On January 12th, President Bush signed the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006. As he so often does, Bush attached a signing statement to the law, reserving the "right" to ignore certain parts of the law he had just signed. I won't pretend to understand everything in the signing statement, but there is one clause in the statement that makes it clear that the President is reserving the right to appoint political hacks for positions that require some knowledge of science:
Subsection 505(a) of the Marine Mammal Protection Act of 1972, as enacted by section 902 of the Act, purports to condition the authority granted to the President to make appointments upon prior consideration of recommendations from particular sources and purports to limit the qualifications of the pool of persons from whom the President may select appointees in a manner that rules out a large portion of those persons best qualified by experience and knowledge to fill the positions. ...The executive branch shall construe these provisions in a manner consistent with the Appointments Clause.
The positions in question are brand new. Last year, the US and Russia signed an agreement to manage a population of polar bears. As part of this agreement, a joint US-Russia commission is being set up to oversee the management of the bears. The qualifications that the Act requires for those being appointed to the commission, and which the president claims, "rules out a large portion of those persons best qualified by experience and knowledge to fill the positions," are rather simple:
(2) QUALIFICATIONS- With respect to the United States commissioners appointed under this subsection, in accordance with paragraph 2 of article 8 of the Agreement--
`(A) 1 United States commissioner shall be an official of the Federal Government;
`(B) 1 United States commissioner shall be a representative of the Native people of Alaska, and, in particular, the Native people for whom polar bears are an integral part of their culture; and
`(C) both commissioners shall be knowledgeable of, or have expertise in, polar bears.
Let's look at each qualification individually. (A) Requires one of the two commissioners to be an official of the Federal Government. (B) Requires that the other commissioner be a representative of the native people who have an interest in this population of polar bears. (C) Requires both commissioners to have expertise with polar bears.
Of these three qualifications, the first two were set by the international agreement that established the commission - The US and Russia agreed that the commission would consist of one government official and one native representative from each jurisdiction. The third seems to be rather appropriate, given that the only thing the commission does is manage a population of polar bears.
All that the qualifications section of the legislation does is mandate that the members of an international commission (a) meet the requirements established in the international agreement establishing the commission; and (b) have some expertise in the subject matter the commission will be dealing with. The idea that this somehow, "rules out a large portion of those persons best qualified by experience and knowledge to fill the positions," as the president is trying to claim, is simply insane. In claiming the "right" to ignore this section of the legislation, the president is claiming the right to appoint someone without good qualifications for the position. In short, he's trying to ensure that he can fill a position that should require an understanding of the science of conservation biology as applied to polar bears with someone who lacks any such knowledge. He's trying to make sure that he can continue to appoint political hacks more interested in advancing an anti-conservation ideology than in preserving the bears.
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Great post -- thanks for calling this story to my attention. Isn't the Supreme Court supposed to be weighing in on the legality of these signing statements sometime soon?
I also wonder whether this Administration has considered the long-term ramifications of the broadness with which it has used signing statements? Unlikely. I'm sure the White House Wormtongues wouldn't be so grinny if a President Obama was nullifying congressional legislation at his whim.
Actually, that legislation is disqualifying a potentially large number of possible candidates -- any academics with expertise would not be eligible. Although, if Bush had two thoughts to rub together, it would be fairly simple to provide a qualified academic with some sort of federal appointment, I should think.
I think you might want to read the entire section in question. It can be found at the NOAA's website, among other places. (Jump down to p. 123 to find the relevant text.) I am not well versed in reading legalese, but it appears to me that the signing statement may not be intended to mean what you're assuming it means. It may be aimed not at 505(a)(2), but at the section immediately above it, 505(a)(1), which tells the President to "take into consideration" the recommendations of several entities including a non-government group. "Take these recommendations into consideration" is frequently political doublespeak for "do what these people tell you to do." Bush may have meant simply to assert that the power of appointment belongs to the president and the president alone, and neither Congress nor anyone else can give him orders on who to appoint.
I actually did read the entire section. My take on the language of the signing statement is that is intended to cover both sections. I read:
as a response to 505(a)(1), and:
as referring to 505(a)(2). If they had intended the signing statement to refer to only the first section, I don't think that they would have used the word "and" to join those two clauses. I think they would have instead used "thereby" or something along those lines.
As I said in the post, the legislation does rule out anyone who isn't a federal official or a native representative, but that is because the international agreement establishing the commission specified that each country appoint one government official and one native representative to the commission. So unless Bush is claiming that Congress does not have the authority to require him to follow the terms of international agreements when appointing people to international commissions (which, given Bush, is certainly possible), that's probably not the clause that concerns him. (If it is, then chalk up another dictatorial power grab.)