Homeland Security Act Signing Statement, Part II
Josh points out one controversy regarding the President's signing statement v/v the Department of Homeland Security and privacy issues. Marty Lederman has another regarding the qualifications of the head of FEMA.
The President argues that any conditions on the appointment of FEMA Director violate the Appointments Clause. That, in and of itself, is questionable, and certainly the case law cuts the other way.
So, here are the conditions in the new statute:
(A) a demonstrated ability in and knowledge of emergency management and homeland security; and
(B) not less than 5 years of executive leadership and management experience in the public or private sector.
I know that I can get fixated on legalese on this blog, so excuse this habit. As a lawyer, its nice to believe that the law still matters, and that in the dialogue between Congress and the President, the words chosen are for a reason.
So, the President's signing statement rejecting these onerous conditions strikes me as mind-numbing. He had three options here. One was to sign it without saying anything. Accept the conditions as reasonable and "germane." Second, I can recognize his lawyers saying "well, if we give in here, we'll always have to give in, so reject any conditions." That's the route he took. But, of course, there was a third option. You could also imagine the lawyers saying, "look, this is reasonable, certainly supported by the caselaw, and given Mike Brown, certainly not a crazy proposal. Sign it, but reserve in your signing statement that you will abide by the statute without conceding anything on the appointments clause." That would have been a reasonsable interpretation, certainly one that every President has.
Historically, President's often do things required by Congress that may be, from their perspective, constitutionally suspect, but in order to avoid the constitutional question or battle, the President will do it and reserve his rights while doing so. Take the War Powers Act. Without resolving the issue of whether Congress could constitutionally require the President to notify them in the event of sending our troops to "hostilities" (this, of course, after the VietNam War), every President has done such a notification to Congress without conceding the constitutional point. They will say, as Reagan did, I am notifying you that I am sending troops to Lebanon or wherever, and while I'm doing so consistent with the War Powers Act, I am not consenting to the constitutionality of that Act. I'm just being a good government actor, and avoiding a constitutional crises.
So, even if we could argue -- as Clinton also did -- that the appointments clause can't be conditioned, here was an example when the President could have done what Congress wanted, and still not made the constitutional argument. He pushed the envelope without needing to. And, in the process, turned what ought to have been a very simple response to the mess of Katrina into an Article II (presidential power) grab.
It's not fun to play with the Constitution.
Good catch.
Stirling Newberry http://www.bopnews.com
October 6, 2006 9:49 AM | Reply | Permalink
"a demonstrated ability in and knowledge of emergency management and homeland security; and not less than 5 years of executive leadership and management experience in the public or private sector"
Prez George is just being a good Dad and developing future employment opportunities for his daughters, nieces, nephews, etc. You're doin a heckuva job, Jenna!
October 6, 2006 9:51 AM | Reply | Permalink
Good points, but the proposed controversy that is being avoided--whether it is constitutional to set specifications on an appointment--is not controversial, or should not be.
If Congress can create a position that needs filling, and can specify the nature of the job, and can specify that the appointee must not me a minor or convicted felon, why is there a question whether they can specify other qualifications?
Why does anyone accept the "unitary" oxymoron? An executive executes. What he executes is specified by his employer, the People, through their Board of Directors, Congress. Areas under his discretion are chosen by the employer. The President is exceeding his job description. He is to do as he is told, exercising discretion only where it is left unspecified how to execute the office.
Period.
October 6, 2006 9:53 AM | Reply | Permalink
From Lederman's blog entry:
So, if I understand this correctly, what the President is claiming is that requiring specific requirements for job experience for appointees is unconstitutional because it amounts to a form of congressional prior restraint on executive privilege (even though a history of such restraint has been the standard since the inception of the Republic).
I'm confused as to why the executive would want to fight this. Do they argue this point simply because it represents a certain amount of congressional oversight and they want none? Or is there a specific individual(s) they want to nominate to a position that such limitations would prevent?
October 6, 2006 10:05 AM | Reply | Permalink
Sure the POTUS thinks he can ignore the Congressional guidelines for the qualifications of anyone nominated to be the Administrator of FEMA...but the Congress can also chose not to confirm any nominee that they feel doesn't have the proper qualifications.
But it just another example of the level of contempt that El Presidente has for the Constitution of the US. If he had problems with that part he could have just vetoed the bill. The federal courts, and not the POTUS, are "the deciders" of what is constitutional and what isn't...or at least that is what the Constitution says.
October 6, 2006 10:32 AM | Reply | Permalink
I'm confused as to why the executive would want to fight this.
I am guessing this is the correct answer to your question:
because it represents a certain amount of congressional oversight and they want none
VIVA EL PRESIDENTE!!!
October 6, 2006 10:57 AM | Reply | Permalink
There appears to be no end of fights this administration is willing to take upon themselves in the preservation of unilateral executive privilege. But I wonder, when are they going to run out of dogs?
October 6, 2006 11:03 AM | Reply | Permalink
They have to fight all "real" Congressional oversight at this point...or there will be many subpeonas which will result in El Presidente having to issue a ton of pardons.
October 6, 2006 11:10 AM | Reply | Permalink
Wait - I'm confused - how does congress specifying the qualifications of who may be nominated out of a pool of applicants in any way increase the subpeona power of congress such that Bush might have to 'issue a ton of pardons' in response?
October 6, 2006 11:18 AM | Reply | Permalink
My response was to this...
There appears to be no end of fights this administration is willing to take upon themselves in the preservation of unilateral executive privilege. But I wonder, when are they going to run out of dogs?
And not specifically about the qualifications for the Administrator of FEMA. The Congress trying to place qualifications on any nominee for that position, which in the POTUS's mind, treads on his powers as a "unitary executive." Which means he would somehow be accountable to the Congress for his actions. And if he had to be held accountable to Congress, in a real sense, there would probably be criminal indictments for members of his administration forthcoming...
October 6, 2006 11:29 AM | Reply | Permalink
OK. I thought we were still limiting the discussion to the blog author's topic.
October 6, 2006 11:34 AM | Reply | Permalink
Well in a sense we were still on topic...even if not "specifically. The POTUS's unitary powers would be threatened if he gives in to Congress on the FEMA Administrator's qualifications issue.
October 6, 2006 11:45 AM | Reply | Permalink
I just proposed that actions like this can be the basis for impeachment. I'm not suggesting that this will happen given the current makeup of congress, but there is no reason that hearings on these issues can't take place now. Discussions like this one also contribute to the effort.
The principle idea being that the public needs to be educated about the legal and constitutional issues that have been violated.
Rather than cross-post to TPMcafe here is my diary on dailyKos
I also posted on TPMcafe last week about how the legal principles of a democratic society have been undermined by this administration. This is based upon the writings of legal philosopher Franz Neumann.
--- Policies not Politics
Daily Landscape
October 6, 2006 12:53 PM | Reply | Permalink
I remember that the Republicans used a clever ad (showing the President playing the sax, playing golf, etc.), to force Clinton to instruct his lawyers to stop contending that he was a "soldier or sailor" on "active duty" and thus was immune from the Paula Jones suit. (Lurking behind this, of course, was the fact that Clinton dodged the draft and was now claiming the mantle of military service.) It worked; the lawyers withdrew the argument.
Why not have the Democratic Party do the same thing here? Do an ad showing the destruction of Katrina and say that now the President is using a signing statement to ensure that he can continue to appoint cronies like Michael Brown to run FEMA. Get him to withdraw the signing statement.
October 6, 2006 1:50 PM | Reply | Permalink
Why am I thinking about what happened to a President that violated the Tenure of Office Act of 1867? Admittedly, it was firing rather than hiring...
It's an interesting question, in general, about executive level appointments. Thinking of some Directors of Central Intelligence, someone said that appointing Allen Dulles as DCI was like Western Union, when it still had telegrams, appointing the fastest keyer as CEO. John McCone, in my opinion, was the best DCI, and came in without much intelligence background -- but was a superb manager, quality oriented, and not scared of technology.
Subject matter experts are often subject matter experts because that's what they want to do rather than manage. In this case, what is the subject? If this was head of FEMA, there is a pool of emergency managers. Adding in the crazy quilt of border security, Coast Guard, National Communications System, etc., who would have experience in managing that?
--
Howard
*equal opportunity offense to both extremes*
October 6, 2006 3:17 PM | Reply | Permalink
For this particular FEMA position no one would complain if the Pres had chosen someone with experience in one area of emergency planning, but not all possible areas.
Or, for that matter, the executive has a remedy for prima facie unenforceable laws--don't sign it. If he signs it he follows it, end of story.
October 6, 2006 3:48 PM | Reply | Permalink
This is in tune with Bush. Not only does he now have the power to personally "interpret" the Geneva Convention, but also claims to use his own interpretation of the US Constitution as a basis for his actions. He's challenged more than 800 laws since taking office. All previous Presidents combined have challenged a total of about 600.
October 6, 2006 6:39 PM | Reply | Permalink
Juliette - I agree with your conclusion and legal reasoning; however, from a technical legal perspective I do not see any real distinction between your "second" and "third" options. Either way Bush is maintaining what he considers his right to do as he sees fit based upon the appointments clause. The third option, the Kayyem model, is simply a more elegant, intelligent and succinct statement of the beligerent and tyrannical Bush model of the second option. Don't get me wrong, I am with you and diametrically opposed to just about everything Bush does, including his action here. I raise this simply as matter of pure legal interpretation.
October 8, 2006 12:52 PM | Reply | Permalink