DebateGate
General Category => 3DHS => Topic started by: Lanya on October 06, 2006, 01:57:24 PM
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Bush cites authority to bypass FEMA law
Signing statement is employed again
By Charlie Savage, Globe Staff | October 6, 2006
WASHINGTON -- President Bush this week asserted that he has the executive authority to disobey a new law in which Congress has set minimum qualifications for future heads of the Federal Emergency Management Agency.
Congress passed the law last week as a response to FEMA's poor handling of Hurricane Katrina. The agency's slow response to flood victims exposed the fact that Michael Brown, Bush's choice to lead the agency, had been a politically connected hire with no prior experience in emergency management.
To shield FEMA from cronyism, Congress established new job qualifications for the agency's director in last week's homeland security bill. The law says the president must nominate a candidate who has ``a demonstrated ability in and knowledge of emergency management" and ``not less than five years of executive leadership."
Bush signed the homeland-security bill on Wednesday morning. Then, hours later, he issued a signing statement saying he could ignore the new restrictions. Bush maintains that under his interpretation of the Constitution, the FEMA provision interfered with his power to make personnel decisions.
The law, Bush wrote, ``purports to limit the qualifications of the pool of persons from whom the president may select the appointee in a manner that rules out a large portion of those persons best qualified by experience and knowledge to fill the office."
The homeland-security bill contained measures covering a range of topics, including terrorism, disaster preparedness, and illegal immigration. One provision calls for authorizing the construction of a 700-mile fence along the Mexican border.
But Bush's signing statement challenged at least three-dozen laws specified in the bill. Among those he targeted is a provision that empowers the FEMA director to tell Congress about the nation's emergency management needs without White House permission. This law, Bush said, ``purports . . . to limit supervision of an executive branch official in the provision of advice to the Congress." Despite the law, he said, the FEMA director would be required to get clearance from the White House before telling lawmakers anything.
Bush said nothing of his objections when he signed the bill with a flourish in a ceremony Wednesday in Scottsdale, Ariz. At the time, he proclaimed that the bill was ``an important piece of legislation that will highlight our government's highest responsibility, and that's to protect the American people."
The bill, he added, ``will also help our government better respond to emergencies and natural disasters by strengthening the capabilities of the Federal Emergency Management Agency."
Bush's remarks at the signing ceremony were quickly e-mailed to reporters, and the White House website highlighted the ceremony. By contrast, the White House minimized attention to the signing statement. When asked by the Globe on Wednesday afternoon if there would be a signing statement, the press office declined to comment, saying only that any such document, if it existed, would be issued in the ``usual way."
The press office posted the signing-statement document on its website around 8 p.m. Wednesday, after most reporters had gone home. The signing statement was not included in news reports yesterday on the bill-signing.
Senator Susan Collins, a Republican from Maine and chairwoman of the Senate Homeland Security and Government Affairs Committee, who has been one of the harshest critics of FEMA's performance during Katrina, yesterday rejected Bush's suggestion that he can bypass the new FEMA laws.
Responding to questions from the Globe, Collins said there are numerous precedents for Congress establishing qualifications for executive branch positions, ranging from the solicitor general's post to the director of the Fish and Wildlife Service.
She also said that Congress has long authorized certain officials from a variety of departments ``to go directly to Congress with recommendations," pointing out that the FEMA director statute was modeled after a law that gives similar independence to the chairman of the Joint Chiefs of Staff at the Pentagon.
``I believe it is appropriate to extend this authority to the official tasked with leading the nation's response to disasters," she said.
Georgetown Law School professor Martin Lederman said Congress clearly has the power to set standards for positions such as the FEMA director, so long as the requirements leave a large enough pool of qualified candidates that the White House has ``ample room for choice."
``It's hard to imagine a more modest and reasonable congressional response to the Michael Brown fiasco," said Lederman, who worked in the Justice Department's Office of Legal Counsel from 1994 to 2002.
The White House did not respond to requests for comment about its signing statement.
In the past, the administration has defended the legality of its signing statements. It has also argued that because Congress often lumps many laws into a single package, it is sometimes impractical to veto a large bill on the basis of some parts being flawed .
At a June hearing before the Senate Judiciary Committee, a Bush administration attorney, Michelle Boardman , noted that other US presidents have also used signing statements. She asserted that Bush's statements ``are not an abuse of power."
Bush's use of signing statements has attracted increasing attention over the past year. In December 2005, Bush asserted that he can bypass a statutory ban on torture. In March 2006, the president said he can disobey oversight provisions in the Patriot Act reauthorization bill.
In all, Bush has challenged more than 800 laws enacted since he took office, most of which he said intruded on his constitutional powers as president and commander in chief. By contrast, all previous presidents challenged a combined total of about 600 laws.
At the same time, Bush has virtually abandoned his veto power, giving Congress no chance to override his judgments. Bush has vetoed just one bill since taking office, the fewest of any president since the 19th century.
Earlier this year, the American Bar Association declared that Bush's use of signing statements was ``contrary to the rule of law and our constitutional separation of powers."
Last month, the nonpartisan Congressional Research Service concluded that Bush's signing statements are ``an integral part" of his ``comprehensive strategy to strengthen and expand executive power" at the expense of the legislative branch.
© Copyright 2006 Globe Newspaper Company.
http://www.boston.com/news/nation/washington/articles/2006/10/06/bush_cites_authority_to_bypass_fema_law/?page=full
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Bush apparently uses every opportunity to exert executive power. One can speculate as to the reasons for this. The "signing statements," if ever they serve an important function, are sorely abused in his hands. With the parade of provisos he affixes to new laws, you'd think his intent was to alter our basic structure: Congress passes laws, the executive enacts them. At that point, serving everyone's interests, the enacted laws should be clear and certain, as the foundation for a "rule of law." But Bush thinks more is to be done. Rejecting the veto and other means to establish an acceptable consensus, Bush carves out his own reservations about so many laws, leaving him in a position to be a super-legislator or a judge-of-almost-last-resort.
Some of these signing statements may serve a useful function (but does the method trump further honing in Congress itself?) by making more definite ambiguous terms. Of course, that, properly, is a legislative drafting function. Even further, perhaps, the president is not only law-enacter but also chief law-enforcer. As such he may have a modicum of discretion that simultaneous comments on a law may help clarify, giving guidance to citizens.
Bush's use of the signing statement goes beyond this, however. Rather than work in an atmosphere of comity with Congress, that is, respect and cooperation, Bush uses his parting statement, by most appearances, to get the last word on policy, a matter squarely within the legislature's competence. This muddles things, and clearly moves our government to a style (if not a substance) of the executive as a first among supposed equals. This can be a dangerous development, especially in wartime, as we are seeing.
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Bush's signing statements are the executive equivalent of legislative letters of intent. Nothing more and nothing less. They simply add historical reference if and when an act comes under judicial review.
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As a supposed statement of intent, as you say, then what historical, and more importantly legal effect do they have. Should they have any? Bush is not a super-legislator.
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As a supposed statement of intent, as you say, then what historical, and more importantly legal effect do they have. Should they have any? Bush is not a super-legislator.
Courts have never held signing statements to have any legal weight; indeed, I remember at least one court decision that explicitly stated that signing statements carry no legal weight.
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I assume even Bush abjures futile acts. Then why does he issue these signing statements, Ami?
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Then why does he issue these signing statements, Ami?
As BT stated; to add historical reference.
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That's horseshit, Ami, and you know it. Bush does it to clear the way for the executive's right to substitute his intent for the legislature's in those matters he chooses to address in the signing statements.
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That's horseshit, Ami, and you know it.
I guess we're back to "no one can disagree with Domer" again.
Bush does it to clear the way for the executive's right to substitute his intent for the legislature's in those matters he chooses to address in the signing statements.
And the courts won't enforce it, so it would be futile.
"I assume even Bush abjures futile acts."
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Bush has been President more than Five years , has a signing statement ever caused any trouble yet?
If so what keeps it from the courts?
I would expect a court challenge to a bad signing statement , unless the signing statement has no force of law.
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Bush apparently uses every opportunity to exert executive power. One can speculate as to the reasons for this.
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Also note this from the article: "In the past, the administration has defended the legality of its signing statements. It has also argued that because Congress often lumps many laws into a single package, it is sometimes impractical to veto a large bill on the basis of some parts being flawed ."
See? It's just not practicle. That mean old Congress, lumping laws in together.
Post-9/11 thinking demands practicality and that means all reins of power in one person's hands, just in case something bad happened to the other branches of government.
I think this really means what it says. He thinks it is impracticle, it's a bother, someone's told him it's legal to do this, and he's done it. Let them try and stop him after the fact.
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What Bush is trying to do with the signing statements, regardless of their formal effect on an appellate court, is to inject his own view into a renewed POLITICAL issue. Within the rational limits of a democracy (in which politics is the lifeblood present in every governmental act), once a law is enacted the matter turns from "political" discourse to "legal" discourse, intertwined concepts, perhaps, but intellectually separate. Bush attempts to blur that line, to re-inject politics into what is the political end-product: a law.
Through this use of politics superimposed on the legal system, Bush gambles that his view will become so widely tolerated that challenges to it will not be forthcoming, or, if there are challenges, in subtle (but not formal) ways the change in political thinking will create a climate in which his views have a better chance of surviving. This effort, and it surely is a concerted effort, has as its driving force the notion of executive power, which Bush exploits mercilessly in a time of war, when it's at the nadir-point of being challenged.
Bush is attempting, in this way, to alter the political landscape, but in so doing alters the GOVERNMENTAL landscape. This is a fundamental problem. A brilliant and durable scheme for governing is being sacrificed to one man's ambition to arrogate power in a time of crisis.
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Nonsense Domer.
If anything Bush is prearguing his case in the event of a constitutional conflict. Which means he is in the judicial realm and not the political.
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Check the learned material on this subject, BT, to see who's closer to making sense. And, by the way, taking Ami's report as true, as my legal training tells me it is, Bush has no place in the legal arena, in that way.
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But Whitehouse Council does.
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I would like to see an example of a law whose intent was reversed by a signing statement.
I get the impression that signing statements are not a new thing , havent other Presidents used signing ceremonys as oppurtunitys to get things said?
Have we got an example yet of a presidential signing statement being used in the enforcement (or not) of a law?
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What Bush is trying to do with the signing statements, regardless of their formal effect on an appellate court, is to inject his own view into a renewed POLITICAL issue.
excerpt from Marty Lederman at Balkinization
[.........]
But that's not the most alarming objection.
Remember Katrina?
Remember Michael Brown, the FEMA Administrator who did such a bang-up job dealing with the crisis?
Well, in this bill Congress took a very modest step to try to prevent that sort of incompetence in cases of future disasters: Section 611 of the Act imposes the following qualifications for the Administrator of FEMA:
The Administrator shall be appointed from among individuals who have—
(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.
According to the President, this provision apparently transgresses the Appointments Clause because it "purports to limit" -- purports to limit! -- "the qualifications of the pool of persons from whom the President may select the appointee in a manner that rules out a large portion of those persons best qualified by experience and knowledge to fill the office." Accordingly, "[t]he executive branch shall construe [the qualification] in a manner consistent with the Appointments Clause of the Constitution."
This is simply mind-boggling. Qualifications for presidential appointees are ubiquitous in federal law, and have been since the dawn of the Republic. Justice Brandeis, for instance, spent almost ten pages of the U.S. Reports in Myers v. U.S. enumerating scores of such qualifications from 1789 to 1926 alone -- including many cases in which Congress "has limited the power of nomination . . . by prescribing specific professional attainments, or occupational experience." 272 U.S. at 265-274. Even the majority in Myers -- a very strongly pro-President opinion -- conceded that Congress may impose "reasonable and relevant qualifications and rules of eligibility of appointees." 272 U.S. at 129. Such qualifications are constitutional as long as they "do not so limit selection and so trench upon executive choice as to be in effect legislative designation" of a particular appointee." 272 U.S. at 128.
The test was probably best articulated by Attorney General Akerman in an 1871 opinion: Statutory qualifications for federal officers appointed by the President are ok as long as they "leav[e] scope for the judgment and will of the [President]. . . . . Congress may not dictate qualifications "unattainable by a sufficient number to afford ample room for choice." Civil Service Commission, 13 Op. Att'y Gen. 516, 520-21, 525 (1871).
Obviously, section 613 easily satisfies this test. It merely requires that the Administrator of FEMA have "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." To be sure, this qualification would prevent the appointment of someone whose only "relevant" experience was being friends with Joseph Allbaugh and overseeing horse trial judges and stewards for the Arabian Horse Association until being ""forced out . . . after withstanding numerous lawsuits against his enforcement of rules for judges and stewards."
But it certainly could be construed to leave the President with the authority to appoint just about anyone who has the actual capacity to run FEMA.
I suppose it's possible the President could have taken the view that all statutory qualifications for presidential appointees are unconstitutional. That would have been wrong, and belied by unbroken history. But it would at least have made logical sense.
Instead, the signing statement has the temerity to state that the qualifications in the bill "rule[] out a large portion of those persons best qualified by experience and knowledge to fill the office"!
That's right -- in the views of this President, requiring a demonstrated ability in and knowledge of emergency management and homeland security and at least five years of executive leadership and management experience "rules out a large portion of those persons best qualified by experience and knowledge to fill the office" of FEMA Administrator -- and thus the President apparently will not feel bound to satisfy those qualifications.
Of course, this makes no sense at all . . . unless, in the Administration's view, what a FEMA Administrator really needs to "fill the office" is not experience and knowledge of disaster relief and management skills, but instead "experience [in] and knowledge" of how to be blindly loyal to the Republican Party.
[............]
http://balkin.blogspot.com/2006/10/shameless-presidents-constitutional.html
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What Bush is trying to do with the signing statements, regardless of their formal effect on an appellate court, is to inject his own view into a renewed POLITICAL issue.
excerpt from Marty Lederman at Balkinization
[.........]
But that's not the most alarming objection.
Remember Katrina?
Remember Michael Brown, the FEMA Administrator who did such a bang-up job dealing with the crisis?
Well, in this bill Congress took a very modest step to try to prevent that sort of incompetence in cases of future disasters: Section 611 of the Act imposes the following qualifications for the Administrator of FEMA:
The Administrator shall be appointed from among individuals who have—
Ok, but have you got an example of the President counteremanding this law with such an appointment?
Have you got an example at all of the President enforceing a law either more or less due to a signing statement?
If I were the President and thought that the qualifacations clause of the law was unconstitutionally defineing or reduceing the power of the president , I would as soon as possible appoint someone who had only four and a half years in the feild and see whether Congress or the courts really cared.