Bush The (Dictator) Decider
[Update at the end]
Possibly the greatest long term threat to the Republic has been the continued accumulation of power by the unitary president. It's clear that the Bush administration sees the role of Congress and the Courts to be little more than cheerleaders of his policies and mechanisms to punish foes. One of the methods used to accumulate power and make the legislative branch irrelevant has been signing statements. Although reported on extensively, their use has not abated.
The Boston Globe reports on a study by the Congressional Research Service
In a 27-page report written for lawmakers, the research service said the Bush administration is using signing statements as a means to slowly condition Congress into accepting the White House's broad conception of presidential power, which includes a presidential right to ignore laws he believes are unconstitutional. The ``broad and persistent nature of the claims of executive authority forwarded by President Bush appear designed to inure Congress, as well as others, to the belief that the president in fact possesses expansive and exclusive powers upon which the other branches may not intrude," the report said.
Last week Bush used a signing statement challenging 16 provisions of the military budget bill. For example he challenged this part of the bill:
The bill bars the Pentagon from using any intelligence that was collected illegally, including information about Americans that was gathered in violation of the Fourth Amendment's protections against unreasonable government surveillance.
Of course The Decider suggested that he alone could decided whether such information could be used.
His signing statement instructed the military to view the law in light of ``the president's constitutional authority as commander in chief, including for the conduct of intelligence operations, and to supervise the unitary executive branch."
Bush also challenged three sections that require the Pentagon to notify Congress before diverting funds to new purposes, including top-secret activities or programs. Congress had already decided against funding. Bush said he was not bound to obey such statutes if he decided, as commander in chief, that withholding such information from Congress was necessary to protect security secrets
Additionally, Bush used a signing statement on the homeland security bill he signed on Wednesday. He challenged a portion of the law that would have placed qualifications on the head of FEMA.
The law says the president must nominate a candidate who has ``a demonstrated ability in and knowledge of emergency management" and ``not less than five years of executive leadership."
Nope, won't do. Only the Decider gets to choose which crony gets the job.
But Bush's signing statement challenged at least three-dozen laws specified in the bill. Among those he targeted is a provision that empowers the FEMA director to tell Congress about the nation's emergency management needs without White House permission. This law, Bush said, ``purports . . . to limit supervision of an executive branch official in the provision of advice to the Congress." Despite the law, he said, the FEMA director would be required to get clearance from the White House before telling lawmakers anything.
That quaint concept of checks and balances is no more. Time to rewrite the history books. The drive to Authoritarian rule continues.
For a lawyer's view one can start at Jack Balkin's blog
He notes that Bush has used signing statements an astonishing 750 times (as of May 2006). He notes some of the effects:
One effect of this policy, as I've described here, is that the President may be directing his subordinates to refuse to enforce a wide variety of federal laws in secret, with little or no public accountability, and with no effective way for the courts or Congress to hold him to his duties to enforce the law and "take care that the laws be faithfully executed" under the Constitution.
A second important effect of Bush's policy is that he doesn't have to take the political heat for vetoing statutes that he believes are unconstitutional or unconstitutionally overbroad. Indeed, he has not yet vetoed a single bill sent to him by Congress.
Here Prof. Balkin gets to the bottom line
One suspects that the President is primarily interested in escaping accountability for executive actions rather than having courts determine the constitutionality of provisions the President objects to; this is especially the case in the area of foreign relations, prisoner detention and prisoner interrogation. The Bush Administration didn't want Congress regulating how the it treated prisoners, regarding any such interventions as unconstitutional; at the same time, it didn't want the courts deciding the question of constitutionality either. It simply wanted to be free of legal obligations or responsibilities in this area other than those that it choose for itself.
For a detailed opinion on the signing statements try:
Untangling the Debate on Signing Statements
The final, and most important, problem with the practice in this Administration, as we emphasized above, is not the signing statements themselves, nor the simple fact that the President might be engaged in nonenforcement, but instead the substance of many of the Administration's constitutional objections: e.g., the extremely broad theories of the Commander-in-Chief Clause and the "unitary executive" that underlie many of the signing statements and other distorted statutory constructions. If those constitutional objections were well-taken, and were publicly disclosed and debated, the signing statements themselves would present far fewer problems. But many of us believe that the Administration is wrong on the merits; and it is that substantive concern, along with the concerns about the lack of transparency and about the use of nonenforcement as a tactic of first resort, that should be at the heart of this debate.