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By Michael Van Sickler December 17, 2007

Indeed, Bush did it his way

"(Bush) used (signing statements) as essentially a form of veto," Sen. Hillary Clinton said during a Democratic debate in December 2007. "He did it through a piece of legislation I passed, where it was pretty simple. I said: 'If you're going to have a FEMA director, it should be somebody with experience handling emergencies.'... And when George Bush signed the bill it was part of, he specifically used a signing statement to say, 'I don't have to follow that, unless I choose to.'''

The legislation Clinton refers to came after the federal government's lackluster response to Hurricane Katrina. Included in a 2006 spending bill for the agency, a new requirement was added that said future Federal Emergency Management Agency directors must have a "demonstrated ability in and knowledge of emergency management" and "not less than five years of executive leadership."

Bush had appointed Michael "You're doing a heckuva job, Brownie" Brown to the top FEMA job in 2003, even though he didn't have much emergency experience. Brown was removed from his position in the poorly managed aftermath of Katrina and the background requirement for future directors was added to FEMA's budget bill.

Essentially, Bush rejected the hiring requirements added to the bill. Choosing to forgo a veto, he interpreted the new law with a "signing statement," something his administration has done to challenge more than 1,100 laws — more than all previous presidents combined. (By comparison, Bush has vetoed seven.) The administration says the statements give Bush the right to ignore parts of the bill he deems unconstitutional, usually when power of the executive branch is at issue.

In this Oct. 4, 2006, signing statement, Bush took exception to the minimum standards for the FEMA director because they ruled out a "large portion of those persons best qualified by experience and knowledge to fill the office."

Bush said he would "construe (the qualifications section) in a manner consistent with the Appointments Clause of the Constitution," which gives presidents wide authority to make appointments that must be approved by the Senate. It was a formal way of saying Bush believes Congress has no business trying to dictate standards for presidential appointments and that he would ignore them.

So, in effect, Clinton correctly characterized Bush's response to the FEMA minimum standards. He really was saying he wouldn't follow this requirement unless he chose to do so.

But there's a larger context to Bush's refusal.

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The Bush administration has defended and expanded the powers of the executive branch. So it's no surprise that he doesn't want Congress meddling in his hiring decisions.

Historically, aside from the occasional scandal (see Teapot Dome, Watergate, Lewinsky), nothing pits the legislative branch against the executive branch more than a president's hiring and firing of personnel.

In 1868, when President Andrew Johnson fired Secretary of War Edwin Stanton, an angry U.S. Congress impeached him. In 1989, Bush's father got acquainted with this tension when he tried to appoint Sen. John Tower as defense secretary. The confirmation hearings got so ugly, reports of Tower's heavy drinking were made public and the Senate ultimately rejected him.

In 1993, Bill Clinton encountered troubles of his own, especially when he tried appointing an attorney general. Janet Reno was his third choice after Zoe Baird and Kimba Wood withdrew during a bruising confirmation process.

So it's through this presidential powers prism that the Bush administration resisted the limit on hiring FEMA's chief.

"The president has the authority to choose which of his subordinate officers he'll rely on," White House spokesman Tony Fratto told the Washington Post last year. "The president has the authority to determine what the relationship is between them."

We're not going to try resolving the constitutional dispute that's raised here. Bush may very well be right. But just because he is, doesn't mean Clinton isn't. Her statement about how Bush viewed the background requirements for a FEMA director is True.


Our Sources

109th Congress, "H.R. 5441: Department of Homeland Security Appropriations Act, 2007"

White House, President's statement on H.R. 5441, the "Department of Homeland Security Appropriations Act, 2007," office of the press secretary, Oct. 4, 2006

U.S. Senate, "Vetoes by President George W. Bush"

Times-Picayune (New Orleans), "Bush rejects minimum experience to lead FEMA; Democrats, Republicans alike blast president's stance on law," by Bruce Alpert, Oct. 7, 2006

Washington Post, "Bush balks at criteria for FEMA director; Signing statement asserts right to ignore parts of Homeland Security law," by Spencer S. Hsu, Oct. 7, 2006

Boston Globe, "Kerry joins push to limit signing statements; Device enables Bush to interpret Constitution," by Charlie Savage, July 10, 2007


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