Bush Challenges Hundreds of Laws
- From: "Jake" <jcbepstein@xxxxxxxxxxx>
- Date: 1 May 2006 10:00:08 -0700
Growing authoritarianism by the executive.
******
Bush Challenges Hundreds of Laws
By Charlie Savage
The Boston Globe
Sunday 30 April 2006
President cites powers of his office
Washington - 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.
Legal scholars say the scope and aggression of Bush's assertions
that he can bypass laws represent a concerted effort to expand his
power at the expense of Congress, upsetting the balance between the
branches of government. The Constitution is clear in assigning to
Congress the power to write the laws and to the president a duty "to
take care that the laws be faithfully executed." Bush, however, has
repeatedly declared that he does not need to "execute" a law he
believes is unconstitutional.
Former administration officials contend that just because Bush
reserves the right to disobey a law does not mean he is not enforcing
it: In many cases, he is simply asserting his belief that a certain
requirement encroaches on presidential power.
But with the disclosure of Bush's domestic spying program, in which
he ignored a law requiring warrants to tap the phones of Americans,
many legal specialists say Bush is hardly reluctant to bypass laws he
believes he has the constitutional authority to override.
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.
Phillip Cooper, a Portland State University law professor who has
studied the executive power claims Bush made during his first term,
said Bush and his legal team have spent the past five years quietly
working to concentrate ever more governmental power into the White
House.
"There is no question that this administration has been involved in
a very carefully thought-out, systematic process of expanding
presidential power at the expense of the other branches of government,"
Cooper said. "This is really big, very expansive, and very
significant."
For the first five years of Bush's presidency, his legal claims
attracted little attention in Congress or the media. Then, twice in
recent months, Bush drew scrutiny after challenging new laws: a torture
ban and a requirement that he give detailed reports to Congress about
how he is using the Patriot Act.
Bush administration spokesmen declined to make White House or
Justice Department attorneys available to discuss any of Bush's
challenges to the laws he has signed.
Instead, they referred a Globe reporter to their response to
questions about Bush's position that he could ignore provisions of the
Patriot Act. They said at the time that Bush was following a practice
that has "been used for several administrations" and that "the
president will faithfully execute the law in a manner that is
consistent with the Constitution."
But the words "in a manner that is consistent with the
Constitution" are the catch, legal scholars say, because Bush is
according himself the ultimate interpretation of the Constitution. And
he is quietly exercising that authority to a degree that is
unprecedented in US history.
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.
Military Link
Many of the laws Bush said he can bypass - including the torture
ban - involve the military.
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.
On at least four occasions while Bush has been president, Congress
has passed laws forbidding US troops from engaging in combat in
Colombia, where the US military is advising the government in its
struggle against narcotics-funded Marxist rebels.
After signing each bill, Bush declared in his signing statement
that he did not have to obey any of the Colombia restrictions because
he is commander in chief.
Bush has also said he can bypass laws requiring him to tell
Congress before diverting money from an authorized program in order to
start a secret operation, such as the "black sites" where suspected
terrorists are secretly imprisoned.
Congress has also twice passed laws forbidding the military from
using intelligence that was not "lawfully collected," including any
information on Americans that was gathered in violation of the Fourth
Amendment's protections against unreasonable searches.
Congress first passed this provision in August 2004, when Bush's
warrantless domestic spying program was still a secret, and passed it
again after the program's existence was disclosed in December 2005.
On both occasions, Bush declared in signing statements that only
he, as commander in chief, could decide whether such intelligence can
be used by the military.
In October 2004, five months after the Abu Ghraib torture scandal
in Iraq came to light, Congress passed a series of new rules and
regulations for military prisons. Bush signed the provisions into law,
then said he could ignore them all. One provision made clear that
military lawyers can give their commanders independent advice on such
issues as what would constitute torture. But Bush declared that
military lawyers could not contradict his administration's lawyers.
Other provisions required the Pentagon to retrain military prison
guards on the requirements for humane treatment of detainees under the
Geneva Conventions, to perform background checks on civilian
contractors in Iraq, and to ban such contractors from performing
"security, intelligence, law enforcement, and criminal justice
functions." Bush reserved the right to ignore any of the requirements.
The new law also created the position of inspector general for
Iraq. But Bush wrote in his signing statement that the inspector "shall
refrain" from investigating any intelligence or national security
matter, or any crime the Pentagon says it prefers to investigate for
itself.
Bush had placed similar limits on an inspector general position
created by Congress in November 2003 for the initial stage of the US
occupation of Iraq. The earlier law also empowered the inspector to
notify Congress if a US official refused to cooperate. Bush said the
inspector could not give any information to Congress without permission
from the administration.
Oversight Questioned
Many laws Bush has asserted he can bypass involve requirements to
give information about government activity to congressional oversight
committees.
In December 2004, Congress passed an intelligence bill requiring
the Justice Department to tell them how often, and in what situations,
the FBI was using special national security wiretaps on US soil. The
law also required the Justice Department to give oversight committees
copies of administration memos outlining any new interpretations of
domestic-spying laws. And it contained 11 other requirements for
reports about such issues as civil liberties, security clearances,
border security, and counternarcotics efforts.
After signing the bill, Bush issued a signing statement saying he
could withhold all the information sought by Congress.
Likewise, when Congress passed the law creating the Department of
Homeland Security in 2002, it said oversight committees must be given
information about vulnerabilities at chemical plants and the screening
of checked bags at airports.
It also said Congress must be shown unaltered reports about
problems with visa services prepared by a new immigration ombudsman.
Bush asserted the right to withhold the information and alter the
reports.
On several other occasions, Bush contended he could nullify laws
creating "whistle-blower" job protections for federal employees that
would stop any attempt to fire them as punishment for telling a member
of Congress about possible government wrongdoing.
When Congress passed a massive energy package in August, for
example, it strengthened whistle-blower protections for employees at
the Department of Energy and the Nuclear Regulatory Commission.
The provision was included because lawmakers feared that Bush
appointees were intimidating nuclear specialists so they would not
testify about safety issues related to a planned nuclear-waste
repository at Yucca Mountain in Nevada - a facility the administration
supported, but both Republicans and Democrats from Nevada opposed.
When Bush signed the energy bill, he issued a signing statement
declaring that the executive branch could ignore the whistle-blower
protections.
Bush's statement did more than send a threatening message to
federal energy specialists inclined to raise concerns with Congress; it
also raised the possibility that Bush would not feel bound to obey
similar whistle-blower laws that were on the books before he became
president. His domestic spying program, for example, violated a
surveillance law enacted 23 years before he took office.
David Golove, a New York University law professor who specializes
in executive-power issues, said Bush has cast a cloud over "the whole
idea that there is a rule of law," because no one can be certain of
which laws Bush thinks are valid and which he thinks he can ignore.
"Where you have a president who is willing to declare vast
quantities of the legislation that is passed during his term
unconstitutional, it implies that he also thinks a very significant
amount of the other laws that were already on the books before he
became president are also unconstitutional," Golove said.
Defying Supreme Court
Bush has also challenged statutes in which Congress gave certain
executive branch officials the power to act independently of the
president. The Supreme Court has repeatedly endorsed the power of
Congress to make such arrangements. For example, the court has upheld
laws creating special prosecutors free of Justice Department oversight
and insulating the board of the Federal Trade Commission from political
interference.
Nonetheless, Bush has said in his signing statements that the
Constitution lets him control any executive official, no matter what a
statute passed by Congress might say.
In November 2002, for example, Congress, seeking to generate
independent statistics about student performance, passed a law setting
up an educational research institute to conduct studies and publish
reports "without the approval" of the Secretary of Education. Bush,
however, decreed that the institute's director would be "subject to the
supervision and direction of the secretary of education."
Similarly, the Supreme Court has repeatedly upheld
affirmative-action programs, as long as they do not include quotas.
Most recently, in 2003, the court upheld a race-conscious university
admissions program over the strong objections of Bush, who argued that
such programs should be struck down as unconstitutional.
Yet despite the court's rulings, Bush has taken exception at least
nine times to provisions that seek to ensure that minorities are
represented among recipients of government jobs, contracts, and grants.
Each time, he singled out the provisions, declaring that he would
construe them "in a manner consistent with" the Constitution's
guarantee of "equal protection" to all - which some legal scholars say
amounts to an argument that the affirmative-action provisions represent
reverse discrimination against whites.
Golove said that to the extent Bush is interpreting the
Constitution in defiance of the Supreme Court's precedents, he
threatens to "overturn the existing structures of constitutional law."
A president who ignores the court, backed by a Congress that is
unwilling to challenge him, Golove said, can make the Constitution
simply "disappear."
Common Practice in '80s
Though Bush has gone further than any previous president, his
actions are not unprecedented.
Since the early 19th century, American presidents have occasionally
signed a large bill while declaring that they would not enforce a
specific provision they believed was unconstitutional. On rare
occasions, historians say, presidents also issued signing statements
interpreting a law and explaining any concerns about it.
But it was not until the mid-1980s, midway through the tenure of
President Reagan, that it became common for the president to issue
signing statements. The change came about after then-Attorney General
Edwin Meese decided that signing statements could be used to increase
the power of the president.
When interpreting an ambiguous law, courts often look at the
statute's legislative history, debate and testimony, to see what
Congress intended it to mean. Meese realized that recording what the
president thought the law meant in a signing statement might increase a
president's influence over future court rulings.
Under Meese's direction in 1986, a young Justice Department lawyer
named Samuel A. Alito Jr. wrote a strategy memo about signing
statements. It came to light in late 2005, after Bush named Alito to
the Supreme Court.
In the memo, Alito predicted that Congress would resent the
president's attempt to grab some of its power by seizing "the last word
on questions of interpretation." He suggested that Reagan's legal team
should "concentrate on points of true ambiguity, rather than issuing
interpretations that may seem to conflict with those of Congress."
Reagan's successors continued this practice. George H.W. Bush
challenged 232 statutes over four years in office, and Bill Clinton
objected to 140 laws over his eight years, according to Kelley, the
Miami University of Ohio professor.
Many of the challenges involved longstanding legal ambiguities and
points of conflict between the president and Congress.
Throughout the past two decades, for example, each president -
including the current one - has objected to provisions requiring him to
get permission from a congressional committee before taking action. The
Supreme Court made clear in 1983 that only the full Congress can direct
the executive branch to do things, but lawmakers have continued writing
laws giving congressional committees such a role.
Still, Reagan, George H.W. Bush, and Clinton used the presidential
veto instead of the signing statement if they had a serious problem
with a bill, giving Congress a chance to override their decisions.
But the current President Bush has abandoned the veto entirely, as
well as any semblance of the political caution that Alito counseled
back in 1986. In just five years, Bush has challenged more than 750 new
laws, by far a record for any president, while becoming the first
president since Thomas Jefferson to stay so long in office without
issuing a veto.
"What we haven't seen until this administration is the sheer number
of objections that are being raised on every bill passed through the
White House," said Kelley, who has studied presidential signing
statements through history. "That is what is staggering. The numbers
are well out of the norm from any previous administration."
Exaggerated Fears?
Some administration defenders say that concerns about Bush's
signing statements are overblown. Bush's signing statements, they say,
should be seen as little more than political chest-thumping by
administration lawyers who are dedicated to protecting presidential
prerogatives.
Defenders say the fact that Bush is reserving the right to disobey
the laws does not necessarily mean he has gone on to disobey them.
Indeed, in some cases, the administration has ended up following
laws that Bush said he could bypass. For example, citing his power to
"withhold information" in September 2002, Bush declared that he could
ignore a law requiring the State Department to list the number of
overseas deaths of US citizens in foreign countries. Nevertheless, the
department has still put the list on its website.
Jack Goldsmith, a Harvard Law School professor who until last year
oversaw the Justice Department's Office of Legal Counsel for the
administration, said the statements do not change the law; they just
let people know how the president is interpreting it.
"Nobody reads them," said Goldsmith. "They have no significance.
Nothing in the world changes by the publication of a signing statement.
The statements merely serve as public notice about how the
administration is interpreting the law. Criticism of this practice is
surprising, since the usual complaint is that the administration is too
secretive in its legal interpretations."
But Cooper, the Portland State University professor who has studied
Bush's first-term signing statements, said the documents are being read
closely by one key group of people: the bureaucrats who are charged
with implementing new laws.
Lower-level officials will follow the president's instructions even
when his understanding of a law conflicts with the clear intent of
Congress, crafting policies that may endure long after Bush leaves
office, Cooper said.
"Years down the road, people will not understand why the policy
doesn't look like the legislation," he said.
And in many cases, critics contend, there is no way to know whether
the administration is violating laws - or merely preserving the right
to do so.
Many of the laws Bush has challenged involve national security,
where it is almost impossible to verify what the government is doing.
And since the disclosure of Bush's domestic spying program, many people
have expressed alarm about his sweeping claims of the authority to
violate laws.
In January, after the Globe first wrote about Bush's contention
that he could disobey the torture ban, three Republicans who were the
bill's principal sponsors in the Senate - John McCain of Arizona, John
W. Warner of Virginia, and Lindsey O. Graham of South Carolina - all
publicly rebuked the president.
"We believe the president understands Congress's intent in passing,
by very large majorities, legislation governing the treatment of
detainees," McCain and Warner said in a joint statement. "The Congress
declined when asked by administration officials to include a
presidential waiver of the restrictions included in our legislation."
Added Graham: "I do not believe that any political figure in the
country has the ability to set aside any ... law of armed conflict that
we have adopted or treaties that we have ratified."
And in March, when the Globe first wrote about Bush's contention
that he could ignore the oversight provisions of the Patriot Act,
several Democrats lodged complaints.
Senator Patrick J. Leahy of Vermont, the ranking Democrat on the
Senate Judiciary Committee, accused Bush of trying to "cherry-pick the
laws he decides he wants to follow."
And Representatives Jane Harman of California and John Conyers Jr.
of Michigan - the ranking Democrats on the House Intelligence and
Judiciary committees, respectively - sent a letter to Attorney General
Alberto R. Gonzales demanding that Bush rescind his claim and abide by
the law.
"Many members who supported the final law did so based upon the
guarantee of additional reporting and oversight," they wrote. "The
administration cannot, after the fact, unilaterally repeal provisions
of the law implementing such oversight.... Once the president signs a
bill, he and all of us are bound by it."
Lack of Court Review
Such political fallout from Congress is likely to be the only check
on Bush's claims, legal specialists said.
The courts have little chance of reviewing Bush's assertions,
especially in the secret realm of national security matters.
"There can't be judicial review if nobody knows about it," said
Neil Kinkopf, a Georgia State law professor who was a Justice
Department official in the Clinton administration. "And if they avoid
judicial review, they avoid having their constitutional theories
rebuked."
Without court involvement, only Congress can check a president who
goes too far. But Bush's fellow Republicans control both chambers, and
they have shown limited interest in launching the kind of oversight
that could damage their party.
"The president is daring Congress to act against his positions, and
they're not taking action because they don't want to appear to be too
critical of the president, given that their own fortunes are tied to
his because they are all Republicans," said Jack Beermann, a Boston
University law professor. "Oversight gets much reduced in a situation
where the president and Congress are controlled by the same party."
Said Golove, the New York University law professor: "Bush has
essentially said that 'We're the executive branch and we're going to
carry this law out as we please, and if Congress wants to impeach us,
go ahead and try it.' "
Bruce Fein, a deputy attorney general in the Reagan administration,
said the American system of government relies upon the leaders of each
branch "to exercise some self-restraint." But Bush has declared himself
the sole judge of his own powers, he said, and then ruled for himself
every time.
"This is an attempt by the president to have the final word on his
own constitutional powers, which eliminates the checks and balances
that keep the country a democracy," Fein said. "There is no way for an
independent judiciary to check his assertions of power, and Congress
isn't doing it, either. So this is moving us toward an unlimited
executive power."
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