Tuesday, June 19, 2007
The GAO Report and the Media--The Day After
As I reported yesterday on "Zone of Twilight," the Government Accountability Office released a Report looking at how the Executive Branch agencies responded to the President's signing statements. The Report, titled "Presidential Signing Statements Accompanying the Fiscal Year 2006 Appropriations Acts" looked at Bush signing statements to 11 of the 12 appropriations bills the President signed last year, and found, after identifying an appropriate sample, that executive branch agencies complied with the President's commands in "30% of the laws" studied. Despite a report that sought to look at the impact of the signing statement, the authors claimed that they could not defend the claim that the signing statement mattered. Charlie Savage reasoned that this statement was added because the authors didn't bother to interview the particular agents. I believe that it had more to do with staying out of a potential firefight between a closely divided Congress. Come out and blast the Republican President and then in 2008 the Democrats lose control of the Congress? It was not pleasant for the GAO when in 2002 they took the Vice-President to Court and lost. They want to go through that again?
But enough about the Report itself. I was interested in what sort of reaction in the press would follow the Report. My guess would be that, given the nature of journalism, reporters would seize upon the finding that President Bush has persuaded Executive Branch agencies to ignore "30% of the laws" he has signed.
For the most part, in those media publications that actually covered it, I was not disappointed. For instance, this story from CNN, which is actually pulled from the AP, is typical of most of the reports found on a Google Search of the subject. It set up the conflict--between the Democrats in Congress and the Administration--provides a brief description of what a signing statement is, and then gives us a backdrop on how such an arcane topic became a hot potato in American politics. It provides no analysis of the actual Report, it only quotes the political players--and from them, it gleans their statements from press releases, and not an actual interview. What is the typical viewer or reader supposed to think from this report? Do they understand the nature of a signing statement? Do they even understand how the executive branch agencies are involved in use of the device?
For a better read of the issue, the "Washington Post" at least digs into the Report to give the reader a sense of the issue. It breaks down the study and also focuses on the one finding of merit--Bush's signing statement of the Border bill where he ordered the US Customs and Border Protection agency to treat a mandate as advisory, which is precisely what it did. But rather than discuss the merits and/or implications of the Report, it falls back on the predictable frame--conflict. It quotes the same press release from the White House and then jumps over to the Democrats, who "see" the "actions of an imperial presidency with little respect for the law or the legislative branch." When all else fails, throw in the imperial presidency no matter whether it applies or not. The press release from Conyers and Byrd are then quoted, where we hear about "power grabs" and the President "thumbing his nose at the law..." One extra voice was added--Bruce Fein. He is used because he 1) is a Conservative, 2) is a Republican, 3) worked in the Reagan Justice Department, where the plan to strategically use the signing statement was hatched, and 4) is staunchly opposed to the use of the signing statement. No other outside voices are used, such as me or Phillip Cooper--political scientists who have studied the use of the signing statement. And here I thought that creating a blog where I could talk a lot about the signing statement would gain me notice. What a farce.
A number of the media reports (largely because they all use the same AP source) also mentioned a part of the Report that really gets me down deep. In the opening salvo of the Report, the GAO first stated that "there is no established definition of 'signing statement.'" I am at a loss as to why they made that claim because it is wrong. I have used pretty much the same definition for much of the 10 years that I have been studying the device. A signing statement is an attachment--always written and sometimes accompanied by a formal signing ceremony--to a bill the president has signed into law. There are two categories that the signing statement may be broken down into--rhetorical and constitutional. Rhetorical signing statements provide a similar function of a press release whereby the President congratulates supporters and admonishes opponents. The constitutional signing statements allow the President to challenge the constitutionality of a provision or provisions of law and/or provide interpretative guidance to vague or undefined provisions of law. Where do they get off making a sweeping claim that there is no established definition? In fact, I won't be surprised if the defenders of the administration seize upon this when making the case against the Report and the opposition? "How can we talk about whether the president is engaging in unconstitutional behavior when we cannot even agree on what the thing is in the first place?"
The second thing--and picked up by some outlets--follows the "lack of definition" claim:
There is even some disagreement as to the first historical use of a signing statement. Many scholars cite President Andrew Jackson's statement accompanying an appropriations act involving internal improvements as the first signing statement. Other scholars point to a statement made by President James Monroe a month after signing a law regulating the appointment of military officers (pg.2)
In their footnotes, they don't tell us who these "many scholars" are--they only cite a passage from Lou Fisher's 1991 book Constitutional Conflicts between the Congress and the President. The "other scholars" defending Monroe is me. If you know anything about the issue involving Jackson--which did spark a controversy--Jackson defends the practice by pointing to "prior administrations" who have issued signing statements to make objections. Christopher May and I have traced that to Monroe. This is settled territory. I have been trying to dispel this in everything I write on the signing statement, and yet all my work is waved away by the GAO, who provide zero evidence to defend the statement that there is some controversy. And the whiff of controversy was enough to attract the attention of reporters. Here is the work of an AP article picked up by the "International Herald Tribune":
The GAO report, which did not assess the merits of the president's arguments, said signing statements go back at least to President Andrew Jackson, seventh of 43 U.S. presidents, who served 1829-1837.
Why did he go with Jackson and not Monroe? Because the GAO claimed that "many scholars" are settled on that. It is enough to make you want to blow your brains out.
What is truly interesting is to see how the discussion of the Report played out during today's press briefing with White House Press Secretary Tony Snow. Or so I thought. There was not one question about the Report. Not one. In fact, no one in the briefing room bother to ask Mr. Snow if the Justice Department has lied to Congress when hearings were held on the Presidential Signing Statement. For instance, you might remember that in January of this year, the House Judiciary Committee held a hearing on the use of the signing statement. At that hearing, the Justice Department was represented by John Elwood, an assistant attorney general in the Office of Legal Counsel. On page 75, you will find an exchange between Congressman Jerry Nadler (D.NY) and Mr. Elwood regarding the reporting requirements whenever the President issues a signing statement that orders non-enforcement of a constitutionally dubious provision of law. Since 2002, the attorney general is required to report to Congress non-enforcement orders. Here is the exchange:
Nadler: The United States Code, Section 28 U.S.C 530D says the Attorney General shall submit to the Congress
a report of any instance in which the Attorney General or any officer of the Department of Justice establishes or implements
a formal or informal policy to refrain from enforcing, applying or administering any provision of any Federal statute, rule,’’ et cetera,
et cetera, ‘‘on the grounds that such provision is unconstitutional.’’
Mr. Elwood, has the Attorney General been issuing such statements with regard to every Presidential signing statement, saying
we have used this and have, in fact, not enforced this law or this provision because it is unconstitutional? Have we been getting
those reports?
Elwood: First of all, the Department of Justice recently reported to the Senate Judiciary Committee that it had complied fully with the terms of 530D. It hasn’t issued anything with respect to signing statements because, as I said earlier, a signing statement is not a policy of nonenforcement.
Last June, when the Senate Judiciary Committee held its hearing on the signing statement, the Justice Department witness testified the same when asked about 530D (of the US Code). And as I have noted, I have sent two separate FOIA requests to the DoJ asking for any communications to the Congress they have made regarding the use of a signing statement to order non-enforcement, and I have not gotten my answer to date. Nada.
Could it have been that there was more pressing news that squeezed out the Report for another day? You be the judge. Here is the question asked of Tony Snow by that WingNut talk radio host Les Kinsolving, and I kid you not. Read for yourself if you don't believe me:
Q The AP reports from London that British police, aided by U.S. authorities, have smashed a global Internet pedophile ring with 700 suspects worldwide. And as the President's chief media advisor, do you know of any expressed and specific opposition to NAMBLA by any of this nation's activist homosexual groups?
And as my hero Kurt Vonnegut often said:
And so it goes.
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But enough about the Report itself. I was interested in what sort of reaction in the press would follow the Report. My guess would be that, given the nature of journalism, reporters would seize upon the finding that President Bush has persuaded Executive Branch agencies to ignore "30% of the laws" he has signed.
For the most part, in those media publications that actually covered it, I was not disappointed. For instance, this story from CNN, which is actually pulled from the AP, is typical of most of the reports found on a Google Search of the subject. It set up the conflict--between the Democrats in Congress and the Administration--provides a brief description of what a signing statement is, and then gives us a backdrop on how such an arcane topic became a hot potato in American politics. It provides no analysis of the actual Report, it only quotes the political players--and from them, it gleans their statements from press releases, and not an actual interview. What is the typical viewer or reader supposed to think from this report? Do they understand the nature of a signing statement? Do they even understand how the executive branch agencies are involved in use of the device?
For a better read of the issue, the "Washington Post" at least digs into the Report to give the reader a sense of the issue. It breaks down the study and also focuses on the one finding of merit--Bush's signing statement of the Border bill where he ordered the US Customs and Border Protection agency to treat a mandate as advisory, which is precisely what it did. But rather than discuss the merits and/or implications of the Report, it falls back on the predictable frame--conflict. It quotes the same press release from the White House and then jumps over to the Democrats, who "see" the "actions of an imperial presidency with little respect for the law or the legislative branch." When all else fails, throw in the imperial presidency no matter whether it applies or not. The press release from Conyers and Byrd are then quoted, where we hear about "power grabs" and the President "thumbing his nose at the law..." One extra voice was added--Bruce Fein. He is used because he 1) is a Conservative, 2) is a Republican, 3) worked in the Reagan Justice Department, where the plan to strategically use the signing statement was hatched, and 4) is staunchly opposed to the use of the signing statement. No other outside voices are used, such as me or Phillip Cooper--political scientists who have studied the use of the signing statement. And here I thought that creating a blog where I could talk a lot about the signing statement would gain me notice. What a farce.
A number of the media reports (largely because they all use the same AP source) also mentioned a part of the Report that really gets me down deep. In the opening salvo of the Report, the GAO first stated that "there is no established definition of 'signing statement.'" I am at a loss as to why they made that claim because it is wrong. I have used pretty much the same definition for much of the 10 years that I have been studying the device. A signing statement is an attachment--always written and sometimes accompanied by a formal signing ceremony--to a bill the president has signed into law. There are two categories that the signing statement may be broken down into--rhetorical and constitutional. Rhetorical signing statements provide a similar function of a press release whereby the President congratulates supporters and admonishes opponents. The constitutional signing statements allow the President to challenge the constitutionality of a provision or provisions of law and/or provide interpretative guidance to vague or undefined provisions of law. Where do they get off making a sweeping claim that there is no established definition? In fact, I won't be surprised if the defenders of the administration seize upon this when making the case against the Report and the opposition? "How can we talk about whether the president is engaging in unconstitutional behavior when we cannot even agree on what the thing is in the first place?"
The second thing--and picked up by some outlets--follows the "lack of definition" claim:
There is even some disagreement as to the first historical use of a signing statement. Many scholars cite President Andrew Jackson's statement accompanying an appropriations act involving internal improvements as the first signing statement. Other scholars point to a statement made by President James Monroe a month after signing a law regulating the appointment of military officers (pg.2)
In their footnotes, they don't tell us who these "many scholars" are--they only cite a passage from Lou Fisher's 1991 book Constitutional Conflicts between the Congress and the President. The "other scholars" defending Monroe is me. If you know anything about the issue involving Jackson--which did spark a controversy--Jackson defends the practice by pointing to "prior administrations" who have issued signing statements to make objections. Christopher May and I have traced that to Monroe. This is settled territory. I have been trying to dispel this in everything I write on the signing statement, and yet all my work is waved away by the GAO, who provide zero evidence to defend the statement that there is some controversy. And the whiff of controversy was enough to attract the attention of reporters. Here is the work of an AP article picked up by the "International Herald Tribune":
The GAO report, which did not assess the merits of the president's arguments, said signing statements go back at least to President Andrew Jackson, seventh of 43 U.S. presidents, who served 1829-1837.
Why did he go with Jackson and not Monroe? Because the GAO claimed that "many scholars" are settled on that. It is enough to make you want to blow your brains out.
What is truly interesting is to see how the discussion of the Report played out during today's press briefing with White House Press Secretary Tony Snow. Or so I thought. There was not one question about the Report. Not one. In fact, no one in the briefing room bother to ask Mr. Snow if the Justice Department has lied to Congress when hearings were held on the Presidential Signing Statement. For instance, you might remember that in January of this year, the House Judiciary Committee held a hearing on the use of the signing statement. At that hearing, the Justice Department was represented by John Elwood, an assistant attorney general in the Office of Legal Counsel. On page 75, you will find an exchange between Congressman Jerry Nadler (D.NY) and Mr. Elwood regarding the reporting requirements whenever the President issues a signing statement that orders non-enforcement of a constitutionally dubious provision of law. Since 2002, the attorney general is required to report to Congress non-enforcement orders. Here is the exchange:
Nadler: The United States Code, Section 28 U.S.C 530D says the Attorney General shall submit to the Congress
a report of any instance in which the Attorney General or any officer of the Department of Justice establishes or implements
a formal or informal policy to refrain from enforcing, applying or administering any provision of any Federal statute, rule,’’ et cetera,
et cetera, ‘‘on the grounds that such provision is unconstitutional.’’
Mr. Elwood, has the Attorney General been issuing such statements with regard to every Presidential signing statement, saying
we have used this and have, in fact, not enforced this law or this provision because it is unconstitutional? Have we been getting
those reports?
Elwood: First of all, the Department of Justice recently reported to the Senate Judiciary Committee that it had complied fully with the terms of 530D. It hasn’t issued anything with respect to signing statements because, as I said earlier, a signing statement is not a policy of nonenforcement.
Last June, when the Senate Judiciary Committee held its hearing on the signing statement, the Justice Department witness testified the same when asked about 530D (of the US Code). And as I have noted, I have sent two separate FOIA requests to the DoJ asking for any communications to the Congress they have made regarding the use of a signing statement to order non-enforcement, and I have not gotten my answer to date. Nada.
Could it have been that there was more pressing news that squeezed out the Report for another day? You be the judge. Here is the question asked of Tony Snow by that WingNut talk radio host Les Kinsolving, and I kid you not. Read for yourself if you don't believe me:
Q The AP reports from London that British police, aided by U.S. authorities, have smashed a global Internet pedophile ring with 700 suspects worldwide. And as the President's chief media advisor, do you know of any expressed and specific opposition to NAMBLA by any of this nation's activist homosexual groups?
And as my hero Kurt Vonnegut often said:
And so it goes.
