Friday, July 10, 2009

Obama off to a slow start on executive power

I can't say I am all that thrilled with the President this week. Don't get me wrong, I am certainly pleased with his push for the climate change bill, his demands that Congress pay for the health care bill, and his focus on diplomacy and climate change at the G8 summit. It has not, however, been a good week for the third issue in my personal issue triumverate, executive power, an area where the President has fallen twice just this week.

(Note to Facebook readers: This is not a Facebook note, but an automatically imported post from my blog).

The first and more jarring story comes from The Hill, which reports that "The House rebuked President Obama for trying to ignore restrictions to international aid payments, voting overwhelmingly for an amendment forcing the administration to abide by its constraints." Apparently Obama attached a signing statement to an international aid bill declaring that while he was indeed signing the bill into law, he would ignore certain provisions in it that require restrictions on World Bank and IMF funding.

Signing statements are basically letters a president signs at the same time that he signs a bill. They can serve one of two purposes: One, to express gratitude or other such sentiments about the bill and the people who worked on it, or two, to express policy views on the bill itself, such as declaring that part of the bill is unconstitutional and that the president won't follow it. This second form of signing statement has two purposes: The first is basically an end-run around the checks and balances of a veto: I don't like this bill, but instead of risking Congress overturning my veto, I just won't follow the law. The second is to get the President's views into the official printed record in the hopes that a) the Courts will take his views of the bill's meaning into account alongside Congressional debate and b) indoctrinate the bureaucrats about how to execute the new law.

Bush used the second form of signing statements more than any other president in order to assert his executive authority, rejecting many Congressional bills and yet refusing to veto them. Thanks to Dick Cheney, he subscribed to the Reagan-era unitary executive theory, which basically says that only the president has authority over executive matters, and only Congress can touch legislative matters. The problem is, he labeled virtually everything as "executive." I consider this to be an unconstitutional legal theory given that it a) completely rejects everything about checks and balances and is b) based on a distorted reading of just two or three passages from the Federalist Papers and one line in the Constitution. (I did a 30-page research paper on signing statements in March '08. There is scant academic work on the issue - a fellow Dartmouth '09's honors thesis work on the subject may help fill a void - but Charlie Savage, now of the New York Times, brought the issue to public attention in 2005 with his Pulitzer Prize winning investigative reports for the Boston Globe.)

McCain took a stronger stand on signing statements during the campaign than did Obama, one of the few issues where I agreed with the former more. (And small wonder McCain feels that way - Bush once used a signign statement to effectively veto the McCain torture amendment.) That campaign issue has now become a governing issue, given Obama's initial refusal to enforce the World Bank and IMF restrictions that Congress had passed and he had signed into law. I don't know enough about economics to know whether or not those restrictions are a good thing, but given that they passed the House 429-2, I know that the approach, if not the position itself, is a direct slap in the face of the United States Constitution and a dangerous approach to executive power.

The second executive power issue of the week is the President's veto threat of the Intelligence Authorization Bill currently winding its way through Congress. According to the New York Times, the veto could come if the bill contains

a provision that would allow information about covert actions to be given to the entire House and Senate Intelligence Committees, rather than the so-called Gang of Eight — the Democratic and Republican leaders of both houses of Congress and the two Intelligence Committees. A White House statement released on Wednesday said the proposed expansion of briefings would undermine “a long tradition spanning decades of comity between the branches regarding intelligence matters.” Democrats have complained that under President George W. Bush, entire programs were hidden from most committee members for years.

I'm no intelligence expert, but I am inclined to disagree with the president here. I don't care much for Speaker Pelosi, but as she said last night on Rachel Maddow, how can we call the current set-up "oversight"?

MADDOW: You can‘t speak out about the content of what you have been briefed on. But isn‘t there a way that you can say, “I‘m a senior member of the house intelligence committee. I believe that we are doing something we ought not to be doing?”

PELOSI: You cannot do that publicly. And that‘s something that I think we have to change in terms of - because your hands are pretty much tied.

MADDOW: You think the rules should be changed in terms what members of the Oversight Committee can‘t fight.

PELOSI: Well, you know, who can you go to? You know, can you go to the chief justice of the Supreme Court? These are issues, mind you, that you can‘t even talk to your staff about. I have a security adviser, but you can‘t talk - you can‘t talk to anybody about it. And that just isn‘t right. That isn‘t right, because it gives all the cards to the administration. And then if you say anything about it, you have violated our national security, and it shouldn‘t be that way.

The real problem here, however, is the mindset, not the details. This "just trust president fill in the blank" approach (Keith Olbermann's words), when combined with the unconstitutional arrogance of the signing statement, indicates a very dangerous understanding of the balance of power on the president's part, former Constitutional Law professor or no. Like deficits, if it was wrong under Bush, it's wrong under Obama, and is certainly a scary direction for our country and its government.


Jordan said...

When talking about intelligence relevant to national security, things get tricky fast. What if there's a leak in the executive administration? What if (and IMO more likely to be) there is a leak in the congressional intelligence committees and their staff? What if said intelligence if in the wrong hands could cost American, or any, lives?

These 'what if' scenarios are what has helped to fuel the arguments of the creators of the current system. However, I am of the opinion the more tightly secrets are held together the more likely and harmful it will be when they leak out. I hate to use this quote, but as Princess Leia said in Star Wars, "The more you tighten your grip, Tarkin, the more star systems will slip through your fingers."

So in short, I recognize there has to be a balance here. I can't say what that balance is without being in such a position as to know what the intelligence is; but I can say that in order for more intelligence to be shared the people in Congress better be prepared to give up more personal liberties, so-to-speak, in order to be privy and to share more sensitive information.

To me this is tantamount to one of the many uncertainty principles in physics. You can't have both wide sharing of information and firm security at the same time.

Nathan Empsall said...

It doesn't have to be wide. Perhaps the bill makes it too wide and goes too far, but Obama seems opposed to any changes at all. I like some of what Pelosi said. If Congressional leaders have legal concerns, there's nothing they can do about it right now but yell at the CIA behind closed doors and lose the argument - so why not allow them to at least approach the Chief Justice? It also raises policy concerns if you only allow six people without intel backgrounds to make the decisions. If good decisions are to be made, conferring must happen. Clearly not all Congress can know what's going on, but given the failure of the Iraq War briefings, the circle could surely be expanded just a little.

Dogwalkmusings said...

Good post!

Jordan said...

On this at least we can agree.