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Power Grab

Grover Norquist, a principal organizer of the conservative movement who is close to the Bush White House and usually supports its policies, says, “If you interpret the Constitution’s saying that the president is commander in chief to mean that the president can do anything he wants and can ignore the laws you don’t have a constitution: you have a king.” He adds, “They’re not trying to change the law; they’re saying that they’re above the law and in the case of the NSA wiretaps they break it.” A few members of Congress recognize the implications of what Bush is doing and are willing to speak openly about it. Dianne Feinstein, Democratic senator from California, talks of a “very broad effort” being made “to increase the power of the executive.” Chuck Hagel, Republican senator from Nebraska, says:

There’s a very clear pattern of aggressively asserting executive power, and the Congress has essentially been complicit in letting him do it. The key is that Bush has a Republican Congress; of course if it was a Clinton presidency we’d be holding hearings.

The public scenes of the President surrounded by smiling legislators whom he praises for their wonderful work as he hands out the pens he has used to sign the bill are often utterly misleading. The elected officials aren’t informed at that time of the President’s real intentions concerning the law. After they leave, the President’s signing statements—which he does not issue verbally at the time of signing—are placed in the Federal Register, a compendium of US laws, which members of Congress rarely read. And they are often so technical, referring as they do to this subsection and that statute, that they are difficult to understand.

For five years, Bush has been issuing a series of signing statements which amount to a systematic attempt to take power from the legislative branch. Though Ronald Reagan started issuing signing statements to set forth his own position on a piece of legislation, he did it essentially to guide possible court rulings, and he only occasionally objected to a particular provision of a bill. Though subsequent presidents also issued such statements, they came nowhere near to making the extraordinary claims that Bush has; nor did they make such statements nearly so often.

According to an article in The Boston Globe, Bush has claimed the right to ignore more than 750 laws enacted since he became president. He has unilaterally overruled Congress on a broad range of matters, refusing, for example, to accept a requirement for more diversity in awarding government science scholarships. He has overruled numerous provisions of congressional appropriations bills that he felt impinged on his executive power. He has also overruled Congress’s requirement that he report back to it on how he has implemented a number of laws. Moreover, he has refused to enforce laws protecting whistle-blowers and providing safeguards against political interference in federally funded research. Bush has also used signing statements to place severe limits on the inspectors general created by Congress to oversee federal activities, including two officials who were supposed to inspect and report to Congress on the US occupation of Iraq.

The President could of course veto a bill he doesn’t like and publicly argue his objections to it. He would then run the risk that Congress would override his veto. Instead, Bush has chosen a method that is largely hidden and is difficult to challenge. As of this writing, Bush has never vetoed a bill (though he has threatened to do so in the case of a spending bill now pending in Congress). Some of the bills Bush has decided to sign and then ignore or subvert were passed over his objections; others were the result of compromises between Congress and the White House. Arlen Specter, the Republican senator from Pennsylvania and chairman of the Senate Judiciary Committee, told me, “Under the Constitution if the president doesn’t like a bill he vetoes it. You don’t cherry-pick the legislation.”

Bush has cited two grounds for flouting the will of Congress, or of unilaterally expanding presidential powers. One is the claim of the “inherent” power of the commander in chief.

Second is a heretofore obscure doctrine called the unitary executive, which gives the president power over Congress and the courts. The concept of a unitary executive holds that the executive branch can overrule the courts and Congress on the basis of the president’s own interpretations of the Constitution, in effect overturning Marbury v. Madison (1803), which established the principle of judicial review, and the constitutional concept of checks and balances.

The term “unitary government” has two different meanings: one simply refers to the president’s control of the executive branch, including the supposedly independent regulatory agencies such as the SEC and the FDA. The other, much broader concept, which is used by Bush, gives the executive power superior to that of Congress and the courts. Previous presidents have asserted the right not to carry out parts of a bill, arguing that it impinged on their constitutional authority; but they were specific both in their objections and in the ways they proposed to execute the law. Clinton, for example, objected to provisions in a bill establishing a semi-autonomous National Nuclear Security Administration, which set out the reasons for removing the director. Clinton objected that that impinged on his presidential prerogatives. Bush asserts broad powers without being specific in his objections or saying how he plans to implement the law. His interpretations of the law, as in his “signing statement” on the McCain amendment, often construe the bill to mean something different from—and at times almost the opposite of—what everyone knows it means.

The concept of the unitary executive, which has been put forward in conservative circles for several years, has been advocated mainly by the Federalist Society, a group of conservative lawyers who also campaign for the nomination of conservative judges. The idea was seriously considered in the Reagan administration’s Justice Department. One of its major supporters was Samuel Alito, then a lawyer in the Justice Department. In his confirmation hearing, Alito said that the memorandum he wrote saying that the president’s interpretation of a bill “should be just as important as that of Congress” was “theoretical.” But no president until Bush explicitly claimed that the concept of a unitary executive was a basis for overruling a bill.

The theory was formulated by John Yoo, a mid-level but highly influential attorney in the Justice Department between 2001 and 2003, who took the view that the president had the power to do pretty much whatever he wanted to do. (He also wrote the infamous memorandum defending what amounted to torture.1 ) As White House counsel, Alberto Gonzales, now attorney general, also publicly supported the theory of the unitary executive.

The theory rests on the Oath of Office, in which, according to the Constitution, the newly elected president promises to “faithfully execute the office of President,” and also on the section of Article II that states that the president “shall take care that the laws be faithfully executed.” The administration has put forward unprecedented interpretations of both clauses, claiming that they give the president independent authority, unchecked by the other branches of government, to decide what the law means. This theory overlooks the fact that the framers were particularly wary of executive power. A number of constitutional scholars I have spoken with describe the administration’s theory of the unitary executive as no more than a convenient fig leaf for enlarging presidential power.

2.

Bush’s claims of extraordinary power as commander in chief have been mainly invoked since September 11, 2001. He was able to exploit the anxieties the attacks had stirred, causing people to look to the President to defend them. Senator Jack Reed, Democrat of Rhode Island, recalled that everyone

looked to the presidency, not to the 535 senators and congressmen, to protect them from a further crippling attack and suspended their mistrust of government. So they [the administration] took great power, which has to be handled wisely, but they didn’t.

It is under the authority of his powers as commander in chief that Bush asserted the right to keep nearly five hundred “enemy combatants” in detention in Guantánamo, of whom only ten were charged with a crime. Most were handed over by Afghan bounty hunters who were paid by the US to turn in Arabs. Bush has also asserted the same authority in dealing with numerous bills passed by Congress, most spectacularly in his treatment of the McCain amendment banning “cruel, inhuman or degraded treatment” of POWs. In his signing statement, Bush said:

The executive branch shall construe [the torture provision] 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 judiciary….

This general formula had by then become a standard part of Bush’s signing statements, though few noticed. What Bush said about the torture bill was particularly egregious since Vice President Cheney, Bush’s liaison with Congress, had tried to negotiate with the Senate a provision watering down McCain’s amendment, and failed. The Senate passed it by a vote of 90 to 9, and the House endorsed it by a vote of 308 to 122. It had been an open, well-publicized fight and the President lost.

In late February, shortly after Bush’s signing statement on the McCain amendment, the Constitution Project, a bipartisan, nonprofit organization in Washington, issued a protest signed by former government officials of both parties, prominent conservatives, and scholars, saying that they “are deeply concerned about the risk of permanent and unchecked presidential power, and the accompanying failure of Congress to exercise its responsibility as a separate and independent branch of government.” They objected to Bush’s assertions that he “may not be bound” by statutes enacted by Congress, such as the McCain amendment, and that he can ignore “long-standing treaty commitments and statutes that prohibit the torture of prisoners.” It concluded that “we agree that we face a constitutional crisis.”2

Another egregious use of the signing statements occurred when Bush said in March that, in interpreting the bill reauthorizing the Patriot Act, he would ignore the requirement that the president report to Congress on the steps taken to implement the law, thus denying that the executive should be accountable to Congress. Patrick Leahy, the ranking Democrat on the Senate Judiciary Committee, issued an angry protest calling Bush’s use of signing statements “nothing short of a radical effort to re-shape the constitutional separation of powers and evade accountability and responsibility for following the law.” Leahy added, “The President’s signing statements are not the law, and we [the Congress] should not allow them to become the last word.”

Bush went still further in his extraordinary claim of supreme power on December 17, 2005, when he acknowledged that, as revealed in The New York Times the day before, the government was conducting warrantless wiretapping of domestic calls. He claimed that he had the power to order such taps “to save lives,” regardless of what the existing law said.

  1. 1

    See the review by David Cole of John Yoo’s The Power of War and Peace: The Constitution and Foreign Affairs After 9/11 (University of Chicago Press, 2005), in The New York Review, November 17, 2005.

  2. 2

    Among the signers were David Keene, chairman of the American Conservative Union; Abraham Sofaer, of the Hoover Institution and former legal adviser to Reagan’s State Department; Richard Epstein, a conservative legal scholar at the University of Chicago; Bruce Fein, formerly of the Reagan Justice Department and a conservative legal activist; and William Sessions, FBI director under George H.W. Bush. See www.constitutionproject.org.

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