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January 20, 2007

This Is What Happens When Congress Doesn’t Read the Bills

The power and discretion to prosecute individuals in federal court is easily abused. That’s why, until recently, Presidential appointments to the office of U.S. Attorney have always required Senate approval. This check on the executive branch helped ensure that U.S. Attorneys were qualified, competent, and ethical. The President couldn’t staff his Administration with unqualified lackeys – at least not without Senate approval.

Since last March, however, U.S. Attorney appointments no longer require Senate approval. Now, the President can fire U.S. Attorneys at will and replace them with whomever he wants. The terms of office of these new appointees expire at the end of the President’s term.

How did a law providing for such a drastic change in the appointment process get passed? Why would Senators voluntarily give up their advise-and-consent power?

As Kathy Gill writes, this extraordinary surrender to the executive branch was an obscure provision in, believe it or not, the Patriot Act Reauthorization Act of 2005 (Patriot II). According to Gill,

The language that was replaced by PL 109-177 [i.e., Patriot II] specified that if a US Attorney resigned before the end of his term, that the Court nominated an interim US attorney until the Senate acted on a Presidential nomination.

The term for the interim US Attorney was limited by law to 120 days.

Now, the President makes the appointment, there is no limit to the duration of this supposedly interim appointment, and there is no Senate oversight required.

How Did It Happen?

On 11 July, Rep James Sensenbrenner, Jr (R-WI), introduced the seven-page bill. There were no co-sponsors. The Judiciary and Intelligence Committees had their way with the bill, and when the House passed it on 21 July, it totalled 117 pages.

The Senate didn’t like any of it; they sent the House a complete substitution on 29 July 2005.

On 9 November, the House agreed that the solution was a conference committee, where legislators from both chambers hammer out differences. It was in the conference process that this clause — as well as several other “miscellaneous” items — was added to the bill.

Gill adds, “The conference process is not “open” — there is no record in the Congressional Record of who made what changes to the text. So we’ll never know who inserted this clause, unless they ‘fess up (or someone rats them out).”

In another post, Gill notes that Bush has used this new power to force out one experienced attorney, and has replaced him with a young Karl Rove protege. Sen. Dianne Feinstein protested, even though she voted for Patriot II. Gill says, “I have no sympathy for Senators and Representatives who, after the fact, complain about legislation having language that they were not aware of. FIX the process, why don’t you?” agrees wholeheartedly, and we provide solutions that will fix the process. Our Read the Bills Act ensures that members of Congress will have read and understood a bill before voting for it. This way, they can’t run from or make excuses for their own votes. (It will also encourage them to write shorter bills.) And our forthcoming “One Subject at a Time Act” will ensure that separate issues are dealth with in separate bills.

If we had had the “Read the Bills Act” a year ago, all members of Congress (and interested members of the public) would have known about this provision before Congress voted on it. It is likely there would have been a movement to strike the provision from the final bill. And if we had had the “One Subject at a Time Act,” this provision wouldn’t have been in the Patriot Act II bill at all. It would have had to stand or fall entirely on its own merits.

In all likelihood, such a measure would never have passed.

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