Signed, Sealed, and... that's About It

David Weigel | March 12, 2008

The Government Accountability Office has a new report on presidential signing statements: Researchers looked at 30 signing statements and checked if respective agencies were dragging their feet or disobeying Congress the way Bush told them to. In about 50 percent of the cases, they were. The most obeyant department: Defense.

For example, section 1079 of the 2008 NDAA requires certain members of the intelligence community to respond to Armed Services Committee requests for existing intelligence assessments, reports, estimates, or legal opinions within 45 days, subject to presidential assertion of privilege. In our previous work, we examined a provision with time frames that required DOD to respond to certain questions or inquiries from a congressional committee within 21 days. We determined that DOD had not executed this provision as written because it responded to one of the two inquiries covered by the provision in 38 days.

Section 846 of the 2008 NDAA increased certain whistleblower protections for DOD contractors... Another provision that the President objected to in the 2008 NDAA was section 841, establishing a Commission on Wartime Contracting in Iraq and Afghanistan.

The conclusion:

Given our findings regarding these similar provisions, the Subcommittee may wish to stay abreast of DOD’s implementation of the provisions in the 2008 NDAA to which the President objected in his signing statement.

Yeah, that's probably true.

Comments

|3.12.08 @ 3:15PM|#

Congress has a harder time screwing with DOD because DOD holds a lot of clout with the public and defense projects are great pork. The only thing that prevents the agencies from fucking with Congress is the threat of Congress screwing with their budget. Since DOD has lots of public support and hands out lots of pork, that threat means less to them than most agencies. Thus, DOD tends to follow the orders of the President more than Congress.

|3.12.08 @ 3:17PM|#

Bitchin OT, but Katherine Mangu-Ward was just now briefly on CNBC and did stellar job making the case, in a mini debate, that it's quite fine for a children's hospital to name a wing after Abercrombie Fitch as a quid pro quo for a $10 mill donation, even though Abercrombie Fitch runs ads that feature revealingly clad youth.

I'm gonna email CNBC and tell em that I enjoyed Katherine's analysis, and that they should have her on more.

|3.12.08 @ 3:20PM|#

I doubt a signing statements would pass a SCOTUS review.

|3.12.08 @ 3:23PM|#

I doubt my above sentence would pass an English review. lol

Butthead|3.12.08 @ 3:45PM|#

...the Subcommittee may wish to stay abreast of...

Uh huh huh huh huh huh huh huh huh huh huh huh...

Kunal|3.12.08 @ 3:52PM|#

obeyant -> obedient

|3.12.08 @ 4:15PM|#

obeyant -> obedient

Maybe Weigel was intending the word 'abeyant', which means "inactive" or "set aside."

|3.12.08 @ 4:18PM|#

Does congress even read this?They don't read the bills they vote for.I'm all for oversight and think both the executive and congress need more.

Guy Montag|3.12.08 @ 4:22PM|#

If this were an issue of failing to spend appropriated funds, then yes, the Congress would have a case. They would also have a whole list of fiscal managers to fine and jail.

Does not appear to be anything like that and the Executive branch seems to be perfectly safe using this check against the Congress.

That checks and balances thing was never intended to be just one direction.

|3.12.08 @ 4:28PM|#

The president's check is called a veto. That is all he has. If the Houses pass laws, the president is Constitutionally bound to enforce them, even if he or she doesn't like it. Of course, Bush doesn't care.

LarryA|3.12.08 @ 4:29PM|#

POTUS:Congress=Rock:Hard place

Thus, DOD tends to follow the orders of the President more than Congress.

That and the whole "Commander in Chief" thing.

|3.12.08 @ 4:54PM|#

I doubt a signing statements would pass a SCOTUS review.

I certainly hope not. But I don't claim to understand SCOTUS reasoning. Medical MJ, McCain Feingold, public accomodations et al, indicates that judicial reasoning is either beyond me or complete bullshit.

|3.12.08 @ 5:11PM|#

I still fail to see the brou-ha-ha over signing statements. It's my understanding (and feel free to correct me if I'm wrong), that all it is, is the Executive saying, (crudely put) "this is how I intepret the law, and I will, or will not, act accordingly," or "I feel this law is unconstitutional and I won't enforce/abide by it." If you feel the president is wrong, take it up with the judiciary. (Whether the Executive defies the resulting court order is another, and much more important question).

To answer a previous question, a signing statement is not designed to "pass judicial review," because it is never up for judicial review in the first place. At most, a court might find a signing statement helpful in interpreting what particular legislation means. Like "legislative history" a signing statement has no independent legal operation.

Seitz|3.12.08 @ 5:15PM|#

I doubt a signing statements would pass a SCOTUS review.

A respectable SCOTUS, no. This particular SCOTUS, I'm not so sure. You've got three justices who would give the President a blow job if asked, and one who would love to see the video. All you needs is one more.

They'll revert to textualism when a Democrat is in office, though.

Elemenope|3.12.08 @ 5:54PM|#

You've got three justices who would give the President a blow job if asked, and one who would love to see the video.

I've never seen it stated so...concisely and evocatively.

Kolohe|3.12.08 @ 6:10PM|#

Does "most obeyant" mean that the DOD is more responsive to Congressional inquires than the government average?

If so an anecdote that may provide context.

I used to be at a regional hq for recruiting command. Several times a week we would get from the national hq tasking to respond to a congressional inquiry because little Johnny or Sally (or more precisely Johnny or Sally's parents) wrote there congressman because little Johnny/Sally were not allowed to enlist. (There were other, much rarer but more serious ones , that a recruiter got too friendly with little Sally - but never IIRC with little Johnny)

Anyway, these became pretty straightforward to solve because all you had to do is get the file from the field station to show what objective criteria was used to deny enlistment (either excessive drugs, excessive crime, excessively abysmal Asvab scores or most common a combo of these)

So the "responsiveness" measure would be pretty high, as there was nothing really controversial about these and you could turn them around in about two weeks. I have no idea if all the routine inquiries are lumped in with the tough questions, but if they are obviously it makes the numbers look better.

|3.12.08 @ 6:19PM|#

It's my understanding (and feel free to correct me if I'm wrong), that all it is, is the Executive saying, (crudely put) "this is how I intepret the law, and I will, or will not, act accordingly,"

The President has to interpret the law to apply it. No reason the Court can't also interpret the law, but a somewhat interesting question about why the Court's interpretation should be privileged over the President's.

or "I feel this law is unconstitutional and I won't enforce/abide by it."

That's what the veto is supposed to be for, at least when the law arrives on the President's desk. As for laws already signed by previous bonehead Presidents, why can't the current occupant say "Well, I may not have the authority to remove this abomination from the books, but I do have the Constitutional duty not to act contrary to the Consitution, and that includes not carrying out unconstitutional laws. Consider it suspended on my watch."

In the ensuing pissing match between the Court and the President, why should the Court be able to dictate to the President that he carry out a law that he has concluded is unconstitutional?

|3.12.08 @ 6:32PM|#

"Well, I may not have the authority to remove this abomination from the books, but I do have the Constitutional duty not to act contrary to the Consitution, and that includes not carrying out unconstitutional laws."

Ah, but refusing to obey the laws passed by Congress is, itself, a violation of the Constitution. The President has a duty to see that the laws are faithfully executed.

In the ensuing pissing match between the Court and the President, why should the Court be able to dictate to the President that he carry out a law that he has concluded is unconstitutional? For the same reason the Court can dictate to the President that the manner the Bureau of Prisons is holding people is unconstitutional, or that the hiring policies at some department are unconstitutional - because being the final arbiter of whether laws and the method of their application is consistent with the Constitution is what the appellate judiciary does.

JLE|3.12.08 @ 6:32PM|#

Why I keep reading your words like an addict: the articles are fairly intelligent, but the comments are gold. The first thing I thought was the "obeyant" vs. "abeyant" thing. Der. Duh. Doi. The commentators got it first.

Smart readers = open minds.

|3.12.08 @ 7:03PM|#

RC,

His signing statements are not providing an alternative interpretation of the law, they're usually saying that, despite signing the bill, he refuses to abide by it under certain circumstances. And I don't think he's issued any "signing statements" on bills that were signed by previous presidents, so enough with that red herring.

It's funny how conservative GOP apologists go all postmodern when it comes to acts of Congress when the other party's in charge.

|3.12.08 @ 7:26PM|#

That's unfair, Chris Potter.

If a Republican Congress passed a law requiring the President to strip colleges with affirmative action programs of all federal aid, and a Democratic President issued a signing statement refusing to do so because he thinks such a bill violates the Equal Protection clause, RC would be saying exactly the same thing.

Exactly, because he's a man of principle.

Right, Atty. Dean?

|3.12.08 @ 8:16PM|#

The President has to interpret the law to apply it.

Specious reasoning, I think, R C. The president's job is to act in accordance with the law. A president's 'interpretation' is based on actions(or lack thereof). If he doesn't agree with the law, he should act in accordance with his *ahem* principles and then be prepared to defend himself...in court if need be (God how I wish...).

No reason the Court can't also interpret the law,...

Especially since that's, like...you know, their job.

...but a somewhat interesting question about why the Court's interpretation should be privileged over the President's.

I don't know but I think that point was settled with Marbury v. Madison.

All I can say is that I'm really ready to see Bush go.

Kolohe|3.12.08 @ 8:58PM|#

I'm starting to read the linked GAO pdf.

From above:

Researchers looked at 30 signing statements and checked if respective agencies were dragging their feet or disobeying Congress the way Bush told them to. In about 50 percent of the cases, they were.

From the linked report

In total, GAO examined how 21 agencies executed 29 different provisions of law. GAO determined that in all but 9 cases the agencies had either taken actions to execute the provisions as written, or conditions requiring agency action had not occurred. In the remaining 9 cases, GAO found that the agencies had not executed the provisions as written.

31% (9 out of 29) is "about 50% of the cases"? Better math, please.

Kolohe|3.12.08 @ 9:10PM|#

Reading futher, I see that the 30 number comes from a footnote that one provision was done for two different agencies, so was used twice.

Still the compliance is approx 50% (16 out of 30) not the 'dragging the feet.' In 5 cases the conditions to trigger the provision were not triggered leaving "9 cases we determined that the agencies had not yet executed the provisions or had not executed the provisions as written."

And they go onto say "Although we found that agencies did not execute some provisions as written, we could not conclude that agency noncompliance was the result of the President's signing statements."

Remember the Government lemma of Hanlon's Razor:

Never attribute to malice that which can be adequately explained by bureaucratic ineptitude.

Kolohe|3.12.08 @ 10:17PM|#

Here's my personal summary of the nine cases of non-compliance.

1) Provision: President must submit documentation for budget justification of all DOD contingency operations
Status: Pres did this for FY06 Gitmo and Balkan ops, but not Afghanistan nor Iraq

2) Provision: DOD must respond to a Subcommitee chair in 21 days.
Status: DOD received two of these but took 38 days vice 21 for one of them.

3) Provision: DOE was to post info on new whistleblower protections
Status: DOE has not put up the posters yet. (possibly because these guys are probably dead? I mean compare how much 'pop' that has compared to this.)

4) Provision: Border patrol was directed (micromanaged?) in its budget authorization to relocate checkpoints in Arizona every seven days.
Status: Border patrol said in effect "you REMF's are pretty frackkin' stupid because the checkpoints are stationary - i.e. they cannot be moved. But we'll humor you and just close them down randomly, which is kinda like moving them. Anyway, we're taking your provision as advice not direction, so thppth."

5) Provision: Pension Benefit Guarantee corporation was told "Please get OMB and Appropriation committee permission before y'all spend more than the 300 million dollars we're already giving you for admin expenses."
Status: They got OMB (Dad's) permission, but spent the money before notifying the committee's (Mom) for an increase in their allowance.

6) Provision: Congressional approval was to be obtain before Ag dept gave more money to it's head PAO guy.
Status: They told congress they were going to do this, they did it (before any approval) but did respond adequately to all subsequent RFI's.

7) (This one is verbatim):The Federal Emergency Management Agency (FEMA) was required to submit for appropriations committee approval a proposal and expenditure plan for housing.29 FEMA did not submit such a plan because, according to FEMA, it does not normally produce such plans. (FEMA, without a plan? Shocking!)

8) Provison: FEMA has an educational program for federal state and local official to give them a 'graduate level' education in homeland security and emergency management. The specific requirement was to "take reasonable steps to ensure diversity."
Status: "Fourteen months after this provision was enacted, FEMA had not taken steps to ensure diversity in the student body."

9) Provision: Create a registry of contractors that included whether the contractor was "a small business owned and controlled by socially or economically disadvantaged individuals or women"
Status: same as 8)

So of these,
1) is a part of one of the the biggest issues of our time, but this particular violation is almost a trivial part of it.
2) and 3) are pretty small beer, considering the underlying purpose of the reg is indeed fulfilled.
4) is definite insubordination but I think understandable (and who wants to bet this provision was put in by a *republican* legislator)
5) and 6) piss me off from a spending point of view, and are definitely congress's prerogative, but congress can solve this by taking away the money as well.
7) is FEMA being FEMA and
8) and 9) I basically agree with the administration - but again if congress wants this and are paying for it, then they should get it.

All in all, for all the problems with the Bush Administration this is a pathetically weak indictment.

|3.13.08 @ 4:23PM|#

"""Does not appear to be anything like that and the Executive branch seems to be perfectly safe using this check against the Congress."""

This is not a valid check. The Constitution says a President can sign or veto the legislation. The President is not allowed to pick and choose that which he likes. As a matter of fact its brother, the line item veto, was ruled unconstitutional.

Also at issue is if the President is a citizen above the law. Which is no. The President is expected to obey any bill he signs into law.

|3.13.08 @ 4:29PM|#

"""The President has to interpret the law to apply it."""


He can interpret the law anyway he wants, that doesn't mean his view IS the law. That's reserved for the judical branch.

|3.13.08 @ 4:34PM|#

"""Never attribute to malice that which can be adequately explained by bureaucratic ineptitude."""

Adequate explaintions and not necessarily the truth. If a bureaucrat concealed his malice by creating the illusion of ineptitude, how would you know the difference?

|3.13.08 @ 4:39PM|#

""""In the ensuing pissing match between the Court and the President, why should the Court be able to dictate to the President that he carry out a law that he has concluded is unconstitutional?""""

Then who gets to test the validity of the Presidents claim? Or is his claim automatically true.

I can imagine the republican outrage if Clinton said that perjuy against a sitting President is unconstitutional. And rightly so.