The President signed the 2011 appropriations bill yesterday, and he attached a signing statement to it. There were two bones of contention. The first was the measure banning funds to transfer prisoners from Guantanamo. The President had already signed bills with this restriction, and his signing statement here mirrored the ones for those, expressing opposition to the “challenge to critical executive branch authority to determine when and where to prosecute Guantanamo detainees” and to the “authority of the executive branch to make important and consequential foreign policy and national security determinations regarding whether and under what circumstances such transfers should occur in the context of an ongoing armed conflict.” But despite these objections, Obama writes that he will sign the bill and work to repeal or mitigate the restrictions in the future. In other words, it’s a lot of huff and puff.

But the other half of the signing statement is an outright expression of the intention to ignore one part of the bill:

Section 2262 of the Act would prohibit the use of funds for several positions that involve providing advice directly to the President. The President has well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority. The President also has the prerogative to obtain advice that will assist him in carrying out his constitutional responsibilities, and do so not only from executive branch officials and employees outside the White House, but also from advisers within it.

Legislative efforts that significantly impede the President’s ability to exercise his supervisory and coordinating authorities or to obtain the views of the appropriate senior advisers violate the separation of powers by undermining the President’s ability to exercise his constitutional responsibilities and take care that the laws be faithfully executed. Therefore, the executive branch will construe section 2262 not to abrogate these Presidential prerogatives.

The amusing part of this is that the bill defunded the offices of four Presidential advisors, or “czars,” that are already vacant or defunct. Advisers for health care, climate change, urban affairs and the auto industry were defunded in the bill. The health care and climate change positions were folded into the Domestic Policy
headed by Melody Barnes. The auto czar, Steven Rattner, left in July of 2009, and the urban affairs czar, Adolfo Carrion, did the same in May 2010.

But this is obviously not a fight over these specific positions, but the concept of Congress dictating which advisers the President can have on his executive staff. There is a substantive issue with the advisers in terms of Congressional oversight. They cannot easily be subpoenaed to testify – witness the ordeal getting Karl Rove to testify to the House Judiciary Committee under John Conyers.

There are a couple ways for Congress to resolve this problem: devise new rules for oversight of executive branch staff, or simply limit the portfolios of those offices. The latter, which was done here, seems to me to be a Constitutional problem. And I don’t really dispute what the Administration did here. But there’s a looming oversight issue with moving jobs that are typically carried out by cabinet secretaries under tighter control at the White House. I don’t know that this has been a huge problem thus far in the Obama Administration – although the fight over health care documents could be an example – but even if it hasn’t, it’s something to consider in future White Houses. In general, it’s a bad idea to put these activities totally beyond the reach of Congressional oversight.

And of course, there’s a way for a President to express disapproval with a portion of a bill beyond attaching a signing statement saying they don’t have to follow that component – they can veto the bill.