Monday, May 01, 2006

Bush: I AM the law!

The Boston Globe has a piece that you would swear was satire. Except it's not.

President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution.

Among the laws Bush said he can ignore are military rules and regulations, affirmative-action provisions, requirements that Congress be told about immigration services problems, "whistle-blower" protections for nuclear regulatory officials, and safeguards against political interference in federally funded research.

Now, on one level Bush is correct: he's as free to ignore laws as the next guy. But there are consequences to doing so. The President is generally not at risk for criminal prosecution, but Congress is free to impeach him.

In addition, his general attitude has been shared by many presidents -- none of whom, for instance, have ever recognized the authority of the War Powers Act even as they complied with it.

What sets Bush apart is, as always, his method and the sheer scope of his reach. His method is to simply ignore the law and hope nobody notices. And the scope is of truly historic proportions.

Far more than any predecessor, Bush has been aggressive about declaring his right to ignore vast swaths of laws -- many of which he says infringe on power he believes the Constitution assigns to him alone as the head of the executive branch or the commander in chief of the military.

Many legal scholars say they believe that Bush's theory about his own powers goes too far and that he is seizing for himself some of the law-making role of Congress and the Constitution-interpreting role of the courts.

The Constitution requires the president to "faithfully execute" the laws. If he thinks they aren't Constitutional, there's a way to check that: take the case to the Supreme Court and get a ruling. Instead Bush imposes his own interpretation on the Constitution, which would appear to be unconstitutional and clearly unethical.

The story also gets into the effect of his "signing statements":

Bush is the first president in modern history who has never vetoed a bill, giving Congress no chance to override his judgments. Instead, he has signed every bill that reached his desk, often inviting the legislation's sponsors to signing ceremonies at which he lavishes praise upon their work.

Then, after the media and the lawmakers have left the White House, Bush quietly files "signing statements" -- official documents in which a president lays out his legal interpretation of a bill for the federal bureaucracy to follow when implementing the new law. The statements are recorded in the federal register.

In his signing statements, Bush has repeatedly asserted that the Constitution gives him the right to ignore numerous sections of the bills -- sometimes including provisions that were the subject of negotiations with Congress in order to get lawmakers to pass the bill. He has appended such statements to more than one of every 10 bills he has signed.

"He agrees to a compromise with members of Congress, and all of them are there for a public bill-signing ceremony, but then he takes back those compromises -- and more often than not, without the Congress or the press or the public knowing what has happened," said Christopher Kelley, a Miami University of Ohio political science professor who studies executive power.

Another seemingly clear-cut example:
The Constitution grants Congress the power to create armies, to declare war, to make rules for captured enemies, and ''to make rules for the government and regulation of the land and naval forces." But, citing his role as commander in chief, Bush says he can ignore any act of Congress that seeks to regulate the military.

Bush is wrong. As Commander in Chief, Bush is solely responsible for the conduct of the war; you do not want 480 Congressmen playing general. But he is merely the executor of the will of the people as expressed by Congress; the rules he operates under and even the strategic direction are ultimately Congress's responsibility. His relationship to Congress in this regard is a bit like the relationship that the Joint Chiefs have with the President: they conduct the operations, but they do so at the President's direction.

Bush is pulling what amounts to a dare: he does what he likes, and if Congress doesn't like it they can either drag him before the Supreme Court or cut off funding for his activities. Congress is reluctant to take so explosive a step in most circumnstances, and is even less likely to do so with Republican majorities in both houses. And so Bush is able to run roughshod over everyone.

There's a lot more to the story, with many more examples. I recommend reading it all.

What does it say about Bush's personality that he will sign a bill, then quietly add a statement saying he doesn't have to obey it? Are those the actions of an ethical, brave, stand-up, straight-talking leader? Not even close. To me they are more reminiscent of the little boy who breaks the rules and hopes he won't get caught.

What does it say about the balance of powers when Bush plainly states he will ignore any law he doesn't like, even laws he signed? It's a rather breathtaking act of political brinksmanship, daring Congress to impeach him or fold. Each individual dare might not be worth a Congressional challenge. But it sure seems worth it in the aggregate.

As long as there is a Republican Congress, any such challenge will be slow, halting and weak. It's yet one more reason to hope for a change of control in November: so that Congress can once again fulfill it's mandated role as a check and balance on the power of the executive branch.

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Anonymous maxtrue said...

You are right to beat this drum. I think the problem however, involves another issue apart from executive power. The Constitution did not place liability on government for failing to prevent one individual from injuring another nor were individuals or "groups" per se the enemy our military was designed to combat. We did fight the North African pirates, but foreign states were the target for US commanders.. In general, civil and international crime was considered a law enforcement problem and the police, courts and prisons, the process of justice and punishment, the Constitutional tools to punish criminal behavior. 9/11 elevated individuals to Statehood and created a liability (as opposed to responsibility) for successful terrorist acts against us upon our government in the context: "if negligence in preventative measures can be proven". That’s a big “if”, should government becomes classified to Congress and whistle blowers are made felons. When the government (Congress) is excluding from knowing what the counter-terrorism mechanism is doing, how can it be assessed, directed or improved, how can political accountability fall on the Congress or State government? And yet that is what will happen. Another successful attack here will illustrate my point. To summarize, 9/11 allowed government to assume broad power to prevent terrorism as the people declared that inadequate protection amounted to criminal negligence.

The president is briefed about a new threat. Here is a good example because pilotless aircraft may well become the terrorist's top pick: UAVs. Perhaps Congress will decide to regulate UAVs and require security protocols for the commercial manufacture of all UAVs. Perhaps hobbyists should be licensed. Perhaps private aircraft could be better regulated as well.

Meanwhile, imagine that this President believes he has the exceptional authority to act (regardless of the Constitutional delegation of powers) and orders intelligence organizations to spy on all Americans who are connected in anyway to the Manufacture, Sale, Design and Use of model airplanes (or rockets, helicopters, boats, balloons and kites? He builds new satellites to tracks the many thousands of domestic flying objects (DFOs). He classifies all data obtained and the results of this spying. It sounds crazy, doesn't it?

Certainly, the Constitution points the way to resolve this situation and I ask all conservatives who bemoan big government how they can allow their party to create an unprecedented and unregulated arm of federal power to metastasize and threaten liberty in such a needless way? Do we now have a court that will grant new powers to the government in addition to the powers past courts have already granted under the commerce act? Will this court see any inherent right to privacy or the need for judical review at all levels of governmental action?

From the doctrine of pre-emption (which abrogates certain treaty obligations) to the Bush Doctrine of executive power, we are witnessing a momentous rip in our Constitutional fabric. We need serious Congressional and Judicial tailor to sow up the tear before it is too late. While Bush may rest his administration’s ability to circumvent law and act without clear criteria or Congressional review on 9/11, the structural imbalance between secret government and a polarized Congress under a relatively one-party control is a recipe for abuse. It creates a less than fully vetted strategic planning that is inconsistent with the very ideals our blood and dollar is defending. A realistic democratic leadership with a House majority could be the catalyst for correcting on Constitutional disequilibrium before for we suffer the entropy of a divided America.

5/01/2006 11:47 PM  

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