Wednesday, January 30, 2008

The Theory of a Preclusive Commander-in-Chief Power is Alive and Well

Marty Lederman

As Laura notes below, in his most recent signing statement the President has reserved the authority to disregard several "provisions" of the National Defense Authorization Act for Fiscal Year 2008. The President does not enumerate exactly which "provisions" those might be, except to single out sections 841, 846, 1079, and 1222 as those that "purport to impose requirements that could inhibit the President's ability to carry out his constitutional obligations to take care that the laws be faithfully executed, to protect national security, to supervise the executive branch, and to execute his authority as Commander in Chief." According to Bush, "the executive branch shall construe such provisions in a manner consistent with the constitutional authority of the President."

Section 841 establishes the "Commission on Wartime Contracting," which is given the duty to assess "the extent of the reliance of the Federal Government on contractors to perform functions (including security functions) in Iraq and Afghanistan and the impact of this reliance on the achievement of the objectives of the United States"; the contractors' performance; the extent of waste, fraud, and abuse under such contracts; and the appropriateness of the organizational structure, policies, practices, and resources of the Department of Defense and the Department of State for handling such contracting out.

That sounds pretty unconstitutional, doesn't it?

(Perhaps what the President objects to -- although he does not say -- is that the statute authorizes the Commission to "secure directly from the Department of Defense and any other department or agency of the Federal Government any information or assistance that the Commission considers necessary to enable the Commission to carry out [its duties].")

Section 846 clarifies some whistleblowing protections for employees of such contractors, and Inspector General investigations of reprisals against such employees.

Section 1079
provides that if the Chair or ranking minority member of an on Armed Services Committee makes a written request for any existing intelligence
assessment, report, estimate, or legal opinion relating to matters within the jurisdiction of such Committee, the recipient of that request, such as the head of any element of the intelligence community, has 45 days to provide such information, "unless the President determines that such document or information shall not be provided because the President is asserting a privilege pursuant to the Constitution of the United States." (What's wrong with that?)

Finally, and perhaps most importantly, section 1222 provides that "no funds appropriated pursuant to an authorization of appropriations in this Act may be obligated or expended . . . to establish any military installation or base for the purpose of providing for the permanent stationing of United States Armed Forces in Iraq" or "to exercise United States control of the oil resources of Iraq."

What do these objections mean, as a practical matter? The Administration will not say, reports the indefatigable Charlie Savage:
Phillip Cooper, a political science professor at Portland State University, noted that Bush's statement does not clearly spell out the basis for any of his challenges. Cooper, who has been a pioneer in studying signing statements, said the vague language itself is a problem. "It is very hard for Congress or the American people to figure out what is supposed to happen and what the implications of this are," Cooper said. The White House did not respond to a Globe request to explain the objections in greater detail.
As my coauthor David Barron notes, however, the signing statement makes one thing clear: "What this shows is that they're continuing to assert the same extremely aggressive conception of the president's unilateral power to determine how and when U.S. force will be used abroad, and that's a dramatic departure from the American constitutional tradition." David and I have written much more about this subject, and that tradition, here.


Upon which inherent presidential power could Section 1222 infringe? Section 1222 does nothing but clarify the limits of an appropriation of funds from the Treasury. If Bush claims that this provision intrudes on Art. II powers, doesn't that necessarily mean that Bush claims that Art. II grants him some inherent power to draw funds from the Treasury in manner not authorized by a law (or, in fact, prohibited by a law)? Doesn't this clearly conflict with Art.I Section 9?

dm: See pages 739-740 of our article.

Thanks. So your opinion is that Bush claims that Congress's appropriation incorporates an unconstitutional condition rather than that the President possesses an inherent power to draw funds for foreign policy/national defense purposes?

Since the provision deals with military bases and military seizure of resources, it seems like Congress's condition is constitutional given Congress's regulatory powers under Art. Section 8 and historical practice. The Yoo citation in your article seems to suggest that even the Unitary Executive advocates are sympathetic to Congress's position.

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