Sunday, July 30, 2006

The Transmissions 

In 1978, Congressman Elliot Levitas (D.GA) had come to his wits end with the Carter administration. Prior to the Carter administration, it had been perfectly acceptable practice for Congress to add language to legislation that required executive branch agencies to report on how they envisioned spending federal money before it was spent. The executive branch had become so large that it was difficult for any member of Congress--not to mention the committees--to understand exactly what was going on inside the federal bureaucracy. To give members a sense of control, these common riders, or legislative vetoes, forced the administration to abide by statute and inform Congress and await its permission before proceeding any further with its particular business.

The executive branch, of course, despised these legislative vetoes. They had added language in signing statements proclaiming that the legislative vetoes violated the "Presentments" clause of the Constitution, and were therefore not constitutional. However, if the president moved towards disobeying the legislative veto, the members would hold appropriations hostage until the administration relented. In the end, it simply was not worth the effort for a president to waste energy fighting the Congress on this one thing. That is until the Carter administration came to power.

President Carter was the posterboy for an excessive micromanager. As James Fallows told it after leaving the Carter administration, President Carter kept the sign up book for time on the tennis courts behind the Eisenhower Building. Excessive micromanager. Carter hated the legislative veto, issuing numerous signing statements were he criticized the device and proclaimed them unconstitutional, and therefore indefensible. He did this so often that Congressman Levitas--a proponent of the legislative veto--added language to the 1978 Department of Justice's appropriations bill. The language required the Justice Department to inform Congress whenever the President refused to defend a federal law. If the Justice Department refused, then Congress would have to come up with its own attorney to defend the law. This language was ultimately signed, and became 2 USC Sec. 288(e). The question was, did the attorney general ever abide by the law, and if so, where are these documents?

As I have noted before, 2 USC Sec. 288(e) was enveloped into the appropriations for the DOJ in 2002, which added language to Title 28 of the USC that required the attorney general to report to Congress whenever the president refused to enforce or defend a law. In President Bush's signing statement, he refused to acknowledge the right of the Congress to order his attorney general to do anything when it was his job to supervise the "unitary executive branch."

On two separate occasions, I have asked the DOJ via FOIA requests to provide me with this information, and on two separate occasions I have been shown the hand. I wrote a dissertation and a number of papers where I had to tell my readers these things existed, but I had no idea what they looked like and to whom they were sent. That is until now.

I have been able to find two examples of Janet Reno sending to Speaker Gingrich the administration's refusal to defend a law. The first refusal came as a result of the administration's refusal to defend the restrictions on abortion information that was part of the Telecommunications Act of 1996.

The second refusal once again came from Janet Reno in 1998. This time it was refusing to defend a provision of the "Balanced Budget Act of 1997," which the administration felt violated First Amendment speech protections.

So I answer a question and raise a question. First, I have verified that these transmission exist, or at least did in the Clinton administration (and potentially one of the many reasons that VP Vader felt the administration squandered presidential prerogatives). Second, why are these two transmission on private websites? I have searched and searched public databases, using the language in these transmittals, and have come up snake eyes. Yet using Google, and I find these two.

So my charge to all of you good readers. Can you help me find more of these transmissions? Second, can you help me find on what government database these things exist?






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