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Sunday, April 30, 2006

Ind. Law - My latest Res Gestae article coincides with important Boston Globe feature today

One couldn't ask for better timing.

My April column for Res Gestae, which I completed and submitted for publication March 20th, will finally appear in the issue to be mailed out this coming week (delayed because of the bank tower storm damage).

The title of my column this month is "Executive Orders, Signing Statements, and Veto Messages, Part One." I have just posted it online; you may access it here. Here is how my article begins:

Presidential signing statements and executive orders have been much in the news, as has the revival of the concept of the line-item veto. Can a president, via a signing statement, effectively amend a bill as he signs it into law, by virtue of written his words? Can the president make law via an executive order and, if so, does his power extend outside the boundaries of the executive branch of government? Can a line-item veto authority created by statute ever survive Supreme Court scrutiny?

My thought this month is not to examine the federal doctrine of the “unitary executive.” Rather, in this Part One, I plan to survey where one can access executive orders, signing statements and veto messages at both the federal and state levels. In addition, I will explore the use (and availability) of the signing statement at the state level, particularly in Indiana.

Next month, in Part Two, my focus will be on the use of the executive order by Indiana governors, and the issues raised by these orders.

The article concludes with more about Part Two (which I hope to complete and get in to the Res Gestae offices later today):
Next Month. Some of the issues that will be explored: Does a governor’s executive order continue in effect when his term is over? Can a governor, via an executive order, legally impact entities outside the executive branch of government? Can the general assembly by passing a statute preempt an area – thereby invalidating an executive order on the same subject?
In the April article I point out that Indiana governors' veto messages are readily available going back to at least 1852. Not so for executive orders, which have been available, albeit a few months after the fact, in the Indiana Register in the nearly 30 years it has been published (as I've noted in other posts, publication will cease next month), but Indiana's treatment of executive orders does not begin to approach their careful handling on the federal level. As for gubernatorial signing statements in Indiana, yes, some have been issued, and no, they are nearly impossible to locate even if you know precisely what you are looking for.

The Boston Globe today has a fascinating, and lengthy, article by Charlie Savage, headlined "Bush challenges hundreds of laws: President cites powers of his office." (Although the phrase is nowhere used in the article, the subject is the concept of the unitary executive.) Some quotes:

President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution.

Among the laws Bush said he can ignore are military rules and regulations, affirmative-action provisions, requirements that Congress be told about immigration services problems, ''whistle-blower" protections for nuclear regulatory officials, and safeguards against political interference in federally funded research.

Legal scholars say the scope and aggression of Bush's assertions that he can bypass laws represent a concerted effort to expand his power at the expense of Congress, upsetting the balance between the branches of government. The Constitution is clear in assigning to Congress the power to write the laws and to the president a duty ''to take care that the laws be faithfully executed." Bush, however, has repeatedly declared that he does not need to ''execute" a law he believes is unconstitutional. * * *

Many legal scholars say they believe that Bush's theory about his own powers goes too far and that he is seizing for himself some of the law-making role of Congress and the Constitution-interpreting role of the courts. * * *

Bush administration spokesmen declined to make White House or Justice Department attorneys available to discuss any of Bush's challenges to the laws he has signed.

Instead, they referred a Globe reporter to their response to questions about Bush's position that he could ignore provisions of the Patriot Act. They said at the time that Bush was following a practice that has ''been used for several administrations" and that ''the president will faithfully execute the law in a manner that is consistent with the Constitution."

But the words ''in a manner that is consistent with the Constitution" are the catch, legal scholars say, because Bush is according himself the ultimate interpretation of the Constitution. And he is quietly exercising that authority to a degree that is unprecedented in US history.

Bush is the first president in modern history who has never vetoed a bill, giving Congress no chance to override his judgments. Instead, he has signed every bill that reached his desk, often inviting the legislation's sponsors to signing ceremonies at which he lavishes praise upon their work.

Then, after the media and the lawmakers have left the White House, Bush quietly files ''signing statements" -- official documents in which a president lays out his legal interpretation of a bill for the federal bureaucracy to follow when implementing the new law. The statements are recorded in the federal register.

In his signing statements, Bush has repeatedly asserted that the Constitution gives him the right to ignore numerous sections of the bills -- sometimes including provisions that were the subject of negotiations with Congress in order to get lawmakers to pass the bill. He has appended such statements to more than one of every 10 bills he has signed. * * *

But it was not until the mid-1980s, midway through the tenure of President Reagan, that it became common for the president to issue signing statements. The change came about after then-Attorney General Edwin Meese decided that signing statements could be used to increase the power of the president.

When interpreting an ambiguous law, courts often look at the statute's legislative history, debate and testimony, to see what Congress intended it to mean. Meese realized that recording what the president thought the law meant in a signing statement might increase a president's influence over future court rulings.

Under Meese's direction in 1986, a young Justice Department lawyer named Samuel A. Alito Jr. wrote a strategy memo about signing statements. It came to light in late 2005, after Bush named Alito to the Supreme Court.

In the memo, Alito predicted that Congress would resent the president's attempt to grab some of its power by seizing ''the last word on questions of interpretation." He suggested that Reagan's legal team should ''concentrate on points of true ambiguity, rather than issuing interpretations that may seem to conflict with those of Congress."

Reagan's successors continued this practice. George H.W. Bush challenged 232 statutes over four years in office, and Bill Clinton objected to 140 laws over his eight years, according to Kelley, the Miami University of Ohio professor. [see graphic] * * *

Still, Reagan, George H.W. Bush, and Clinton used the presidential veto instead of the signing statement if they had a serious problem with a bill, giving Congress a chance to override their decisions.

But the current President Bush has abandoned the veto entirely, as well as any semblance of the political caution that Alito counseled back in 1986. In just five years, Bush has challenged more than 750 new laws, by far a record for any president, while becoming the first president since Thomas Jefferson to stay so long in office without issuing a veto.

''What we haven't seen until this administration is the sheer number of objections that are being raised on every bill passed through the White House," said Kelley, who has studied presidential signing statements through history. ''That is what is staggering. The numbers are well out of the norm from any previous administration." * * *

[P]olitical fallout from Congress is likely to be the only check on Bush's claims, legal specialists said.

The courts have little chance of reviewing Bush's assertions, especially in the secret realm of national security matters. * * *

Bruce Fein, a deputy attorney general in the Reagan administration, said the American system of government relies upon the leaders of each branch ''to exercise some self-restraint." But Bush has declared himself the sole judge of his own powers, he said, and then ruled for himself every time.

''This is an attempt by the president to have the final word on his own constitutional powers, which eliminates the checks and balances that keep the country a democracy," Fein said. ''There is no way for an independent judiciary to check his assertions of power, and Congress isn't doing it, either. So this is moving us toward an unlimited executive power."

A side-bar to the Globe story provides summaries of various presidential signing statements; while my Res Gestae article gives links to the actual documents.

In the April article, I also look at the use of gubernatorial signing statements in states other than Indiana. I find: "Interestingly, Governor Jeb Bush of Florida comes closest to duplicating the signing statements of his brother, President Bush."

[More] I just ran across this chapter heading in Phillip J. Cooper's book, By Order of the President:

Ch. 7. Presidental Signing Statements: A Different Kind of Line Item Veto.
Well said.

Posted by Marcia Oddi on April 30, 2006 12:24 PM
Posted to General Law Related | Indiana Law