President Barack Obama issued his second signing statement yesterday (second containing a constitutionally based objection to a provision of law being signed, that is). This statement included only one constitutional objection and, like the objections in the first, it was a garden variety objection that I cannot imagine anyone disagreeing with. The statement concludes:
Section 8203 of the Act provides that the Secretary of the Interior shall appoint certain members of the Erie Canalway National Heritage Corridor Commission “based on recommendations from each member of the House of Representatives, the district of which encompasses the Corridor.” Because it would be an impermissible restriction on the appointment power to condition the Secretary’s appointments on the recommendations of members of the House, I will construe these provisions to require the Secretary to consider such congressional recommendations, but not to be bound by them in making appointments to the Commission.
In a number of cases beginning with INS v. Chadha, 462 U.S. 919 (1983), and Bowsher v. Synar, 478 U.S. 714 (1986), the Supreme Court has held that Congress may not make the exercise of executive authority conditional upon the action or inaction of a member of Congress (or a committee or any other component of Congress). In other words, Congress may not aggrandize itself by passing a statute that reserves for Congress alone (or a sub-unit of Congress or a member or agent of Congress) the exercise of power. The Court has defined “power” for these purposes to be the authority to affect legal rights and duties outside the legislative sphere (so, for example, Congress and its committees may issue subpoenas to testify at congressional hearings even though such subpoenas alter legal duties because the subpoena operates within the legislative sphere). Because the Erie Canalway National Heritage Corridor Commission presumably does not operate within the legislative sphere, Congress may not exercise power over its membership. As long as the congressional recommendations are, in fact, recommendations that can be considered and rejected, the law does not reserve any actual power or authority (in the relevant constitutional sense) for members of Congress. President Obama’s construction of the statute is a fair one, the statute itself does not appear to make the recommendations binding. Indeed, the statute allows several members of Congress to make recommendations, so it is unlikely that the recommendations could be binding. Given that the statute pretty clearly does not make the recommendations binding, I am puzzled as to why President Obama would have issued the statement.
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Congress’ Contribution
March 26, 2009Surely one of the factors arming fears that, promises or not, President Obama is continuing in the central-power-hungry ways of his predecessor(s) is the rate at which he is creating White House positions that appear to duplicate, or at least compete with, responsibilities Congress has assigned to departments or agencies, but which enjoy a stronger shield of executive privilege and perhaps do not even require Senate approval for their personnel. Paul Light, writing in the New York Times on Monday, March 23, opened an OpEd, “Nominate and Wait,” with this:
Light then went on to tie the development to congressional failures of responsibility in relation to executive appointments – both in lagging in the confirmation process, and in tolerating (viz., through appropriations) presidential and departmental creation of at will political appointees not requiring Senate confirmation.
One hardly knows where to start here. The very first Senate refusal to confirm a presidential nominee to a cabinet position, Andrew Jackson’s nomination of Roger Taney to serve as Secretary of the Treasury, came as punishment for what appeared to be the President’s insistence on controlling the execution of a duty Congress had assigned elsewhere. A statute gave the Secretary of the Treasury “discretion” to remove government funds from the U.S. Bank and put them elsewhere. Jackson’s vehement opposition to the Bank made him eager to have this happen, and his re-election in 1832, with the Bank’s future as a major issue in the campaign, appeared to pave the way. The Secretary of Treasury then serving found no adequate reason to exercise that congressionally conferred discretion, and Jackson replaced him. His confirmed successor as Secretary, William Duane, came to the same conclusion and was also sacked. Jackson named Taney Acting Secretary and, as Robert Bork would about a century and a half later, Taney did what he was told. His nomination was rejected.
In one of the sillier communications of the later Bush years, responding to a House bill that would have denied funding for enforcing the new powers given “regulatory policy officers” by President Bush’s EO 13422, White House spokesmen told Congress with a straight face that it would be acting unconstitutionally if it refused adequate funding for White House offices, as an interference with the President’s inherent executive authority.
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