Wednesday, August 26, 2009
The Office of Legal Counsel recently posted its April 21, 2009, analysis and advice on the question whether congressional seats on the Ronald Reagan Centennial Commission violated the Appointments Clause, the Ineligibility Clause, and separation of powers. The memo itself is unremarkable, but its analysis is reflected in President Obama's signing statementon the Act, specifically disavowing the Act's plain intended role for congressional members of the Commission.
If ever a signing statement were appropriate, this may be it. The statement is plain and transparent. The President reported his objections to Congress. The statement promotes the congressional purposes of the Act, while carefully carving out its obvious constitutional problems. And given the nature of the Act, nobody is likely to object.
But still, the timing of the OLC opinion (after House passage, but before the first reading in the Senate--presumably with time to amend the Act, as recommended by the OLC) raises the core question about Presidential signing statements: Should a President unilaterally rewrite portions of legislation that passed both houses of Congress?
The Commission, established by Pub. L. 111-25 and which includes members of Congress appointed by congressional leaders, shall
(1) plan, develop, and carry out such activities as the Commission considers fitting and proper to honor Ronald Reagan on the occasion of the 100th anniversary of his birth;
(2) provide advice and assistance to Federal, State, and local governmental agencies, as well as civic groups to carry out activities to honor Ronald Reagan on the occasion of the 100th anniversary of his birth;
(3) develop activities that may be carried out by the Federal Government to determine whether the activities are fitting and proper to honor Ronald Reagan on the occasion of the 100th anniversary of his birth; and
(4) submit to the President and Congress reports [on the Commission's activities].
The OLC opined that Commission members are "officers," and that congressional appointment therefore violates the Appointments Clause. And because congressional members would be both members of Congress and officers "under the Authority of the United States," the Act violated the Ineligibility Clause. Finally, congressional members would have important executive functions under the Act--a violation of the anti-aggrandizement principle.
OLC recommended amending the Act to give the Commission authority merely to advise and recommend activities to an executive officer--a plain and simple recommendation before the bill even received its first reading in the Senate. But the OLC's suggestion did not work its way into the final version passed by both houses and signed by the President. Instead, the President, President Reagan's signing statement on a similar commission in 1983, wrote,
I understand, and my Administration has so advised the Congress, that the members of Congress "will be able to participate only in ceremonial or advisory functions of [such a] Commission, and not in matters involving the administration of the act" in light of the separation of powers and the Appointments and Ineligibiliity Clauses of the Constitution.
The statement is transparent, pragmatic, even quite useful in promoting the broader goals of Congress in creating the Reagan Commission. But it also perpetuates the practice that a President can unilaterally rewrite legislation merely by claiming a constitutional objection upon signing.