As I explained three years ago, the signatories to the ABA’s foolish report on presidential signing statements deserve intense derision for their shoddy and irresponsible work. Further special recognition seems to have been earned by two of those signatories, former Yale law school dean Harold Koh and attorney Mark D. Agrast.
In adopting the ABA’s report on presidential signing statements, both Koh and Agrast voted to “oppose, as contrary to the rule of law and our constitutional system of separation of powers, a President’s issuance of signing statements to claim the authority or state the intention to disregard or decline to enforce all or part of a law he has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress.” (Report, p. 5.) They and their fellow signatories maintained that their opposition was “directed not just to the sitting President, but to all Chief Executives who will follow him.” (Id.) They embraced the confused and rhetorically extravagant assertion that a president “may not sign [bills] into law and then emulate King James II by refusing to enforce them” (or any part of them). (Id. at 19.)
As State Department legal adviser, Koh is now apparently implementing President Obama’s signing statement in March that asserted the president’s authority to disregard certain provisions of the Fiscal Year 2009 Department of State, Foreign Operations, and Related Programs Appropriations Act. Specifically, as the New York Times recently reported (and as I discussed here), the Obama administration, has chosen to “disregard a law forbidding State Department officials from attending United Nations meetings led by representatives of nations considered to be sponsors of terrorism.” The most recent reported instance of State Department officials’ disregarding this law occurred earlier this month, under Koh’s watch.
As I learned from a passing mention in an article in today’s Washington Post, Agrast, meanwhile, has become the deputy assistant attorney general for legislative affairs in the Department of Justice. In that capacity, Agrast has the job of defending to members of the Senate and House and their staffers the positions that President Obama has taken in his various signing statements.
If Koh and Agrast truly believe that President Obama’s signing statements are “contrary to the rule of law and our constitutional system of separation of powers,” how can they be complicit in their implementation? It’s of course theoretically possible, but in my judgment highly improbable, that Koh and Agrast are conscientious objectors to President Obama’s signing-statements practice—in other words, that they have quietly refused to carry out some of the duties ordinarily associated with their positions. It’s also possible that they have recognized how foolish the position they publicly took in 2006 was. If so, it would have been be fitting for them to say so publicly. [On review, I’ve tweaked the verb tense in the preceding sentence, as I don’t mean to maintain that Koh and Agrast have the same freedom to speak publicly on the matter that they had before taking their jobs in the Administration.]