of the Bush regulators to influence the administrative process by refusing to fund the OIRA or confirm a Director in 1989, the Bush administration simply worked around this roadblock by establishing the President’s Council on Competitiveness. The Council, also named the

“Quayle Council,” was even less accountable to Congress than OIRA was. So in an effort for Congress to try to establish some oversights of the regulatory process, the Unitary Executive responded as it should—that when push comes to shove, the president, not the Congress, is accountable for the faithful execution of the laws. The case study of the “Clean Air Act Amendments” demonstrates the effectiveness of the Quayle Council working from instructions received in the President’s signing statement for the Act. In that case study we can see the degree of influence exercised by White House political appointees over the executive branch agencies, ostensibly working to keep the president “accountable” to the public. As Michael Herz noted, the parochial views of the EPA lost out to the general views of the White House as the model of the unitary executive says it should.7 The Bush administration also took the defense of presidential prerogatives very seriously. As I noted, upon taking office, the OLC in the Bush administration carefully outlined for the president and the executive branch agencies the variety of ways that the Congress will attempt to intrude upon executive branch prerogatives, and how the White House can fight back. The OLC was also very public in protecting those prerogatives, even issuing a number of opinions declaring sections of law to void because of their interference with executive branch powers. 7

Herz, Michael. “Imposing Unified Executive Branch Statutory Interpretation.” Cardozo Law Review. 15:1-2. October, 1993. pg. 249.

Like the Reagan administration, the Bush administration also received a great degree of assistance from the Supreme Court in aiding its attempt to control policy. In the Rust decision, the Supreme Court opened the doors for the president to interpret sections of legislation that had been decided in previous administrations, in effect, as one article quipped, allow the president to “to make the law backwards.”8 One important strategy that the Bush administration employed, which had not been used prior nor after the administration, was to use the signing statement to point to an alternative legislative history in those instances in which the president lost a policy battle in the Congress. In two cases—one dealing with legislation resulting from the IranContra debacle of the Reagan administration and the other from civil rights legislation that the administration disagreed with—the Bush administration teamed up with fellow partisans in the Congress to create an alternative history that defined highly contentious terms in the legislation. In the case of the “Civil Rights Act of 1991,” the Bush administration took great pains to contradict definitions that it had worked out with the Congress and were spelled quite specifically in the Congressional Record. This strategy,

8

Clayton, Cornell W. The Politics of Justice: The Attorney General and the Making of Legal Policy. New York: M.E. Sharpe, Inc. 1992. pg. 236.

according to an interview I had with Nelson Lund, proved to be unsuccessful when it was challenged in the Courts.9 In Chapter Six, I first pointed out that even though President Clinton was a Democrat, his practices followed the trends began by the Reagan administration and continued through the Bush administration. His use of the signing statement fell in line with the previous administrations, with more emphasis on the rhetorical signing statement than either the Reagan or the Bush administrations. This is consistent with the Clinton style of governing. The Clinton administration, upon taking office, rescinded the two key executive orders of the Reagan administration and abolished the Quayle Council, all of which were important to insuring executive branch centralization. But rather than hurt the advancements made for executive control, the Clinton administration put in place a number of memoranda and a key executive order which reasserted executive branch control over the administrative state, even extending pressure out to the independent regulatory agencies, something not accomplished by the previous two administrations. The only key difference between Clinton administration and the Reagan/Bush administrations was an emphasis on the role of the bureaucracy. For President Clinton, he sought to use the bureaucracy to

9

Interview with Nelson Lund. December 20, 2002.

carry out his political agenda where the Reagan and Bush administrations sought to control it. Either way, the goal of all the administrations, which makes it consistent with the Unitary Executive, was to control the administrative agencies. If the Clinton administration differed in its approach towards the executive branch from the Reagan and Bush administrations, it was very similar in its approach towards the defense of executive branch prerogatives. A year had not even passed after the 1992 election when Assistant Attorney General Walter Dellinger issued a very public defense of the “Oath” clause and the presidential signing statement. In a follow-up memorandum, Dellinger argues that the president has enhanced responsibility to resist encroachments upon the prerogatives of the office.

10

Dellinger further

spoke in the truest form for coordinate power—that the president has an independent obligation despite the opinions of the other branches to decide the constitutional structure of bills that he signs into law. As I showed in Chapter Six, the Clinton administration was willing to use the political signing statement to extend benefits to preferred constituencies and was more than willing to aggressively assert its prerogatives in the face of congressional will.

10

Dellinger, Walter. “Presidential Authority to Decline to Execute Unconstitutional Statutes.” Memorandum for the Honorable Abner J. Mikva, Counsel to the President. http://www.usdoj.gov/olc/nonexcut.htm. November 2, 1994. Accessed November 12, 2001.

When I began my research, my main interest was on the presidential signing statement. I wanted to find out what they were, how long they had been in existence, and why there were used. This research has lead me into an exploration of the roots of presidential power, in addition to adding to the scholarly effort another chunk of explaining presidential power and institutional differences. The theory of the Unitary Executive is clearly a theory about institutionalism. I have shown that beginning with the Nixon administration and extending on through the Clinton administration, it was the staff within the executive branch who had been trained during periods of bitter institutional differences who came up with the novel uses of the signing statement and with constitutional explanation for presidential power. I would hope that both my work and the work of others continue to flesh out the key principles of the Unitary Executive. It has been unfortunate that the theory was the product of the Federalist Society, not to borrow a line for Jerry Seinfeld, that “there is anything wrong with that.” Because the Federalist Society comes with political baggage, there has been a great deal of resistance among scholars, particularly those writing in the law journals, to embrace and develop the theory. I think that the resistance that Professor Kagan shows to admitting that what the Clinton administration was doing was “Unitarian” speaks to this. And since many political scientists fail to read law journals, the theory has been put on the

shelf to gain dust. It is time to take it down, blow off the dust, and test whether there is anything to it. This research offers an initial effort. I have offered an exploration of the signing statement, but I hope that mine is not the last statement on it. There needs to be more work to better examine the use of the signing statements in all the administrations that have ever used them, because this work was not an effort at the individual level. Certainly there needs to be more systematic testing of my categories to make sure that I have placed the signing statement in the proper categories. Precision is key to analysis. There is certainly a great deal of work that lies ahead. In the future, I want to understand what happens to those messages sent by the Justice Department to the Congress announcing the non-defense or nonenforcement of sections of legislation that president has signed into law. Do members of Congress recognize this is being done? Are these messages logged? I want to also examine the reasons why the president will issue two separate signing statements over the same bill, one public and one private. In the public address, the president largely speaks to the positives of the bill, how it supports his priorities, and so forth. In the private statement, the president will carefully outline his objections/interpretations, and what he intends to do about them.

I certainly want to continue to log how the signing statements are used in subsequent administrations, to see how it is developed, whether presidents continue to rely upon them (I don’t forsee any reason why they would not), and what nuances they place upon them. In the end, it is my strong desire that one day, political scientists speak about the signing statement in the same way we speak about the executive order, the presidential directive, the pocket and line-item vetoes, and the presidential proclamation.

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