Tag Archives: military authorization bill

My Cousin Veto and the Military Authorization Bill: A Lesson In Presidential Power

In this earlier blog post  I argued that it was unlikely that Obama would veto the fiscal 2012 military authorization bill that had just passed the Senate by overwhelming numbers, 93-7, despite objections from both progressives and conservatives that the bill, as worded, allowed military authorities to hold Americans indefinitely if they were suspected of engaging in terrorism on U.S. soil. Although Obama’s senior advisers were recommending a presidential veto, I noted that was not the same as Obama himself issuing a veto threat – a distinction that was sometimes lost in the impassioned debate over the bill that has consumed the blogosphere during recent days.

Yesterday, in  an effort to avoid provoking a presidential veto, members of the House and Senate armed forces committees, working in House-Senate conference,  apparently tweaked the fiscal 2013 military authorization bill by approving language clarifying that the bill would not affect the  FBI and other law enforcement’s national security authority. The revised bill also altered language to make it the President, rather than the Secretary of Defense, who can issue a waiver to move suspects from military to civilian custody.  The new language, which was included in a conference designed to iron out differences between the Senate and the House versions of the bill, must now pass muster again with both chambers, but it is likely to go in its current form to the President’s desk for his signature.  Civil libertarians are not mollified by the new language and are insisting that the President veto it. If he does, it will be only the third veto he has issued.

But, in my view, he won’t veto the bill.  If he doesn’t progressives undoubtedly will again criticize him for sacrificing principle on the altar of political expediency. However, this bill has bipartisan support and it includes a variety of other issues that have strong backing of key legislators in both congressional chambers.  Historically, presidents don’t veto military authorization bills in large part because of their omnibus nature; they usually contain something for everybody.   So while much of the attention is focused on the detainee section, the bill also has other key provisions agreed to in bipartisan deliberations headed in the Senate by the chair of the Senate Armed Services Committee Carl Levin and the ranking Republican John McCain.  Those provisions include restrictions on transferring Guantanamo detainees to the mainland for another year, freezing aid to Pakistan pending that nation’s cooperation on military matters, and a host of military-related pork barrel items pertaining to weapons production, base closings and other local matters of concern to influential legislators focused on bringing the bacon back home.  Getting 93 votes also meant that some senators lost out on key issues. McCain, for instance, was unhappy with a provision that would place the head of the National Guard on the Joint Chiefs of Staff.

Given the tepid nature of Obama’s “veto threat” in the administration’s Statement of Policy, it seems inconceivable to me that he will veto this bill. But that doesn’t mean his veto talk was cheap.  Instead, the language used in the SAP was enough to persuade members of Congress to change the bill’s language to provide Obama with the political cover he needs to sign the bill into law.  By political cover, I don’t mean that it was mere window-dressing – the modified language, while perhaps not enough to please everyone, did provide enough substantive clarity to at least meet some of the administration’s objections, even if it did not go as far as Obama’s aides might have liked.

We are sometimes tempted to judge a president’s influence on the legislative process by the number of vetoes he issues; a “strong” president will veto bills that do not conform to his preferences. But a better indicator is how Congress reacts to veto threats.  After all, if the president feels compelled to veto a bill, it is an indication that his threats were not effective. The distinction is a useful reminder of Richard Neustadt’s famous adage that presidential power – his effective influence on outcomes -  is rooted primarily in a president’s formal powers – including the veto.  However, because those powers are shared in our constitutional system, presidents cannot rely on formal authority alone to get what they want.  Indeed, the use of formal powers as the final option – think issuing a veto – often reflects presidential weakness.  But this doesn’t mean formal powers aren’t useful.  As Neustadt argues, “presidential ‘powers’ may remain inconclusive when a president commands, but always remain relevant when he persuades.”   And how does he persuade?  The answer, in Neustadt ’s classic phrase: “The power to persuade is the power to bargain.”  Formal powers such as the presidential veto, then, give the President a vantage point from which to influence the legislative process, even if those powers cannot determine the outcome.  This is precisely what we see happening with the military authorization bill.  Obama used his formal power – or more precisely, the threat of using it – to nudge the bill a bit closer to his preferred outcome. We shall find out, probably by the end of this week, whether it was moved close enough to avoid a veto.

Do Ya Feel Lucky, Punk? Obama, Vetos, and SAP’s

When is a veto threat not a veto threat?  That’s the question one needs to ask in light of the recent media stories and blog posts suggesting that President Obama has threatened to veto a recently passed military authorization bill for the next fiscal year because it includes language that could be construed as limiting the President’s flexibility to hold suspected terrorists in civilian custody.  The bill also contains provisions restricting Obama’s power to relocate enemy combatants now held at Guantanamo Bay, another detail that did not sit with the Obama Administration.  Despite the administration’s apparent veto threat, however, the bill passed the Senate by overwhelming numbers (93-7), and was supported by most of the Senate Democrats as well as Republicans. And yet, as I discussed here, the President apparently is persisting with his veto threat – a tactic that is both surprising, since Obama has only vetoed two bills so far, and risky, since it would appear that there would be enough votes in both the Senate and the House to override a presidential veto.

So what explains the President’s veto threat?  Why has he apparently stiffened his spine? The answer is that, despite my and others’ loose choice of words, Obama has not issued a veto threat.  His advisers have.

Let me explain.

Presidents typically issue a threat to veto pending legislation by issuing a SAP – a Statement of Administrative Policy. (Technically, these are issued by the Office of Management and Budget on the President’s behalf). Presidents issue SAP’s not just to signal their intent to veto; they may also be used to voice support for a bill, or to recommend that it be altered.  Frequently the SAP will say that the President opposes a bill, but it will stop short of threatening a veto. So, for example, today the administration  issued this SAP regarding legislation now being debated on Capitol Hill to extend the payroll tax cut, which is due to expire on Jan. 1.  In it, the Obama administration says it opposes one version of the bill now under consideration in the Senate, but supports another version.  However, it does not threaten to veto the less desirable bill.

On the other hand, here’s the language used in the Administration’s SAP regarding the House’s bill H.R. 2 which would repeal the Affordable Health Care Act:  “If the President were presented with H.R. 2, he would veto it” with the “would” underscored in the original document.

That is an unmistakable veto threat, one that does not leave the President with much wiggle room. More generally, SAPs serve as a signaling device.  They are a means by which the President can convey information to Congress regarding his legislative preferences.  Congress can then decide how to respond.    Political scientists have spent extensive time unpacking the logic of these signaling games, focusing in particular on veto threats and vetoes, in large part because these tactics are amenable to the type of deductive reasoning that rational choice theorists employ, and because it is easy to test some of the logical implications of these models.  I won’t delve too deeply into these models here, except to say that they can get very complicated depending on the assumptions one incorporates into them. The important point to remember is that the particular phrasing a president uses in a SAP is actually crucial to the signaling game; words convey not only a President’s preferences, but also the intensity with which he holds those preferences.

So, what does the Obama Administration’s SAP dealing with the military authorization bill actually say?  Here’s the opening line:  “The Administration supports Senate passage of S. 1867, the National Defense Authorization Act for Fiscal Year (FY) 2012.”  That’s right – the bill that most media and blogging outlets (including mine) are reporting that Obama is threatening to veto actually had the administration’s support, at least as of November 17! But wait – there’s more; further down the SAP contains this language:

“The Administration strongly objects to the military custody provision of section 1032, which would appear to mandate military custody for a certain class of terrorism suspects. This unnecessary, untested, and legally controversial restriction of the President’s authority to defend the Nation from terrorist threats would tie the hands of our intelligence and law enforcement professionals. Moreover, applying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.”

And finally – and this is the crucial passage: “Any bill that challenges or constrains the President’s critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President’s senior advisers to recommend a veto” (italics added).

So, to be clear, unlike the wording of the SAP stating the President’s reaction to the bill proposing to repeal Obamacare, the President has – as yet – not issued a SAP saying he will veto the military authorization bill.  In fact, he has left his final decision unclear, although he has noted that his advisers will be pressing him to veto.  Senators – including members of Obama’s own party – were forced to decide what the President would do if this bill passes in its current form.  Evidently most concluded that either the President will not act on his advisers’ recommendation to veto the bill, or that if he does they have the votes to override it. Or perhaps they expect the veto to be sustained, but still felt it in their own political interest to vote for the bill.  Note that there may be a range of motives in play, and not all of them are necessarily equally applicable to each Senator.

This is where the notion of “professional reputation”, a phrase coined by presidency scholar Richard Neustadt, comes into play.  Simply put, in trying to anticipate what the President might do, senators look in part Obama’s prior actions for clues regarding his likely behavior in this case. How many veto threats did he issue before? In how many cases did those threats come to fruition?

If we put ourselves in their shoes and examine Obama’s prior veto threats, what do we find?

Owen Witek looked through all of the Obama SAP’s listed on the White House website  that have been issued since he took office to see how many contained veto threats.  In this case, Owen used a rather broad definition of a veto threat; he counted any language suggesting a potential veto, even if issued by Obama’s advisers, as a real veto threat. (Note: these were SAP’s dealing with nonappropriation-related legislation.)  Interestingly, in the first two years of his presidency, Obama expressed opposition to only four bills being considered in the 111th Congress, and he threatened to veto three of those bills. He eventually issued two vetoes, but they were not directed to any of the bills that were the subject of veto threats. (One was an appropriations bill, so it wouldn’t have made Witek’s list.)

Since the Republican takeover of the House, however, the number of nonappropriation-related veto threats, as defined here, has jumped dramatically; in the first session of the 112th Congress, Witek counts 52 SAP’s that contain language saying Obama opposes all or a portion of pending legislation.  Thirty-one of those statements contain veto threats.  Since Witek made his count, the President has apparently issued at least one more veto threat (although I’ve yet to see the SAP for it on the White House website), this time objecting to efforts by House Republicans to package a plan to support the controversial Keystone oil shale pipeline with legislation extending the payroll tax cuts that are now due to expire Jan. 1.  Despite Obama’s threat, House Republican leaders seem intent on including the provision, which they see as necessary to win over Tea Party-backed Republicans.  These Republicans fear that by extending the payroll tax cut they are jeopardizing entitlement programs funded through these funds.  The House bill also includes other sweeteners designed to appease Republicans, including restrictions on illegal immigrants receiving tax benefits and reducing long-term unemployment benefits.

So, what does this record suggest about Obama’s likely response to the military authorization bill if it reaches his desk?  Frankly, it’s hard to tell without going into a deeper study of Obama’s SAPs, the context in which they were issued, and the reaction to his veto threats.  My best guess that Obama is not likely to veto it, his advisers’ recommendations to the contrary notwithstanding.  The Keystone rider to the payroll bill, on the other hand, is an entirely different matter – here it is Obama who has personally and publicly issued the veto threat, daring the Republicans to call his bluff.  It’s inconceivable to me that if it somehow passed the Senate in its current form (it won’t) and came to the President’s desk for his signature, he would not veto it.

Looking ahead, it seems clear to me that by the end of this congressional session his current veto total is likely to increase beyond the current two.  Note that neither George W. Bush nor Bill Clinton vetoed any bills in their first two years in office – in fact, Bush didn’t issue his first veto until after his reelection to a second term.  But Clinton ended up issuing 36 vetoes – all after the Republicans took control of Congress in 1994, and Bush ended up with 12 vetoes, 11 coming when the Democrats captured the Congress in 2006. In issuing these vetoes, Bush was overturned 4 times, Clinton just twice.

Whenever the Congress and the President are involved in a veto game, they have to ask themselves: what do I think I know about the other actor’s reputation?  Are their threats credible?  Or are they bluffing?  And perhaps most crucial: what are the consequences if I’m wrong? Sometimes the consequences can be quite costly, which is why presidents are very judicious in the wording they use in their SAP’s.

In any type of negotiation like this, of course, the key is not to misjudge one’s opponent….punk.

 

 

Will You End Up in Guantanamo Bay Prison?

The focus on the Republican nomination battle threatens to overshadow a fascinating debate that unfolded this past week on Capitol Hill – one that crossed party lines and raised the possibility of a rare presidential veto.  The dispute centers on provisions in the $662 military authorization bill that lays out military policy and related spending parameters for the next fiscal year.  In an unusual coalition, libertarian-minded Senate Republicans including Rand Paul joined with liberal Democrats such as Diane Feinstein to fight a provision in the bill that would allow the military to hold suspected terrorists indefinitely, without the right to trial – even if they are American citizens captured on American soil.  Senators backing the provision, including Republicans Lindsey Graham and John McCain, and Democrat Carl Levin who chairs the Senate Armed Services committee, said its inclusion signified recognition that the War on Terror was taking place here at home as well as overseas. As Graham put it: “It is not unfair to make an American citizen account for the fact that they decided to help Al Qaeda to kill us all and hold them as long as it takes to find intelligence about what may be coming next. And when they say, ‘I want my lawyer,’ you tell them, ‘Shut up. You don’t get a lawyer.’” That view, they argue, is consistent with the Supreme Court ruling in Hamdi v. Rumsfeld allowing the government to hold Americans as enemy combatants. But critics including Paul argue that allowing the military to hold Americans captured within the United States without trial is a dangerous expansion of police powers and a violation of civil liberties.

Ultimately, the differences were papered over by an amendment that appears to give the president some flexibility to move suspected terrorists from military to civilian custody and which states that nothing in the legislation would alter existing law when it came to military detention of U.S. citizens and those captured on American soil.

Despite the overwhelming Senate support for passage (the bill passed 93-7 and will be reconciled with a House version. Senators voting nay included three Democrats, three Republicans and one independent), however, President Obama is still threatening to veto the bill in its current form.  However, if administration spokespersons are to be believed, Obama’s objection is based not so much on concern for civil liberties as it is on preserving the president’s authority and flexibility in fighting the war on terror. According to White House press secretary Jay Carney, “Counterterrorism officials from the Republican and Democratic administrations have said that the language in this bill would jeopardize national security by restricting flexibility in our fight against Al Qaeda.”  (The administration also objects to language in the bill that would restrict any transfer of detainees out of Guantanamo Bay prison for the next year.)  For these reasons, the President is still threatening to veto the bill, which now goes to the Republican-controlled House where it is unlikely to be amended in a way that satisfies the President’s concerns.  If not, this sets up an interesting scenario in which the President may have to decide whether to stick by his veto threat and hope that partisan loyalties kick in to prevent a rare veto override.

The debate over the authorization bill is another reminder of a point that you have heard me make before: that when it comes to national security issues and the War on Terror, President Obama’s views are much closer to his predecessor’s George W. Bush’s than they are to candidate Obama’s.  The reason, of course, is that once in office,the president – as the elected official that comes closest to embodying national sovereignty – feels the pressure of protecting the nation from attack much more acutely than anyone else. That pressure drives them to seek maximum flexibility in their ability to respond to external threats, and to resist any provision that appears to constrain their authority.  This is why Obama’s conduct of the War on Terror has followed so closely in Bush’s footsteps – both are motivated by the same institutional incentives and concerns.

The Senate debate, however, also illustrates a second point.  We often array elected officials along a single ideological line, from most conservative to most liberal. Think Bernie Sanders at one end and Jim DeMint at the other.  In so doing, we are suggesting that those individuals at the farthest ends of the spectrum have the greatest divergence in ideology.  But on some issues, including this authorization bill, that ideological model is misleading.  Instead, it is better to think of legislators arrayed in a circle, with libertarian Republicans and progressive Democrats sitting much closer together, say, at the top of the circle, joined together in their resistance to strong government and support for civil liberties.  At the “bottom” of the circle are Republicans like Graham and Democrats like Levin who share an affinity for strengthening the government’s ability to protect the nation’s security.

For Obama, however, the central  issue is not the clash of civil liberties and national security – it is the relative authority of the President versus Congress to conduct the War on Terror. That explains why he has stuck by his veto threat despite the legislative compromise.  And it raises an interesting test of power. To date he has issued only two presidential vetoes, by far the lowest number of any President in the modern era. His predecessor George W. Bush issued 12, and saw Congress override four – a historically high percentage of overrides.  On average, presidential vetoes are overridden about 7% of the time. These figures, however, underplay the use of veto threats as a bargaining tool.  In the 110th (2007-08) Congress alone, Bush issued more than 100 veto threats. I’ve not calculated Obama’s veto threats, but it is easy enough to do by going to the White House’s website and looking under its Statements of Administrative Policy (SAP’s) listings. Those should include veto threats. Note that most veto threats are relatively less publicized and often are issued early in the legislative process.  This latest veto threat, in contrast,seems to have attracted quite a bit of press attention.  It will be interesting to see whether, if the current authorization language remains unchanged, Obama will stick to his guns.

Meanwhile, keep those election predictions coming – there’s a free t-shirt at stake!