Posted by Ilya Somin:
Michael Stern Responds to Peter Strauss on Obama's First Signing Statement:
http://volokh.com/archives/archive_2009_03_08-2009_03_14.shtml#1237046288
Co-blogger Eric Posner [1]recently posted Peter Strauss' analysis of
Barack Obama's first signing statement, which argues that Obama
claimed less sweeping power to withhold information from Congress than
did President Bush. Michael Stern, an expert on legal issues involving
Congress, has now responded to Strauss [2]here. Whether or not Stern
succeeds in proving that Obama's position is as sweeping as Bush's
was, he certainly does show that Obama's statement leaves a great deal
of room for him to withhold information whenever the administration
claims that the public interest might require it:
With regard to the Grassley Rider, Obama says �I do not interpret
this provision to detract from my authority to direct the heads of
executive departments to supervise, control, and correct employees'
communications with the Congress in cases where such communications
would be unlawful or would reveal information that is properly
privileged or otherwise confidential.�
Strauss claims that �[t]his is so much less of a reservation than
President Bush (and his predecessors) asserted as to give hope that
he is serious about transparency, and about taking the muzzle off
government personnel. They would simply have ended the sentence at
'Congress.'� [note: Strauss�s email, along with Posner�s initial
post, may be found among the VC posts for March 12].
Strauss is simply wrong. Because the Grassley Rider is not a new
provision, but has been included in annual appropriations measures
since FY1997, one can compare Bush�s signing statements on this
exact issue. For example, in a December 10, 2004 signing statement,
Bush stated that he would construe the Grassley Rider �in a manner
consistent with the President�s constitutional authority to
withhold information that could impair foreign relations, national
security, the deliberative processes of the Executive, or the
performance of the Executive�s constitutional duties.�
Like Obama, Bush purported to authorize the withholding only of
certain categories of information. In reality, however, these
categories are extremely broad. Indeed, if Bush had stopped after
�deliberative processes of the Executive,� his statement would have
arguably covered pretty much anything the executive wanted to
withhold. As anyone who has performed congressional oversight will
tell you, the deliberative process privilege can be and has been
(not necessarily properly) used to withhold a great deal of
information that the executive prefers not to share with Congress.
The words �or the performance of the Executive�s constitutional
duties� I translate as meaning �just in case there is something
that we can�t justify withholding under deliberative process or
other privilege, we will still withhold it if we think it
appropriate to do so.�
How is Obama�s statement any different from Bush�s, though?
Although it uses different phrases, it amounts to exactly the same
thing. �I do not interpret this provision to detract from my
authority to direct the heads of executive departments to
supervise, control, and correct employees' communications with the
Congress in cases where such communications would be unlawful or
would reveal information that is properly privileged or otherwise
confidential.� If Obama had stopped at �properly privileged,� his
statement would still cover anything under Bush�s foreign relations
and national security categories (executive privilege) and Bush�s
deliberative process category (deliberative process privilege). As
a practical matter, this is enough to give the executive
flexibility to withhold information in virtually all circumstances.
(Needless to say, the word �properly� is meaningless because it is
the executive that will decide what is �properly� privileged).
My own view is that both Bush and Obama's positions show insufficient
respect for Congress' authority. If Obama's statement is an
improvement over Bush's in this respect, it is at most a very marginal
one. In practice, both statements seem to allow the administration to
withhold information from Congress almost any time it wants to do so.
References
1. http://volokh.com/archives/archive_2009_03_08-2009_03_14.shtml#1236911524
2.
http://www.d1040331.dotsterhost.com/applications/serendipity/index.php?/archives/125-Obamas-First-Signing-Statement-and-the-Grassley-Rider.html
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