Executive Orders and Executive Actions

At The Washington Post, Andrew Rudalevige writes:

It is true that President Obama has issued fewer executive orders both in absolute terms, and on an order-per-year basis, than most of his recent or even recent-ish predecessors. It’s also true that executive orders can matter greatly, as with Obama’s expansion of protections for the employees of federal contractors.

And yet to equate executive orders (a formal type of presidential directive) with executive powers, as the White House and its allies seek to do, is to misdirect — to hope that the hand will be quicker than the eye. As Philip Bump has put it, the fuss is about executive actions more broadly. While Obama issued only 20 executive orders in 2013 (the lowest single-year total in more than a century), that same year he issued 41 presidential memoranda to the heads of departments and agencies, along with nine additional presidential “determinations” designed to serve as the basis for bureaucratic behavior.

And there are lots of other avenues for that. We could include regulatory action, signing statements, legal interpretations, and administrative orders technically issued by department heads but at the behest of the White House. (We could also include unpublished memoranda, and classified orders, and military orders, and the Presidential Policy Guidance and Presidential Policy Directive documents produced that year through the National Security Council advising process.)

Disregarding a Law

Karen Tumulty writes at The Washington Post that some are questioning the swap of five Taliban for Army Sergeant Bowe Bergdahl:

Top Republicans on the Senate and House armed services committees went so far as to accuse President Obama of having broken the law, which requires the administration to notify Congress before any transfers from Guantanamo are carried out.

“Trading five senior Taliban leaders from detention in Guantanamo Bay for Bergdahl’s release may have consequences for the rest of our forces and all Americans. Our terrorist adversaries now have a strong incentive to capture Americans. That incentive will put our forces in Afghanistan and around the world at even greater risk,” House Armed Services Committee Chairman Howard P. McKeon (R-Calif.) and the ranking Republican on the Senate Armed Services Committee, James M. Inhofe (Okla.), said in a joint statement.

Lawmakers were not notified of the Guantanamo detainees’ transfer until after it occurred.
The law requires the defense secretary to notify relevant congressional committees at least 30 days before making any transfers of prisoners, to explain the reason and to provide assurances that those released would not be in a position to reengage in activities that could threaten the United States or its interests.

Before the current law was enacted at the end of last year, the conditions were even more stringent. However, the administration and some Democrats had pressed for them to be loosened, in part to give them more flexibility to negotiate for Bergdahl’s release.

A senior administration official, agreeing to speak on the condition of anonymity to explain the timing of the congressional notification, acknowledged that the law was not followed. When he signed the law last year, Obama issued a signing statement contending that the notification requirement was an unconstitutional infringement on his powers as commander in chief and that he therefore could override it.

Here is the relevant passage from the signing statement:

For the past several years, the Congress has enacted unwarranted and burdensome restrictions that have impeded my ability to transfer detainees from Guantanamo. Earlier this year I again called upon the Congress to lift these restrictions and, in this bill, the Congress has taken a positive step in that direction. Section 1035 of this Act gives the Administration additional flexibility to transfer detainees abroad by easing rigid restrictions that have hindered negotiations with foreign countries and interfered with executive branch determinations about how and where to transfer detainees. Section 1035 does not, however, eliminate all of the unwarranted limitations on foreign transfers and, in certain circumstances, would violate constitutional separation of powers principles. The executive branch must have the flexibility, among other things, to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers. Of course, even in the absence of any statutory restrictions, my Administration would transfer a detainee only if the threat the detainee may pose can be sufficiently mitigated and only when consistent with our humane treatment policy. Section 1035 nevertheless represents an improvement over current law and is a welcome step toward closing the facility.

On December 20, 2007, he said: "I will not use signing statements to nullify or undermine congressional instructions as enacted into law."

Detainees and Signing Statements

Previous posts have discussed presidential signing statements, which direct the executive branch how to carry out a new law. Presidents have sometimes used signing statements to claim authority to override or bypass provisions of laws. The New York Times reports:

President Obama set aside his veto threat and late Wednesday signed a defense bill that imposes restrictions on transferring detainees out of military prisons in Afghanistan and Guantánamo Bay, Cuba. But he attached a signing statement claiming that he has the constitutional power to override the limits in the law. 

The move awakened a dormant issue from Mr. Obama’s first term: his broken promise to close the Guantánamo prison. Lawmakers intervened by imposing statutory restrictions on transfers of prisoners to other countries or into the United States, either for continued detention or for prosecution. 

... President George W. Bush ... used signing statements to advance sweeping theories of presidential power and challenged nearly 1,200 provisions over eight years — more than twice as many as all previous presidents combined. 

The American Bar Association has called upon presidents to stop using signing statements, calling the practice “contrary to the rule of law and our constitutional system of separation of powers.” A year ago, the group sent a letter to Mr. Obama restating its objection to the practice and urging him to instead veto bills if he thinks sections are unconstitutional. 

As a presidential candidate, Mr. Obama sharply criticized Mr. Bush’s use of the device as an overreach. Once in office, however, he said that he would use it only to invoke mainstream and widely accepted theories of the constitutional power of the president.

President Obama's Signing Statements

Previous posts have dealt with President Obama's use of signing statements. At the New York Times, Charlie Savage writes:

When President Obama signed a budget bill on Friday, he issued a signing statement claiming a right to bypass dozens of provisions that placed requirements or restrictions on the executive branch, saying he had “well-founded constitutional objections” to the new statutes.

Among them, he singled out two sections barring the use of money to transfer prisoners from the naval base at Guantánamo Bay, Cuba, into the United States and limiting the ability of the government to transfer them to the custody or control of foreign countries. Mr. Obama said he would apply them in a way that avoided infringing on his powers, without any specific explanation of what that meant.
...

Signing statements were once obscure, but they became controversial under President George W. Bush, who used them to advance sweeping theories of his own powers and challenged more provisions, including a torture ban, than all previous presidents combined.

His expanded use of the device brought new attention to it, and the American Bar Association called upon Mr. Bush and all future presidents to stop issuing signing statements and instead to veto bills if they had objections to parts of them.

As a presidential candidate, Mr. Obama said that he thought signing statements could be legitimate if used with “restraint” — for instance, to clarify how an ambiguous law should be interpreted.

But since taking office, Mr. Obama has relaxed his criteria by defining “restraint” as meaning invoking only “well-founded” theories of the powers the Constitution gives to the executive branch alone, meaning Congress may not infringe upon them.

Signing Statements, the Recognition Power, and Israel

An article in The New York Times discusses some issues from the book: presidential signing statements, and the president's authority to recognize foreign governments:

Menachem Zivotofsky was born in Jerusalem. But was he born in Israel?

Congress says yes. In 2002, it directed the State Department to “record the place of birth as Israel” in passports of American children born in Jerusalem if their parents ask.

President George W. Bush signed that bill about three weeks before Menachem was born. But Mr. Bush also said he would not obey it.

(Remember the controversy over Mr. Bush’s flurry of signing statements, in which he expressed reservations and disagreements with acts of Congress even as he signed them into law? This was an example of one.)

The 2002 law, Mr. Bush said, “impermissibly interferes with the president’s constitutional authority to conduct the nation’s foreign affairs and to supervise the unitary executive branch.”

The status of Jerusalem has long divided not only Israelis and Arabs but also Congress and presidents of both parties. Over Congressional objections, the United States maintains its embassy in Tel Aviv. In his 2002 signing statement, Mr. Bush said, “U.S. policy regarding Jerusalem has not changed.”

This fall, not long after Menachem turns 9, the Supreme Court will hear arguments in his case, which seeks to force the executive branch to follow the 2002 law. The case weaves together generations of conflict in the Middle East, the dueling roles of Congress and the president in the conduct of foreign affairs and the combustible topic of presidential signing statements.

...

The justices instead not only agreed to hear the case, M.B.Z. v. Clinton, No. 10-699, but also directed the two sides to address the broad question of whether the law “impermissibly infringes the president’s power to recognize foreign sovereigns.”

That power is rooted in the constitutional text, but not in an especially obvious way. The courts have said the president’s authority to “receive ambassadors and other public ministers” implies the power to recognize foreign governments.

A recent article in the University of Richmond Law Review argued that the original understanding of the clause concerning ambassadors did not support that leap. “The Constitution, by its terms, does not give the president the power to recognize foreign states or governments,” wrote Robert J. Reinstein, a law professor at Temple University

Mr. Lewin, too, said the courts had placed too much weight on the business about receiving ambassadors, which he said was not a presidential power but only a duty.

In its brief to the court, the administration warned about the consequences of a ruling against executive authority over this area.

President Obama and Signing Statements

Our chapter on the presidency discusses signing statements. At The American Presidency Project, John T. Woolley explains:

A “Signing Statement” is a written comment issued by a President at the time of signing legislation. Often signing statements merely comment on the bill signed, saying that it is good legislation or meets some pressing needs. The more controversial statements involve claims by presidents that they believe some part of the legislation is unconstitutional and therefore they intend to ignore it or to implement it only in ways they believe is constitutional. Some critics argue that the proper presidential action is either to veto the legislation (Constitution, Article I, section 7) or to “faithfully execute” the laws (Constitution, Article II, section 3)

As a presidential candidate, then-Senator Obama said:

Signing statements have been used by presidents of both parties, dating back to Andrew Jackson. While it is legitimate for a president to issue a signing statement to clarify his understanding of ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute the law, it is a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability.

I will not use signing statements to nullify or undermine congressional instructions as enacted into law. The problem with this administration is that it has attached signing statements to legislation in an effort to change the meaning of the legislation, to avoid enforcing certain provisions of the legislation that the President does not like, and to raise implausible or dubious constitutional objections to the legislation. The fact that President Bush has issued signing statements to challenge over 1100 laws – more than any president in history – is a clear abuse of this prerogative. No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives; unfortunately, the Bush Administration has gone much further than that.

At another point in the campaign, he was even more emphatic:

President Obama has continued to issue signing statements. In signing the continuing resolution last week, he served notice that he would not abide by the provision abolishing certain White House jobs:

Section 2262 of the Act would prohibit the use of funds for several positions that involve providing advice directly to the President. The President has well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority. The President also has the prerogative to obtain advice that will assist him in carrying out his constitutional responsibilities, and do so not only from executive branch officials and employees outside the White House, but also from advisers within it.

Legislative efforts that significantly impede the President's ability to exercise his supervisory and coordinating authorities or to obtain the views of the appropriate senior advisers violate the separation of powers by undermining the President's ability to exercise his constitutional responsibilities and take care that the laws be faithfully executed. Therefore, the executive branch will construe section 2262 not to abrogate these Presidential prerogatives.

Executive Power

Our chapter on the presidency examines various powers that the chief executive can wield. The New York Times reports:

With much of his legislative agenda stalled in Congress, President Obama and his team are preparing an array of actions using his executive power to advance energy, environmental, fiscal and other domestic policy priorities.

Mr. Obama has not given up hope of progress on Capitol Hill, aides said, and has scheduled a session with Republican leaders on health care later this month. But in the aftermath of a special election in Massachusetts that cost Democrats unilateral control of the Senate, the White House is getting ready to act on its own in the face of partisan gridlock heading into the midterm campaign.

...

Already, Mr. Obama has had to reconcile his campaign-trail criticism of Mr. Bush for excessive use of so-called signing statements to bypass parts of legislation with his own use of such tactics. After a bipartisan furor in Congress last year, Mr. Obama stopped issuing such signing statements, but aides said last month that he still reserves the right to ignore sections of bills he considers unconstitutional if objections have been lodged previously by the executive branch.

During the 2008 campaign, however, then-Senator Obama said:

Signing statements have been used by presidents of both parties, dating back to Andrew Jackson. While it is legitimate for a president to issue a signing statement to clarify his understanding of ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute the law, it is a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability.

I will not use signing statements to nullify or undermine congressional instructions as enacted into law.