President Obama has issued his first signing statement with regard to the Omnibus Appropriations Act for FY2009. Professor Eric Posner, at the Volokh Conspiracy, observes that Obama’s signing statement contains many of the “same old Reagan/Bush/Clinton/Bush theories” about executive power and prerogatives.
Professor Peter Strauss, on the other hand, responds that Obama’s signing statement was in fact narrower in its claims with regard to certain whistleblower protections contained in Part D, Section 714 of the Act (which I will refer to as the “Grassley Rider” after its principal proponent in the Senate). The Grassley Rider prevents funds from being used for the salary of any federal officer or employee who attempts to prevent “any other officer or employee of the Federal Government from having any direct oral or written communication or contact with any Member, committee, or subcommittee of the Congress” or retaliates against such officer or employee. In short, it protects federal whistleblowers who wish to communicate with Congress about matters relating to their jobs or agencies.
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).
By adding “or otherwise confidential,” Obama, like Bush, leaves himself a catchall category that can be used to justify the withholding of any information that might be difficult or impossible to withhold under a deliberative process theory. It is hard to imagine any information (other than that which is already public) that couldn’t be withheld under this catchall provision.
The only possible difference between Bush and Obama would be if one could say that the “performance of the Executive’s constitutional duties” is somehow broader than the “otherwise confidential” category. However, if anything, the reverse would seem to be true. The term “confidential” could arguably cover any non-public information of any kind. And certainly any information that the administration thought would impair the performance of its constitutional duties could be claimed to be confidential (even if it somehow could not be argued to fall within the deliberative process privilege).
Bottom line, both Bush and Obama claim an executive branch prerogative to withhold any information from Congress when it is (allegedly) in the public interest to do so.
So how do we know that it is really in the public interest? Bush and Obama have the same answer—trust us.