With the oath of office and an inaugural address behind him, a newly installed President Barack Obama is going to face an immediate and profound dilemma: how to use his authority to undo the George W. Bush policy regime as quickly as possible without embracing Bush's own obnoxious views of presidential power. I would like to dedicate a few posts to this question.
Bush 43 embraced a double-barreled theory of presidential power that has weakened checks and balances and helped to undermine the "rule of law" culture on which constitutional government depends. One "barrel" is an assertion of unilateral presidential power in military and foreign affairs that is unprecedented in the breadth of its ambition to fend off congressional regulation and judicial oversight. The second is the theory of the so-called "unitary presidency," under which the President is entitled to exercise personally any or all policy discretion vested by Congress in any officer of the executive branch.
With supporters clamoring for the new president to wipe away Bush-era policies with a stroke of a pen, how can the new president wield his own pen without embracing the Bush assault on constitutionalism?
Step One should be an executive order dealing with the infamous Bush signing statements.
As detailed most famously by Charlie Savage, Bush was unprecedented in his frequent use of presidential "signing statements" to interpose constitutional objections to congressional bills that the President was actually signing into law. In 2007, Neil Kinkopf and I compiled a data set showing that Bush, in his first six years in office, raised nearly 1400 constitutional objections to roughly 1000 statutory provisions, over three times the total of his 42 predecessors combined. In each case, he expressly or implicitly asserted authority to shape his enforcement of the law -- or lack of it -- to accommodate his views of his own constitutional power.
(My personal favorite is the Bush objection to a statutory provision that put limits on the number of Defense Department civilian and military personnel who could be assigned to the Pentagon's Legislative Affairs office. According to Bush, Congress "cannot constitutionally restrict the authority of the President to control the activities of members of the armed forces, including whether and how many members of the Armed Forces . . . shall perform legislative affairs or legislative liaison functions." Apparently, Bush really thinks politics is war.)
Todd Gaziano of the Heritage Foundation has written that people ought to regard such signing statements as having essentially the same status as presidential proclamations or executive orders -- in other words, statements with directive force over the executive branch, presumably unless countermanded by a later proclamation or executive order.
This is a horrible idea for two reasons. First, and most fundamentally, the president does not have any generalized authority to rewrite statutes according to his personal views of the Constitution. Second, the sheer volume of such statements under the Bush Administration would make them all but impossible for later Presidents to police effectively on a case-by-case basis.
President Obama, however, can happily restore checks and balances in this domain with a simple five-sentence executive order. Here's my draft:
Section One. Except in the rarest of cases, the executive branch is constitutionally obligated to enforce the laws of the United States as enacted by Congress.
Section Two. The obligation to enforce the laws of the United States as enacted by Congress is not mitigated by a presidential statement, upon signing any such law, that he or she has reservations about the constitutionality of all or a portion of the law being signed.
Section Three. Should any officer of the United States believe that a law he or she is responsible for enforcing cannot be implemented in a constitutional fashion as written, that officer shall so inform the head of, and general counsel to, the relevant agency, who shall determine, in the first instance, whether the law is constitutionally enforceable.
Section Four. If the head of any agency, in consultation with his or her general counsel, believes that a law that the agency is responsible for enforcing cannot be implemented in constitutional fashion as written, the agency head shall so notify the Attorney General, who shall make a final and binding determination as to how to proceed. If the Attorney General concludes that the law cannot be enforced constitutionally, the Attorney General shall so notify the President, who will convey the Attorney General's determination to the committees of the House and Senate with jurisdiction over the relevant agency.
If our forty-fourth president were to sign such an order, it would surely demonstrate presidential vigor. It would also accomplish three things: repudiating any claims for the legal force of signing statements, pledging allegiance to the executive branch's obligation to enforce the law, and promising transparency on those rare occasions when the president's obligations to the Constitution mean that a statute cannot be enforced consistent with our supreme national law.
Presidential unilateralism in the service of checks and balances would be a welcome harbinger of change. More to come.