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Sunday, April 17, 2011

What's really wrong with President Obama's "czars" signing statement?

There has been a flurry of blog posts suggesting that President Obama threatened to subvert congressional limits on President power in his signing statement regarding H.R. 1473, the FY 2011 Budget Bill. The controversy arises from President Obama's suggestion that section 2262 of H.R. 1473, which bars the expenditure of funds for four named White House staff positions, might somehow violate Article II and that, therefore, executive branch will construe section 2262 not to abrogate these Presidential prerogatives." David Bernstein, my friend and law school classmate, darkly suggests over at Volokh's Conspiracy that this vague rumination about Article II might somehow strip Congress of its power over the purse. "[T]he principle that Obama seems to be asserting, that the president can allocate money from budgetary funds even when the law says he can’t," states David, a principle that, according to David, "goes beyond the constitutional sins of the Reagan Administration" such as the Iran-Contra violation of the Boland Amendment.

These worries about the substance of the signing statement strike me as over-blown: Although the statement is admittedly spare to the point of being mysterious, President Obama's paragraph was apparently attacking the idea that Congress could strip him of the power to seek advice from executive branch officials, not the idea that all officers' and employees' pay must be appropriated by Congress and ordinarily controlled by the terms of the appropriation. As the signing statement declares, "Section 2262 of the Act would prohibit the use of funds for several positions that involve providing advice directly to the President." The President enjoys the constitutional prerogative to "require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices." It is, therefore, hardly a stretch to argue that Congress would violate Article II if Congress were to bar funds from being expended to respond to the President's demands for "Opinion[s], in writing." Imagine that Congress enacted a rider stating that "the Secretary of Health & Human Services shall expend no monies responding to any Presidential request for his or her opinion, in writing, upon the subject of health reform": Would not such a rider obviously violate Article II? How is it different for Congress to say that no funds shall be expended on the office of the "Director, White House Office of Health Reform," where the only duty of that "Director" is to help the President solicit and interpret precisely the sort of advice to which the President is constitutionally entitled? Of course, Congress can limit the funds available to hire White House staffers; Of course, Congress can limit the number and salary of such staffers. But can Congress really limit the power of staffers to advise the President through a rider barring expenditures on opining?

The substance of President Obama's signing statement is, in short, not exceptionally controversial. But David's complaint suggests an entirely different problem with these sorts of signing statements, quite apart from their legal conclusions: It is too difficult to construe their meaning, because they are so brief and abstract as to be analytically vacuous. Naturally, they inspire alarmism among an edgy public.

Here's the drill on how signing statements raise constitutional issues. The President (a) mentions Article II, (b) singles out a statutory provision, (c) vaguely warns that the latter might somehow encroach on the former without any serious citation of authorities or reasoned argument, and then (d) concludes by declaring that the provision will be construed consistently with the President's Article II powers, whatever that might mean. In this respect, presidential signing statements are a species of that genre of constitutional avoidance familiar from judicial opinions like Gregory v. Ashcroft, Catholic Bishop, and the Benzene Case, in which the Court vaguely gestures at some allegedly "sensitive" or "difficult" constitutional problem that the Court refrains from seriously analyzing but that nevertheless uses as a basis to construe a federal law narrowly.

Like those judicial "savings constructions" from SCOTUS that they strongly resemble, these signing statements from the POTUS threaten to trim back statutes in the name of some shadowy "constitution" that is never seriously explained but merely furtively gestured at with hushed whispers and nudges. Unlike serious executive constitutional interpretation -- say, in OLC memos -- these signing statements rarely contain detailed analysis of relevant authorities. Moreover, since the bill in question obviously is not actually being applied in any concrete context when the President signs it into law, it is impossible to know exactly what sort of constitutional problem the President is anticipating. The result is the very worst sort of advisory opinion -- without factual context, without any serious discussion of relevant authorities, and with enough visibility to induce panic among onlookers.

Is there any solution to this problem of triggering fear of an imperial presidency with cryptically abstract signing statements' constitutional pronouncements? Here's one idea: Why not require that the President accompany such signing statements with a detailed legal opinion from his General Counsel, replete with a precise statement of the possible constitutional issue raised by the challenged section of the statute and analysis in light of points and authorities? Lincoln did something like this in responding to Taney's writ of habeas corpus for Merryman -- a general and spare presidential statement to Congress followed by a 26-page opinion from Edward Bates, his Attorney General. The eloquent and spare Presidential statement can thus serve the P.R. purpose of conveying the President's rough constitutional reservations, while the dense reasoning necessary to convey an actual legal position can be contained in the Counsel's opinion, so that readers will know exactly what claims the POTUS is and is not making.

I do not claim that my suggestion lacks problems of its own. But it has to be better than the cryptic allusions of these signing statements' "constitutional" analysis.

Posted by Rick Hills on April 17, 2011 at 09:38 PM | Permalink


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I am a bit late to this interesting post, but I have submitted a FOIA request to OLC to see whether there was any such reasoned elaboration for the signing statement (perhaps in a bill review memorandum)...

Posted by: Tuan | May 11, 2011 12:36:28 PM

Norman suggested it depended on the "officer" status of the positions; if so, we would also have to add "inferior officers" that Congress "may" vest the appointment of in the POTUS alone.

If the "positions" in question are "inferior officers," it would seem that Congress has the discretion to create and repeal them. The President also has certain Cabinet officers set by law. Congress sets some guidelines on the organization of the EOP. Same with judges. If judges wanted to use their own money to spend for clerks early on, they could. But, public funds didn't go for it. Congress could so require.

Also, Art. II specifically notes the POTUS has to be compensated. That's it. If this had to be specifically cited, why there is an Art. II power to FUND whatever advisers (whatever s/he wants to call them) is unclear. And, the measures don't target particular issues. The President can get the exact same advice if the person was labeled something else or appointed to another position (there being a myriad).

It is not "tantamount" to not getting advice. And, again, Congress has the power of the purse. If it has to fund everything that the President deems necessary, that basically shifts the power to the President.

Posted by: Joe | Apr 18, 2011 4:24:28 PM

Norman Williams' comment answers Joe's question: Conditioning money for the Executive Office of the President on the condition that such money not be used to obtain advice on specific topics seems like a violation of Article II. But defunding offices that are defined solely by reference to the advice that the officers provide seems tantamount to the same sort of effort to dictate the sorts of requests for information that the President can make. (Imagine Congress's telling the President that he can pay advisers just so long as they do not provide any advice on, say, greenhouse gases: If such an instruction would violate Article II, then how can it be less of a violation if Congress instead declares that the President cannot hire officers with the portfolio of answering questions about greenhouse gases? Since the job is defined solely in terms of the advice that the jobholder provides, defunding the office is really just barring the advice).

All of this, of course, is beside the point of my post, which is to note that none of this reasoning -- or any other reasoning -- was actually contained in President Obama's signing statement. Such statements are "constitutional law lite" -- an invitation to nervous speculation on the part of onlookers, pundits, and bloggers like my friend David Bernstein.

Posted by: Rick Hills | Apr 18, 2011 1:26:58 PM

It seems to me that the constitutionality of Congress' action depends upon whether the designated individuals are officers of the United States (thereby confirmed by the Senate) or mere officials within the Executive Office of the President. While the former can be defunded by Congress, I think that there are serious Article II issues with Congress targeting particular offices or officials within EOP. Congress can reduce the lump-sum budget for EOP, at least so long as the amount cut does not impede the President's ability to do his job. But selecting particular officials within EOP for elimination is different in that it directs how the President wishes to run his White House and thereby interferes with the President's prerogatives.

Posted by: Norman Williams | Apr 18, 2011 12:58:52 PM

I'm a bit unclear on how the provision at hand warrants the statement since it denies funds to four named offices. It doesn't block the President from getting advice from people. I don't think Congress needs to fund whatever inferior office the President deems necessary. Congress could defund the whole Defense Department if it cares to do so.

The issue is colored by the fact that both sides are making symbolic statements here since the offices ("czars") were no longer filled when the law was passed. It is largely a symbolic/partisan battle. The comments at Prof. Bernstein's blog underlines this, including his curious statement that it is perhaps less distressing when something like this is done secretly (reference to Reagan doing something with much more concrete effects).

The excitement provided by what seems in this case a trivial matter, used by some as a sign of his hypocrisy, is overblown.

Posted by: Joe | Apr 18, 2011 10:28:36 AM

Rick, you raise a question that is interesting, but it does not show that the concerns are "overblown." By your logic, I could easily make the argument that the President is Commander in Chief, and therefore any law that defunds a military effort would unconstitutionally constrain the President's right to command the military forces, and so the President can spend the funds anyway. That is an argument that presumably no one is willing to make.

What you are showing is that there is an tension between Congress's power of the purse and the President's right to manage the executive branch, in that Congress could use the power of the purse to micromanage and thus supplant the president's powers. But that shows the gravity of the issue, not its insignificance.

Posted by: TJ | Apr 18, 2011 3:21:18 AM

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