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Bush cites authority to bypass FEMA law

Signing statement is employed again

By Charlie Savage, Globe Staff  |  October 6, 2006

WASHINGTON -- President Bush this week asserted that he has the
executive authority to disobey a new law in which Congress has set
minimum qualifications for future heads of the Federal Emergency
Management Agency.

Congress passed the law last week as a response to FEMA's poor handling
of Hurricane Katrina. The agency's slow response to flood victims
exposed the fact that Michael Brown, Bush's choice to lead the agency,
had been a politically connected hire with no prior experience in
emergency management.

To shield FEMA from cronyism, Congress established new job
qualifications for the agency's director in last week's homeland
security bill. The law says the president must nominate a candidate who
has "a demonstrated ability in and knowledge of emergency management"
and "not less than five years of executive leadership."

Bush signed the homeland-security bill on Wednesday morning. Then,
hours later, he issued a signing statement saying he could ignore the
new restrictions. Bush maintains that under his interpretation of the
Constitution, the FEMA provision interfered with his power to make
personnel decisions.

The law, Bush wrote, "purports to limit the qualifications of the pool
of persons from whom the president may select the appointee in a manner
that rules out a large portion of those persons best qualified by
experience and knowledge to fill the office."

The homeland-security bill contained measures covering a range of
topics, including terrorism, disaster preparedness, and illegal
immigration. One provision calls for authorizing the construction of a
700-mile fence along the Mexican border.

But Bush's signing statement challenged at least three-dozen laws
specified in the bill. Among those he targeted is a provision that
empowers the FEMA director to tell Congress about the nation's
emergency management needs without White House permission. This law,
Bush said, "purports . . . to limit supervision of an executive branch
official in the provision of advice to the Congress." Despite the law,
he said, the FEMA director would be required to get clearance from the
White House before telling lawmakers anything.

Bush said nothing of his objections when he signed the bill with a
flourish in a ceremony Wednesday in Scottsdale, Ariz. At the time, he
proclaimed that the bill was "an important piece of legislation that
will highlight our government's highest responsibility, and that's to
protect the American people."

The bill, he added, "will also help our government better respond to
emergencies and natural disasters by strengthening the capabilities of
the Federal Emergency Management Agency."

Bush's remarks at the signing ceremony were quickly e-mailed to
reporters, and the White House website highlighted the ceremony. By
contrast, the White House minimized attention to the signing statement.
When asked by the Globe on Wednesday afternoon if there would be a
signing statement, the press office declined to comment, saying only
that any such document, if it existed, would be issued in the "usual
way."

The press office posted the signing-statement document on its website
around 8 p.m. Wednesday, after most reporters had gone home. The
signing statement was not included in news reports yesterday on the
bill-signing.

Senator Susan Collins, a Republican from Maine and chairwoman of the
Senate Homeland Security and Government Affairs Committee, who has been
one of the harshest critics of FEMA's performance during Katrina,
yesterday rejected Bush's suggestion that he can bypass the new FEMA
laws.

Responding to questions from the Globe, Collins said there are numerous
precedents for Congress establishing qualifications for executive
branch positions, ranging from the solicitor general's post to the
director of the Fish and Wildlife Service.

She also said that Congress has long authorized certain officials from
a variety of departments "to go directly to Congress with
recommendations," pointing out that the FEMA director statute was
modeled after a law that gives similar independence to the chairman of
the Joint Chiefs of Staff at the Pentagon.

"I believe it is appropriate to extend this authority to the official
tasked with leading the nation's response to disasters," she said.

Georgetown Law School professor Martin Lederman said Congress clearly
has the power to set standards for positions such as the FEMA director,
so long as the requirements leave a large enough pool of qualified
candidates that the White House has "ample room for choice."

"It's hard to imagine a more modest and reasonable congressional
response to the Michael Brown fiasco," said Lederman, who worked in the
Justice Department's Office of Legal Counsel from 1994 to 2002.

The White House did not respond to requests for comment about its
signing statement.

In the past, the administration has defended the legality of its
signing statements. It has also argued that because Congress often
lumps many laws into a single package, it is sometimes impractical to
veto a large bill on the basis of some parts being flawed .

At a June hearing before the Senate Judiciary Committee, a Bush
administration attorney, Michelle Boardman , noted that other US
presidents have also used signing statements. She asserted that Bush's
statements "are not an abuse of power."

Bush's use of signing statements has attracted increasing attention
over the past year. In December 2005, Bush asserted that he can bypass
a statutory ban on torture. In March 2006, the president said he can
disobey oversight provisions in the Patriot Act reauthorization bill.

In all, Bush has challenged more than 800 laws enacted since he took
office, most of which he said intruded on his constitutional powers as
president and commander in chief. By contrast, all previous presidents
challenged a combined total of about 600 laws.

At the same time, Bush has virtually abandoned his veto power, giving
Congress no chance to override his judgments. Bush has vetoed just one
bill since taking office, the fewest of any president since the 19th
century.

Earlier this year, the American Bar Association declared that Bush's
use of signing statements was "contrary to the rule of law and our
constitutional separation of powers."

Last month, the nonpartisan Congressional Research Service concluded
that Bush's signing statements are "an integral part" of his
"comprehensive strategy to strengthen and expand executive power" at
the expense of the legislative branch.