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January 09, 2006

Does Bush enforce the law or is he above it?

In order to graduate from eighth grade or become a naturalized United States citizen you have to know one thing. "Congress writes the laws, the executive branch enforces the laws, and the judicial branch interprets the laws." It seems that most of the Bush administration would fail this simple Constitutional test.

WASHINGTON - President Bush agreed with great fanfare last month to accept a ban on torture, but he later quietly reserved the right to ignore it, even as he signed it into law.

Acting from the seclusion of his Texas ranch at the start of New Year's weekend, Bush said he would interpret the new law in keeping with his expansive view of presidential power. He did it by issuing a bill-signing statement - a little-noticed device that has become a favorite tool of presidential power in the Bush White House.

In fact, Bush has used signing statements to reject, revise or put his spin on more than 500 legislative provisions. Experts say he has been far more aggressive than any previous president in using the statements to claim sweeping executive power - and not just on national security issues.

"It's nothing short of breath-taking," said Phillip Cooper, a professor of public administration at Portland State University. "In every case, the White House has interpreted presidential authority as broadly as possible, interpreted legislative authority as narrowly as possible, and pre-empted the judiciary."

Signing statements don't have the force of law, but they can influence judicial interpretations of a statute. They also send a powerful signal to executive branch agencies on how the White House wants them to implement new federal laws.

In some cases, Bush bluntly informs Congress that he has no intention of carrying out provisions that he considers an unconstitutional encroachment on his authority.

"They don't like some of the things Congress has done so they assert the power to ignore it," said Martin Lederman, a visiting professor at the Georgetown University Law Center. "The categorical nature of their opposition is unprecedented and alarming."

This is why people assume the worst about things like the NSA scandal.

Via Laura Rozen, blogger Mort Halperin adds this comment:

Presidential signing statements were, in fact, invented by Judge Alito, whose hearings for a Supreme Court seat starts on Monday. The original purpose was to enable the President to participate in creating legislative history. Now President Bush uses the statements to identify some of the provisions he plans to ignore.

There are several such assertions in this single signing statement, but I want to comment only on the provision relating to torture. Here is what the President said about that provision:

"The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks."

In other words, if the President wants to direct the CIA to torture captives held in secret prisons around the world, he will feel free to do so. Senators McCain and Warner reacted sharply to this extraordinary challenge to the Congress's constitutional right to enact the laws, saying this:

“We believe the President understands Congress’s intent in passing by very large majorities legislation governing the treatment of detainees included in the 2006 Department of Defense Appropriations and Authorization bills. The Congress declined when asked by administration officials to include a presidential waiver of the restrictions included in our legislation. Our Committee intends through strict oversight to monitor the Administration’s implementation of the new law.”

Posted by Mike at January 9, 2006 10:16 PM

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