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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Saturday, June 24, 2006

Presidential Signing Statements

And Also: Many bloggers are excited about Sen. Clinton's proposed new privacy protections, and a story about U.S. Navy sailors' information being posted online just underlines the continual importance of the issue these days. ["A half-dozen federal agencies have been affected by computer data losses in recent months."]


Jack Balkin helpfully notes that Joyce A. Green, an attorney in Virginia, has created links to all of the Bush Administration's presidential signing statements. Ms Green also has a very useful FAQ page, which includes links to various articles and such about the topic. For instance, she notes:
Media sources and bloggers have occasionally reported that George W. Bush has issued as many as 750 signing statements. This is technically incorrect. It is true, however, that scholars such as Christopher Kelley and reporters such as Charlie Savage have painstakingly examined the signing statements and found challenges to 500-750 statutory provisions within these 130 statements. For instance, Professor Kelley has found challenges to 50 laws in a single bill signing statement (the statement for the Consolidated Appropriations Act of 2004).

Likewise, a "signing statement" is a particular animal ... every "statement" by the President on some piece of legislation is not the same thing as a signing statement. Also, things like executive orders and such are not the same thing either. This all can lead to some confusion, but also underlines that there are various ways to go about what he is doing here -- trying to make laws passed via Art. I, sec. 7 generally voluntary things. Consider this statement:
Today, I have signed into law H.R. 2115, the "Vision 100 -- Century of Aviation Reauthorization Act." The Act is designed to strengthen America's aviation sector, provide needed authority to the Federal Aviation Administration (FAA), and enhance the safety of the traveling public. ....

The executive branch shall construe as advisory the provisions of section 812(a) of the Act that purport to direct or burden the conduct of negotiations by the executive branch with foreign governments, international organizations, or other entities abroad. Such provisions, if construed as mandatory rather than advisory, would impermissibly interfere with the President's constitutional authority to conduct the Nation's foreign affairs, participate in international negotiations, and supervise the unitary executive branch.

In effect, he is arguing ("unitary executive" is mentioned over a hundred times) part of the bill is unconstitutional. But, the way he is going about this is fraudulent, since he is "construing" something that is pretty plainly worded to mean something else:
Sec. 812. Reciprocal airworthiness certification.

(a) In General.--As part of their bilateral negotiations with foreign nations and their civil aviation counterparts, the Secretary of State and the Administrator of the Federal Aviation Administration shall facilitate the reciprocal airworthiness certification of aviation products.

What part of "shall" does he not understand? As noted by John Dean in one of those linked articles on the FAQ page, the Justice Department usually gives a high presumption of constitutionality to laws passed by Congress. Furthermore, how exactly is this measure so burdensome? It sounds almost like boilerplate, but as mom always says, it is the principle that counts. Consider as well an earlier measure back in 5/01 concerning mad cow, the "Animal Disease Risk Assessment, Prevention, and Control Act of 2001":
Section 3 of the bill requires the Secretary of Agriculture to submit to certain committees and subcommittees of the Congress a preliminary report concerning any immediate needs for additional legislative authority or appropriations and a final report with recommendations for legislation that will improve efforts to assess, prevent, or control transmission of certain diseases. Section 3 will be interpreted in a manner consistent with the constitutional authority of the President to recommend to the consideration of the Congress such measures as the President shall judge necessary and expedient.

Many statements basically refuse to accept the responsibility to keep Congress informed about the executive's actions on various subjects, including carrying out the Patriot Act. Thus, Congress not only has to be looking (not always likely), but be able to find out what is going on. Since the President has a habit of not being totally open about such things, even when directly asked, this is liable to cause problems.

One also wonders about the constitutional infirmity in the legislature making sure its laws are properly being followed as well as being kept informed about matters with clear legislative import. This is not a matter of intimate executive conversations ... the whole Energy Task Force dodge. Of course, the unitary executive is not the only fear addressed. Consider an interesting kicker to the "21st Century Nanotechnology Research and Development Act," which authorizes appropriations for research in nanoscience, nanoengineering, and nanotechnology research and other related activities.
Several provisions of the Act, including sections 2(d)(2), 3(c)(1), 4(d), and 5(d), purport to call for executive branch officials to submit to the Congress proposals for legislation, including funding legislation. The executive branch shall implement these provisions in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to recommend for the consideration of the Congress such measures as the President judges necessary and expedient.

The executive branch shall construe section 2(b)(4)(E) of the Act in a manner consistent with the Government's obligation under the Due Process Clause of the Fifth Amendment to the Constitution to ensure equal protection of the laws.

The website helpfully links up to the legislation, since it is a bit confusing to understand what is being down here. Congress, for instance, often amends past legislation, thus the Congressional Record is rather confusing. Here, Bush is referencing in the second part of the statement this provision:
(E) to the greatest extent possible, be established in geographically diverse locations, encourage the participation of Historically Black Colleges and Universities that are part B institutions as defined in section 322(2) of the Higher Education Act of 1965 (20 U.S.C. 1061(2)) and minority institutions (as defined in section 365(3) of that Act (20 U.S.C. 1067k(3))), and include institutions located in States participating in the Experimental Program to Stimulate Competitive Research (EPSCoR)

In other words, you know who is making a veiled attack on a mild affirmative action move. Of course, some signing statements are purely vanilla, general sentiments on the law itself. The very first listed involves a mostly party line reversal of an ergonomics standard, one that Molly Ivins discusses in Bushwacked. As she notes, it has an interesting backstory:
One of my favorite examples is that chapter on ergonomics ("The Blues in Belzoni"). When Bush came in, he appointed a guy named Eugene Scalia, son of the Supreme Court justice, to be the top lawyer at the Department of Labor. Scalia the Younger has spent his entire career as a very highly paid lobbyist in Washington, working for manufacturers associations, for the specific purpose of defeating ergonomic regulations. That was an effort started at the Labor Department by Elizabeth Dole -- that well-known communist. For 12 years they worked on trying to set up a central set of regulations. Everybody was at the table -- the manufacturers, the labor unions, the docs, all the players -- trying to prevent repetitive stress injuries, which actually cost industries an enormous amount of money, because millions of people get these things from repetitive motions at work. These regs had been worked out, they had been placed in the Federal Register, and then the Bush administration came in with a very clever ploy, and they undid the whole thing.

As she tells it, eventually Scalia was too soft, and eventually stepped down. Well, so has his dad, sometimes, I guess. But, do not worry, the Bush Administration cares about our workers:
The safety and health of our Nation's workforce is a priority for my Administration. Together we will pursue a comprehensive approach to ergonomics that addresses the concerns surrounding the ergonomics rule repealed today. We will work with the Congress, the business community, and our Nation's workers to address this important issue.

You know "as the President shall judge necessary and expedient."