-Caveat Lector-
an excerpt from:
The Semi-Sovereign Presidency
Charles Tiefer
Westview Press©1994
ISBN 0-8133-1930-7
--[2]--
1990: VOIDING NUMEROUS PROVISIONS
THROUGH THE ITEM VETO POWER
Defeating the Iran-contra reforms was only the 1989 warm-up exercise for the
White House counsel. President Bush's Princeton Address in May 1991 included
the following boast: "[O]n many occasions during my presidency, I have stated
that statutory provisions that violate the Constitution have no binding legal
force." What President Bush alluded to was nothing less than his having
created a form of "line-item" veto in the face of judicial rulings utterly
opposing that assertion of power.
Understanding the semi-sovereign nature of the Bush White House's claim of
power requires a review of some interesting Anglo-American history. Chief
executives have a long record of seeking personal rule by setting aside
specific provisions of law. The Meese-backed CICA controversy in 1985 through
1988 revived study of that history. As a court noted, "During the reign of
absolute British monarchs, the notion that the Executive, at the time the
King, could decide for himself, without a decision of the courts, which laws
should be obeyed was put to the test. . . . " That test of British
monarchical power occurred in the late 1600s: "King James II attempted to
claim such authority, but the English people would no longer tolerate such a
claim, and their judicial system rejected it in the historic Seven Bishops
Case of 1688."[46] The Framers embodied this rejection of sovereign
prerogative in the "Faithful Execution" clause of the Constitution, modeled
on the English Bill of Rights of 1689.[47]
A court explained that "[o]nce signed by the President ... the bill becomes
part of the law of the land and the President must 'take care that [it] be
faithfully executed."' For the President "[t]o construe this duty to
faithfully execute the laws as implying the power to forbid their execution
perverts the clear language of the 'take care' clause: 'To "execute" a
statute ... emphatically does not mean to kill it.' "[48] The Constitutional
Convention further rejected any such power for the president when Elbridge
Gerry persuasively argued "that the power of suspending might do all the
mischief dreaded from the negative of useful laws (i.e., the President's
veto), without answering the salutary purpose of checking unjust or unwise
ones."[49]
The Constitution denied the president the power of "line-item veto" or the
power to revise bills, as an appellate court explained during the CICA
controversy:
Art. I, § 7 is explicit that the President must either sign or veto a bill
presented to him.... Art. I, § 7 does not empower the President to revise a
bill, either before or after signing. It does not empower the President to
employ a so-called "line-item veto" and excise or sever provisions of a bill
with which he disagrees. The only constitutionally prescribed means for the
President to effectuate his objections to a bill is to veto it and to state
those objections upon returning the bill to Congress. The "line item veto"
does not exist in the federal Constitution, and the executive branch cannot
bring a de facto "line item veto" into existence by promulgating orders to
suspend parts of statutes which the President has signed into law.[50]
President Bush's program of signing statements directly contradicted these
judicial exegeses of the Constitution, particularly when he boasted in the
Princeton Address of the "many occasions" of his declaring that provisions of
the laws had "no binding legal force." In 1990 came President Bush's
demonstrations of his claimed power to pick out long lists of items on
individual bills and either declare them unconstitutional or construe them
into meaninglessness on assorted constitutional grounds. President Bush's
treatment of nine individual items in the 1990 foreign aid authorization was
previously mentioned. In an even bigger example he challenged no fewer than
eleven provisions of the 1990 defense authorization bill, which amounted
almost to a complete overhaul of the parts of the bill he disliked.
During the Reagan and Bush administrations, the vastly enlarged defense
budget provoked extensive controversy in Congress. President Reagan and
Congress had fought over, and resolved, numerous conditions that Congress had
placed on expenditures, as it invoked the "power of the purse" in defense
matters.[51] Such controversies were as old as the "ship money" dispute
during the period of personal rule of Charles I in 1628 to 1640 and as fresh
as the congressional cutoffs for spending on the Indochina War in 1974, on
Angola in 1978, and on the contras in the 1980s. In these defense bill
controversies, President Reagan used his veto threat for influence and
President Bush continued to use this classic tool of divided government.
Additionally, President Reagan used his ability, during consideration of the
defense bill, to work out an array of compromises. These compromises altered
congressional proposals of conditions from initial forms objectionable to the
president into more acceptable forms. Although Iran-contra showed that, on
occasion, the Reagan White House would break the law and the Constitution to
defy appropriation bill restrictions such as the Boland Amendment, this was
the exception rather than the rule. President Reagan had enough of a public
mandate, enough support in Congress from often sympathetic Armed Services
Committees in both the Senate and the House, and enough military programs for
which he wanted and needed Congress's help to engage with Congress in a
practical matter of give and take on the vast majority of issues regarding
military spending bills.
During the consideration of the 1990 defense authorization bill, President
Bush continued to use all the appropriate presidential means to adjust
defense bill conditions including veto threats. However, President Bush
refused to rely on engaging with Congress or making appeals to the public and
instead resorted to a new method to defeat such conditions. Because of the
public's anger that American defense spending shielded Japan while Japan
refused to share that costly burden or to contribute with adequate speed to
Desert Shield, Congress sought to impose conditions on military spending in
defense of Japan. Exercising his traditional powers of influence and
compromise, the president had lobbied successfully to soften provisions
regarding Japanese burden sharing, making some into "sense of Congress"
provisions and putting a waiver provision in another.
After all the debate, negotiation, voting, and ultimate decision to sign
rather than to veto, however, President Bush did not accept that the outcome
was the will of the democratic process. Instead, his signing statement
claimed the power to dispense with or alter a long list of provisions. Atop
the list came his postenactment changes, on asserted constitutional grounds,
in the provisions already compromised at his request regarding
Japanese and European burden sharing, despite compromises already reached
during the enactment process. These provisions, his signing statement
declared, he would treat as "precatory"—that is, merely expressing a
wish—"rather than mandatory," whatever the actual language of the law.
President Bush's signing statement said:
Several provisions might be construed to impinge on the President's authority
as Commander in Chief and as the head of the executive branch. Thus, section
1455 purports to impose a limit on the number of military personnel stationed
in Japan, and section 406 purports to do the same with respect to military
personnel stationed in Europe.
I am particularly concerned about those provisions that derogate from the
President's authority under the Constitution to conduct U.S. foreign policy,
including negotiations with other countries. One such provision is section
1455, which purports to require the President to begin negotiations with
Japan on an agreement under which Japan would offset U.S. costs associated
with the presence of our military personnel in Japan. [52]
Here was Congress acting on the basis of the public will and its longstanding
constitutional authority, shaping the funding arrangements for an expensive
overseas deployment yet still allowing the president much freedom of action.
On the House floor, the burden-sharing provision (referred to as the Bonior
Amendment for its sponsor, Representative David E. Bonior [D-Mich.]) passed
370-53, with even its opponents saying, "It's a vote on the depth of feeling
that people have that our allies should contribute more."[53] The debate and
vote appeared to have effect: "Two days after the House approved the Bonior
amendment, Japan quadrupled to $4 billion the amount it pledged to support
the multilateral campaign against Iraq."[54] President Bush nevertheless
invoked his asserted power as commander in chief at this most dubious
point-against a signed act of Congress regarding funding-and in the line-item
fashion by nullifying particular provisions of an enacted law.[55]
Similarly, the president invoked supposed supremacy over the laws by
asserting the last word on the matter of violating the Antiballistic Missile
(ABM) treaty. President Bush said:
I note also that section 221 contains criteria for conducting Strategic
Defense Initiative research and development that might be construed as a
constraint on the President's authority to interpret treaties. I sign this
Act with the understanding that the Congress did not intend that obligation
of funds for the ground-based interceptors and sensor identified in the
conference report on H.R. 4739 be dependent on a determination at this time
that these systems are deployable under the ABM Treaty. [56]
This rather detailed assault struck at a provision, section 221(b) (2),
which simply limited the authorization to what the ABM Treaty allowed.[57]
President Reagan, in his fervor for the "Star Wars" (Strategic Defense
Initiative [SDI]) antimissile program, had asserted the power to violate the
ABM Treaty's authoritative interpretation given to the Senate during
ratification. Congress had defeated that assertion of power.[58] Despite the
seeming resolution of the issue, here was President Bush claiming power to
spend on SDI without obeying a provision of law he disliked.[59]
The president also rewrote statutory provisions intended to restrain exports
of technology for weapons of mass destruction including missiles. In November
1990, when the president signed this bill, the nation had been awakening to
Iraq's buildup of missile technology—a buildup manifested two months later in
the Scud firings that would kill civilians in Israel and American troops in
barracks in Saudi Arabia. In the bill, Congress had amended, pursuant to its
plenary power over foreign commerce, the Export Administration Act and the
Arms Export Control Act. The amendments concerned a new multilateral
initiative, the Missile Technology Control Regime (MTCR), to prevent further
spread of missile technology.
Congress strongly encouraged the MTCR and agreements like it with non-MTCR
countries. Section 1702 gave a broad delegation of authority to the secretary
of state for making agreements-agreements that would take effect without
Senate treaty ratification or affirmation by further law.[60] The provision
gave the State Department mere "responsibility" to negotiate, with the carrot
that if the State Department was satisfied with its resulting agreements, it
could give non-MTCR countries the favorable treatment of MTCR adherents.
Yet even this supportive broad delegation of authority, in the context of
Congress's plenary power over foreign commerce, set off an assault by the
White House counsel on the provision's constitutionality. Again, President
Bush explained that he would treat the provision as "precatory"—merely
expressing a wish-regardless of the actual language of the law. He said:
I am particularly concerned about those provisions that derogate from the
President's authority under the Constitution to conduct U.S. foreign policy,
including negotiations with other countries .... Another [such provision] is
section 1702, which could be construed as requiring the Secretary of State to
negotiate with foreign countries regarding restricting the export of certain
goods and technology.[61]
Here Congress was giving a highly supportive grant of advance authority; here
the president was so affronted at a provision that "could be construed as
requiring the Secretary of State to negotiate" that he reached for a form of
assertion of power outside the constitutional process. Previous presidents
had dealt with such provisions through their many ways of engaging with the
public and Congress.
Two final assertions of presidential power, still in this same statement, had
particularly chilling overtones in another context: presidential claims of
unbridled power over classified programs. Congress had passed two seemingly
unobjectionable sets of provisions on this subject. First, section 1461,
entitled "Congressional Oversight of Special Access Programs," and section
1482(a), which also dealt with "special access program[s]," curbed new
programs for which the restricted information ("special access") limited
public accountability and created a breeding ground for abuses.[62] Second, a
classified annex to the defense authorization bill provided money for
classified programs. Section 1409 made that annex the law.[63]
President Bush knew firsthand the need for oversight, as he had been CIA
director in 1976 during Congress's investigations (the Church and Pike
committees) of intelligence abuses from spying on Martin Luther King, Jr., to
assassination plots. Yet President Bush chose to escalate the disputes into a
war against oversight, as later expressed in his Princeton Address. His
signing statement declared:
[C]ertain reporting provisions raise national security concerns. Sections
1461 and 1482 purport to require prior notice to the Congress regarding
initiation of, or classification changes in, special access programs. I shall
construe these provisions consistent with my constitutional authority to
protect sensitive national security information.
In addition, section 1409(a) refers to a classified annex that was prepared
to accompany the conference report on this Act and states that the annex
"shall have the force and effect of law as if enacted into law." The Congress
has thus stated in the statute that the annex has not been enacted into law,
but it nonetheless urges that the annex be treated as if it were law. I will
certainly take into account the Congress' wishes in this regard, but will do
so mindful of the fact that, according to the terms of the statute, the
provisions of the annex are not law.[64]
Since the establishment in the 1970s of the Intelligence Committees, the
annual intelligence authorization bill, and that bill's "Classified Annex,"
the system of such annexes had served to bring law to a part of the
government that might otherwise be lawless. Now, President Bush insisted that
the law be merely "the Congress's wishes" and "not law." Because the Bush
Administration had been picking an increasingly serious dispute with Congress
on this matter, "[i]n a letter, Senate Appropriations Chairman Robert C.
Byrd, D-W.Va., complained that defense and intelligence agencies had 'ignored
or challenged' congressional directions regarding funds appropriated for some
secret programs."[65]
President Bush had not employed either his lobbying or his vetoing powers in
this dispute. Rather, outside of the system of checks and balances, he had
weighed in to free the intelligence community both from any limits on its
proliferating special access (i.e., restricted information) programs and from
the budget limits in the Classified Annex. It was a sad but natural
continuation of his 1989 signing statements to further undercut the
intelligence oversight so plainly necessitated by Iran-contra.
1991 REVISING THE INTENT OF CONGRESS IN THE CIVIL RIGHTS ACT
A Technique Develops for Defusing Civil Rights
President Bush's challenge to the intent of the 1991 Civil Rights Act
received at the time, and will undoubtedly continue to receive, widespread
attention from its great significance for civil rights law. His approach to
the 1991 law reflected a culmination of the twin origins of his
administration's general strategy: political forces and personal style. The
nation elected in 1988, and reinforced in 1990, a Congress with a mandate to
enact civil rights laws. President Bush had not campaigned against civil
rights laws in 1988 or 1990 and so he had not received any mandate against
such laws. Rather, he had made enough gestures toward minorities to have "the
highest sustained poll ratings among blacks of any Republican president in 30
years," achieving in April 1990 an approval rating Of 56 percent among
blacks.[66] When it came to the crucial point in late 1991, he did not have
the desire to kill the civil rights bill by a high-visibility veto override
fight, and he did not appear to have a likelihood of success in one.
George Bush's personal style traditionally involved flexible tactics on civil
rights because of his party's conservative wing. His career as a Texas
Republican, running successfully for the House in 1966 and 1968 and
unsuccessfully for the Senate in 1964 and 1970, had inevitably forced him to
face the civil rights debate of that time. In 1964, he found it expedient to
join those critics of the civil rights bill who denounced it with the
language of "constitutional" objection for cover:
Bush's opposition to the bill put him in the company of segregationists....
[with a] position against the fair employment practices and public
accommodations sections of the bill, which he described as
"unconstitutional."... .... "I favor keeping government close to the people,
States' rights in the Constitutional concept," Bush was quoted as saying in
The Dallas Morning News.[67]
Both political forces and personal style thus pushed him to seek a way not to
veto the 1991 civil rights bill but to have some legal contentions outside
the public arena that would defuse the bill.
For almost three years, the White House had honed a set of extraordinary
tools for bending or breaking newly enacted laws before employing them
against this crucial statute. To understand those tools requires recalling
two streams of Bush Administration signing statements: those employing a
strategy using thinly based constitutional arguments and those dealing
specifically with civil rights. The maneuvers of the signing statement for
the 1991 act will then become clear.
Aside from the crude tool of voiding provisions as flat-out unconstitutional,
the Bush Presidency found another, tactically more flexible tool for using
postenactment assertions about constitutional issues. The crude tool had the
potential for explosive confrontation with Congress and ultimately with the
courts. It is doomed to failure when the underlying constitutional theory
about the particular provision is too weak.
In contrast, a weak constitutional argument that could not accomplish much by
itself can accomplish much more when used in a strategy to "avoid"
constitutional "problems" by revising the meaning of the statute. This
technique plays upon real or fancied ambiguity in the statute. A White House
counsel determined to find such ambiguity can nearly always find it by
distorting the broad weave of statutory wording, case law, and legislative
history, particularly when the counsel has manufactured some legislative
history precisely for use in this fashion. Effectively used not for striking
down provisions but for bending them in a preferred direction, this tactic
allows the president to put his personal views above the enacted law.
The signing statement for the Clean Air Act Amendments of 1990 allowed the
White House counsel to practice a full-length set of maneuvers along this
line, providing a warm-up for the Civil Rights Act of 1991. As background,
Congress has used citizen suit provisions in the federal clean air and clean
water laws as a potent tool. Such provisions empower both the national
environmental groups like the Natural Resources Defense Council and the
Sierra Club and many local groups as well to sue polluters directly and to
embarrass the Justice Department for neglecting such suits. Because the
Reagan and Bush administrations had no taste for such vigorous enforcement,
they have sought to find threshold barriers against such suits. These
looked-for threshold barriers parallel, in the context of suits against
private polluters, the barriers of the "standing" doctrine raised in
environmental suits directly against government agencies.
This Reagan Administration effort culminated in its Supreme Court brief in
1987 in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.[68]
In that case, a local citizen environmental group sued Gwaltney on the basis
of past discharges into Chesapeake Bay before the company installed new
equipment. The Clean Water Act allowed citizen suits against those alleged
"to be in violation" of the act. Gwaltney said that the citizen group could
not assert standing based on a company's formerly being in violation but only
based on the company's currently being in violation.[69] In the Supreme
Court, the Reagan Administration filed a brief also urging this as a standing
barrier of constitutional dimension and embellished it with various notions
of executive power.[70]
The Supreme Court disdained to give the slightest attention to the Reagan
Administration's strained constitutional argument. Rather, the court simply
told Congress how to rephrase such a provision to ensure that citizen groups
could sue based on past violations. It concluded that "Congress could have
phrased its requirement in language that looked to the past ('to have
violated'), but it did not choose this readily available option."[71]
When Congress amended the Clean Air Act in 1990, an act in pari materia on
citizen suit issues with the Clean Water Act, it followed the court's advice
on how to "phrase[] its requirement" to broaden citizen suit opportunities.
The act's "Past Violations" section provided: "Section 304(a) of the Clean
Air Act is amended by inserting immediately before 'to be in violation' in
paragraphs (1) and (3) 'to have violated (if there is evidence that the
alleged violation has been repeated) or' "….{72} By the traditional rules of
checks and balances, that statement should have laid to rest the stand-ing
barrier.
Instead, when President Bush signed the bill, he issued a declaration
taking considerable trouble, in view of the magnitude of the bill's other
changes, to revise this particular section. Presumably this action reflected
White House Counsel Gray's own well-known opposition to strictness in air
pollution laws.[73] President Bush stated:
In addition, there are certain aspects of the bill's enforcement provisions
that raise constitutional questions. I note that in providing for citizen
suits for civil penalties, the Congress has codified the Supreme Court's
interpretation of such provisions in the Gwaltney case. As the Constitution
requires, litigants must show, at a minimum, intermittent, rather than purely
past, violations of the statute in order to bring suit. This requirement
respects the constitutional limitations on the judicial power and avoids an
intrusion into the law-enforcement responsibilities of the executive
branch.[74]
The Bush Administration had a weak constitutional argument, not even accepted
by the moderate justices in contexts much more appealing to them.[75] Yet the
White House counsel used this weak constitutional argument as a basis for
reinterpreting the law as a so-called codification of barriers to suit,
exactly opposite of what Congress intended.
Turning from the general power to its particular application to civil rights,
the Bush Administration made frequent use of this extraordinary tool to deal
with this precise issue. The special value of this power—a power of acting
without accountability—was made to order for civil rights as a subject most
unpleasant for the Bush Administration to tackle in an open public arena.
Even the Bush Administration's fervent supporters recognized the frequent use
of the signing statement mechanism on this issue. Terry Eastland's
enthusiastic review of the Bush Presidency's signing statements noted the
following:
Most significantly, Bush has used signing statements to register
constitutional reservations.... Some are based on constitutional provisions
that do not implicate his powers but which, of course, he is sworn to uphold.
No fewer than six times, for example, has Bush said that a preference based
on race or sex is in apparent conflict with the Fourteenth Amendment's equal
protection clause.[76]
An example is the 1991 minority set-aside of 10 percent of the funds for the
Superconducting Super Collider.[77] No objection appears to have been voiced
to this provision on the floor of the House or Senate. In fact, the year
before, President Bush had signed the parallel 1990 provision without a
murmur. Yet, the 1991 provision elicited this presidential response, which
slipped a vague direction to disobey the law and two comments about supposed
"constitutional concerns" into a bland background.
Section 304 ... of the Act raise[s] constitutional concerns. Section 304
would direct the Secretary of Energy, "to the fullest extent possible," to
ensure that 10 percent of the funds for the Superconducting Super Collider go
to various institutions that are defined by their racial composition. To the
extent that important governmental objectives are not clearly identified as
the basis for such designations, they may raise constitutional concerns. I
therefore direct the Secretary, as part of his obligation to implement
section 304 "to the fullest extent possible," to administer the section in a
constitutional manner.[78]
By the Supreme Court's tests in this context, President Bush's asserted
concern was peculiarly feeble. In its decisions upholding minority
preferences for broadcasting licenses and federal contracting, the Supreme
Court majority had reviewed and upheld precisely the same type of statutory
mechanism as for the Supercollider.[79] This provision had a full
justification." Thus, the president took an unpersuasive constitutional
argument, which could not accomplish anything on its own, and used it for the
tool of directing that the law be disobeyed in accordance with his personal
desires. This and other examples of opposition to civil rights earned the
label for Gray's staff as "the best and the rightest."[81]
The 1991 Bill Reaches Passage
Years of such previous tactics and ideological prejudices came together in
the strategy of the White House counsel regarding the Civil Rights Act of
1991. Because the signing statement for that act relies upon an elaborate
use—a misuse-of legislative history, the prelude to the act requires a brief
legal and political review.,
The Supreme Court had issued a string of decisions overruling its prior
rules, in effect since Chief justice Warren Burger's seminal opinion in
Griggs v. Duke Power Co.[82] in 1971. Its new decisions made it harder for
minorities to win employment discrimination cases. Above all, the 1989 Wards
Cove decision increased the requirements for minorities to prove that
employment practices that had weeded them out had "discriminatory impact.[83]
Wards Cove changed the preceding regime in three key respects: burden of
proof, "business necessity," and "cumulation."[84] Congress took up a bill to
restore the law to its status before the new Supreme Court decisions, which
President Bush labeled "quotas legislation." The president gave
responsibility for the issue to Gray for the following reason, journalists
explained:
[Bush] turned to longtime counsel C. Boyden Gray to take charge of the
administration's foot-dragging negotiations with Congress in 1990 and 1991 on
a civil rights bill. (Gray was also a master of circumlocution. As one aide
put it, "When a law degree was deployed, it was usually deployed to bollix
something up, to come up with a convoluted reason for something we couldn't
do. It was never a positive thing." But the effect was the same: to deflect
flak from the right-minded president.)[85]
Gray put out, as the explanation for why restoring the Griggs law would
constitute quotas, that employers would institute quotas under the new bill
rather than litigate. Business did not see the matter that way, regarding the
law as less likely to generate new litigation than any of Gray's
alternatives. So eager were all sides to reach an agreement that even Sununu,
a conservative on the issue, reached a seven-point agreement with Senator
Edward Kennedy (D-Mass.) in 1990. But Gray rejected Sununu's settlement as
unacceptable. In October 1990 President Bush vetoed Congress's bill, and the
Senate fell one vote short of overriding the veto.[86]
A year of confrontation ensued. Gray principally distinguished himself by
chastising business leaders for trying to negotiate a compromise. He called
them "naive" to their faces until they recognized that he did not want a bill
and was stalling.[87] However, by October 1991 the fierce battle over the
Clarence Thomas nomination to the Supreme Court had used up the
administration's capital in the Senate. Simultaneously, David Duke had gained
visibility in the November 1991 runoff for Louisiana governor, as a former
high officer of the Ku Klux Klan and an American Nazi. The campaign had
focused media attention on the downside of the race issue, particularly when
Duke aped the president's phraseology about quotas. Senator John C. Danforth
(R-Mo.), who had guided the Thomas nomination, and other Republicans
encouraging a compromise on the bill met privately with President Bush after
Thomas's swearing-in on the White House lawn on October 18. The president got
the warning that Republican senators would not support him in a repeat veto
override battle for the civil rights bill. After the meeting, the president
"'strongly expressed' to White House counsel C. Boyden Gray and others that
he wanted a bill to sign."[88] This action marked the culmination of the
political forces from the 1988 and 1990 elections that had put George Bush in
the White House without a clear mandate for a legislative program.
Gray immediately began an elaborate maneuver to take back, through a signing
statement, what he could no longer hold back by veto. On October 24, a
"compromise was crafted chiefly by Sens. Edward M. Kennedy, D-Mass., and John
C. Danforth, R-Mo., and White House Counsel C. Boyden Gray and Chief of Staff
John H. Sununu."[89] The compromise had two aspects. Explicit language in
section 105 of the law addressed the three Wards Cove aspects of burden of
proof, business necessity, and cumulation. In addition, Senator Danforth
provided an interpretive memorandum on section 105, setting forth a position
joined by both sides-by Senators Edward Kennedy (D-Mass.), Orrin Hatch
(R-Utah), and Robert Dole (R-Kans.).[90]
The White House counsel felt defensive enough to publish an opinion editorial
subsequently with his version of what now started to unfold, entitled "Civil
Rights: We Won, They Capitulated." In this, he noted that: "[i]n its most
critical component, [this Danforth] proposal included exclusive legislative
history that would supply the definition of 'business necessity' . . . 90
percent of the negotiations centered on the legislative history rather than
on the statute itself."[91]
Notwithstanding the understood exclusive nature of the legislative
his-tory, in the week of October 26 both sides—the administration through
Minority Leader Dole and the other side through Senator Kennedy- quickly
added additional statements on the Senate floor. Gray com-mented about the
other side's Senate statement in terms that would apply equally to his own
sides' statement: "Had we been sandbagged? Had the agreement so laboriously
negoiated ever been meant to stick? ... On these fundamental issues-the
president won a clean victory ... [that] will survive the current round of
fictions . . . ." He spoke perhaps more revealingly than he wished in
describing the tactics used as "sandbagg[ingl," not "stick[ing]" to an
"agreement so laboriously negoti-ated," and particularly his term "fictions."
For in the next round, he did exactly what he was claiming had been done by
the civil rights bill propo-nents.
To handle the new problem posed by the two sides' Senate floor statements of
the week of October 26, more negotiations ensued " and at Senator Danforth's
motion on October 29 the Senate amended the bill to define what legislative
history could, and could not, be relied upon for interpreting section 105. In
this new subsection of section 105, the law declared: "No statements other
than the interpretive memorandum appearing at Vol. 137 Congressional Record S
15276 (daily ed. Oct. 25, 1991) shall be considered legislative history in
construing or applying, any provision of this Act that relates to Wards
Cove-Business necessity/ cumulation/ alternative business practice."[92]
Thus, Congress preserved an agreed-upon legislative history, the Danforth
Memorandum, now marked by the language of the law as the exclusive
legislative history. By the White House counsel's own public account, he had
agreed to this as the exclusive legislative history.[93]
The Most Controversial Signing Statement
On this basis, the bill passed both chambers by November 7 and went to the
White House for signing on November 21. An insightful Washington Post article
put the signing statement prepared by Gray in context thusly: "Gray has
frequently written such statements of White House interpretation—often at
odds with congressional intent—as attachments to controversial legislation.
He has been consistently more averse than Bush to affirmative action and
preferences for minorities.[94] What Gray attempted at this point provoked
its own firestorm. He floated not only a signing statement but also a draft
executive order that would have rolled back the government's major mechanism
for sponsoring affirmative action, the minority hiring goals for government
contractors. This step had been too radical even for Edwin Meese, who had
suggested it but backed down when other Reagan Cabinet members warned that it
would rouse a storm of protest.[95] With Sununu about to be driven from
office on travel abuse charges (his letter of resignation came on December
2), the draft executive order had to be disavowed, as reported: "Bush
declared on Nov. 21 that he supports affirmative action, in the wake of an
uproar over a draft [executive order] directing the government to end
affirmative action. The draft was prepared under the direction of Counsel to
the President C. Boyden Gray. "[96]
However, although President Bush pulled the executive order, he extensively
undermined the 1991 act in the final signing statement. As an essayist noted
about the Bush Administration and civil rights, "Bush sought to quell
criticism by reaffirming support for affirmative action. But his [signing]
statement did no such thing.[97] It amounted to nothing less than turning the
law upside down on its most central and controversial points. His statement
begins with a thesis that turns the Civil Rights Act into a codifier, rather
than an overruler, of even the Wards Cove decision, which it was enacted to
reverse. President Bush's statement begins:
Until now, the law of disparate impact has been developed by the Supreme
Court in a series of cases stretching from the Griggs decision in 1971 to the
Watson and Wards Cove decisions in 1988 and 1989. [These] ... have explained
the safeguards against quotas and preferential treatment that have been
included in the jurisprudence of disparate impact. S. 1745 codifies this
theory of discrimination .... (emphasis added)[98]
The presidential declaration thus took the 1991 act as one that "codifies
this theory of discrimination" in the Wards Cove decision and its paralll
predecessor Watson. An observer reading about the years of congressional and
public civil rights debate preceding the 1991 act might well be amazed to
hear that the act "codifies" those decisions. Had Congress fought the
president for years, taking a veto in the process and coming to the point of
overriding another veto, to codify the decisions it had wanted to overrule?
This tactic followed prior uses of this method, as in the statement for the
Clean Air Act of 1990, which Gray also declared to "codify" a Supreme Court
decision (Gwaltney) when Congress most plainly acted to change the result.
The presidential statement continued:
[This bill] includ[es] a compromise provision that overturns Wards Cove by
shifting the burden of persuasion on the "business necessity" defense. This
change in the burden of proof means it is especially important to ensure that
all the legislation's other safeguards against unfair application of
disparate impact law are carefully observed. These highly technical matters
are addressed in detail in the analyses of S. 1745 introduced by Senator Dole
on behalf of himself and several other Senators and of the Administration
(137 Cong. Rec. S 15472-S'5478 [daily ed. Nov. 5, 1991]; 137 Cong. Rec. S
1953 [daily ed. Nov. 5, 1991]). These documents will be treated as
authoritative interpretive guidance by all officials in the executive branch
with respect to the law of disparate impact as well as the other matters
covered in the documents.
As previously described regarding the Obey Amendment, the White House counsel
had developed an elaborate procedure. First, members sympathetic to the
administration position, albeit lacking the votes to win, would preplant
legislative history. Although those members would lose in Congress, their
legislative history would be deemed authoritative in a postenactment
presidential signing statement. This strategy would revise the law beyond
what the executive could obtain within the lawmaking process by traditional
methods-vetoes, veto threats, bargaining, and public debate.
For the 1991 Civil Rights Act, the White House counsel took that basic system
and went much further. His signing statement went blithely against the
provision, section 105(b) of the act, which made the exclusive legislative
history the agreed-upon joint statement by Senator Danforth and others. Far
from being a minor gloss or triviality, this section, according to Gray
himself (in his piece "Civil Rights: We Won, They Capitulated"), was an
absolutely vital provision, reached in "[t]ense meetings" of the principals
themselves on the critical two days when, absent such an agreement, "it
seemed at points that there might be no civil rights bill at all." The
agreement, in Gray's own words, "directed the courts to ignore any
legislative history ... apart from the two sentences originally agreed to."
Now the president cited, relied upon, and incorporated at full length the
entire alternative legislative history set forth for his own side by Senator
Dole. Presumably, those who had reached the agreement with Gray might well
ask, using his own words, "Had we been sandbagged? Had the agreement so
laboriously negotiated ever been meant to stick?"[99]
Moreover, the signing statement announced itself as a vehicle for
governmentwide "authoritative" direction. It prescribes "authoritative
interpretive guidance by all officials in the executive branch with respect
to the law of disparate impact as well as the other matters covered in the
documents." Elsewhere in this analysis, other such examples of govermentwide
authoritative directives will receive discussion. Here, it suffices to note
that the signing statement, which in so many other incarnations might be a
mere public comment, an occasion to go "on record," or some other statement
with weight no more formal than speechifying at presidential ceremonies, now
became "authoritative" as to controversial areas of national law. As the
Washington- Post said of this section of the signing statement:
[T]he statement also directs the federal government to use the interpretation
of the new civil rights act written by the White House and placed in the
legislative record by Sen. Robert J. Dole (R-Kan.) in applying the law. That
interpretation, supported only by conservative senators, is widely viewed as
favoring business over minority and female employees attempting to charge job
discrimination.[100]
The 1991 Civil Rights Act represented the last major legislative enactment of
President Bush's term. Observers totaled up a long list of bills that did not
pass: health care, antirecession job packages, "tax restructuring, education
reform, campaign finance, striker replacement legislation and a crime bill."
Roger H. Davidson commented about 1992, "Once Bush's popularity plummeted,
there was even less incentive for Congress to work with him."[101] When
Congress did pass bills, including middle-class tax relief, the president
vetoed them.
The end of major legislative enactments did not exhaust the tools in the Bush
Administration's strategy, however. There were tools for dealing with other
active matters, such as congressional investigations and foreign affairs. In
particular, there was a tool for dealing with previously enacted legislation
on the environment, health, and safety regulation. It is to that tool that
the analysis turns next.
pps.31-59
-----
Aloha, He'Ping,
Om, Shalom, Salaam.
Em Hotep, Peace Be,
Omnia Bona Bonis,
All My Relations.
Adieu, Adios, Aloha.
Amen.
Roads End
Kris
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