Tuesday, May 20, 2008

A Tale of Two Branches

It’s interesting the different approaches of the Executive and Legislative branches to the whole whistleblower thing. The 110th Congress has been working for quite some time towards increasing the protections available to federal employees who make protected disclosures and out their federal employers as having violated some law. The Whistleblower Protection Enhancement Act (H.R. 985) is intended to strengthen protections which are supposed to be in the Whistleblower Protection Act but have been significantly eroded by Federal Circuit case law over the years. The House version is excellent, including protections for:

(1) national security whistleblowers at the FBI and intelligence agencies;

(2) government contractors; and

(3) federal baggage screeners;

(4) jury trials for a fair day in court; and

(5) reinforced protections for federally-funded scientists.

The House passed H.R. 985 in March 2007 and the Senate passed a somewhat less impressive version of the same legislation (S.274) unanimously in December 2007. Yay, Congress! The bill, which has been hatching for the last eight years, is now in conference committee. Presumably, at some point, it will emerge and will go to President Bush. Who will then veto it.

Why? Good question. This administration’s hostility to whistleblower rights is both totally irrational and quite startling. Congress earlier cleverly packaged some defense contractor whistleblower protections in H.R. 4986 - the National Defense Authorization Act for Fiscal Year 2008 - which the president could hardly veto. Section 846 of the NDAA08 would protect employees of defense contractors when they report fraud to Congress, an inspector general, the GAO, or a DOD employee charged with overseeing contracts. Who could possibly disagree with that?

The Decider, that’s who. Unfortunately, the President had recourse to one of his infamous and almost certainly unconstitutional signing statements. The signing statement for H.R. 4986 reads, in pertinent part:

Provisions of the Act, including sections 841, 846, 1079 and 1222, purport to impose
requirements that could inhibit the President’s ability to carry out his constitutional
obligation
to take care that the laws be faithfully executed, to protect national security, to
supervise the
executive branch and to execute his authority as Commander in Chief. The
executive branch
shall construe such provisions in a manner consistent with the
constitutional authority of the
President.

Got that? No matter the plain language of the statute that was enacted by Congress consistent with all constitutional requirements. The Executive Branch will not enforce it.

Umm, how can they do that? Again, good question.

(Thanks to the Whistleblower Protection Blog for reporting this issue.)

Unsurprisingly, elsewhere in the Executive Branch, whistleblowers are having a hard time of it under the current state of the law. On March 25, a group called Public Employees for Environmental Responsibility (PEER) released its analysis all of the decision by Labor Secretary Elaine Chao’s Administrative Review Board (ARB) from 1996 through 2006 under the Whistleblower Provisions of the Clean Air Act, Safe Drinking Water Act, Superfund, Clean Water Act, Toxic Substances Control Act, Solid Waste Disposal Act and the Energy Reorganization Act. The ARB reviews all recommended decisions by non-partisan administrative law judges following evidentiary hearings into each whistleblower’s claim.

Our readers will no doubt be shocked to learn that reversals of pro environment whistleblower decisions rose 250% during the Bush years. PEER reports that the Bush ARB reversed 7 out of 10 pro-whistleblower decisions, in stark contrast to the Clinton ARB, which affirmed 7 out of 10. Incredible.

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