Acting Atty. Gen. Peter Nickles
Acting Atty. Gen. Peter Nickles

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LL and other local observers have gotten plenty of mileage out of comparing Mayor Adrian M. Fenty‘s executive-power-aggregating habits to those of President George W. Bush.

Let the comparisons continue!

Early in October, the D.C. Council passed the fiscal 2010 city budget, after months of wrangling over how best to deal with a late-breaking drop in city revenue. The process had not exactly been a model of interbranch cooperation, with the council jawing about Fenty’s methods of closing the $660 million budget gap and Hizzoner threatening a veto over school-governance matters.

But even with the final vote, the bickering hasn’t ceased. On Oct. 15, Attorney General Peter J. Nickles dispatched a 13-page memo [PDF] to Fenty, who in turn sent it to Gray. The document lays out no fewer than 16 provisions included in the budget legislation that Nickles and his lawyers found to be objectionable—-including six measures, he announced, that the executive branch should ignore completely due to “problems, including separation-of-powers and other Home Rule Act violations, that prevent lawful implementation.”

The practice mirrors Bush’s embrace of “signing statements”—-messages sent to lawmakers accompanying the presidential signature. The practice, certainly, did not begin with Bush—-presidents as far back as James Monroe have made them, but the practice saw a halcyon era under Bush 43. According to one professor’s analysis, Bush by the end of his term ended up challenging some 1,100 provisions in federal law—-more than doubling all those issued before him.

Where Bush’s memos addressed matters such as affirmative action programs and the treatment of military detainees, Fenty’s memo deals with matters like taxi rates (the council has no power to set them), budget directives for the deputy mayor’s office (an “unlawful management of Executive Branch affairs”), and grant reporting requirements for the Children and Youth Investment Trust Corp. (the home rule charter says the council only gets to review contracts, not grants).

But just as Bush’s use of the maneuver sent Congress over the edge, Nickles’ memos are driving council types crazy.

Ward 3 Councilmember Mary Cheh says Nickles “is channeling Alberto Gonzales on an unsupported theory of executive power” and says he “doesn’t really understand” the doctrines he cites. At-Large Councilmember Phil Mendelson says “much of the logic is tortured” and that it’s “part of this continuing pattern of picking and choosing which laws to follow.” Even At-Large Councilmember David A. Catania of all people, increasingly peeved by Fenty overreaching, calls them “an exercise in creative writing without the force of law.”

As on the federal level, mayors have issued legislative memos before, but usually to accompany vetoed legislation, says Brian Flowers, the council’s chief lawyer. And since Fenty has taken office, he says, the memos have been flying faster than ever before, with increasingly broad legal claims.

As for the claims in Nickles’ budget memos, “Some of them are quite laughable,” Flowers says. He is drafting a response.

Nickles has a fine retort to the Bush comparisons: “Why don’t they criticize President Obama, who’s engaged in the same practice?”

Indeed, Barack Obama said during the 2008 campaign that he and his lawyers “aren’t going to use signing statements as a way to do an end run around Congress.” Since taking office, however, Obama has issued dozens of his own, and Nickles says he’s read them: “He ensured that Congress knows the president’s view…that he’s not going to interpret legislation to interfere with the Constitution.”

Nickles explains his legislative memos this way: “I think the executive has the duty to stand for the executive’s prerogatives. Otherwise, in our tripartite system of government, one part will run over the other part.”

Photo by Darrow Montgomery