Above The Law

If you read nothing else this Sunday, or this week, I hope you read this article by Charlie Savage in the Boston Globe.

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. ...

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.

If this were really a principled dispute about the meaning of the Constitution, an honest President would be open about his positions, and air his position publicly, so that the Congress, the Courts, and most importantly, the People, could respond. Is that what is happening?

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.

Alert readers have heard about some of these before, but Savage details other frightening examples.

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.

Silly me. I would have figured that Congess having the power to declare war would have meant they could say where and where not troops could engage n combat. Well, I guess Congress still has the "power of the purse", and, by controlling where money gets spent and on what, can assert its will.

Or maybe not.

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.

It seems odd that Congress would have to pass a law against diverting money from one program into another in the first place, doesn't it? Isn't that what the whole Congressional budget authority is about, allocating monies here and there and not somewhere else? That Congress felt it had to remind the President of this fundamental Constitutional principle is sad, that it had to more than once is even sadder. That the President claims the power to ignore it anyway is simply frightening. And infuriating.

There is much more in the article. I'm going to stop blogging about it before I burst a blood vessel. Please, go read the whole article. (I'm breaking with my normal policy and also including a link to the ad-free printer-friendly version, since the Globe's website is extra-annoying with its ads.)

Of all the tragic legacies of the Bush administration, perhaps the one that most threatens our nation is its radical, and secretive, "reinterpretation" of the Constitution, in support of Presidential power. It is not merely that their readings of the document and of historical precedent are flawed and intellectually dishonest, it is that they are consistently making them in secret, or as quietly as possible.

If they truly believed in the legitimacy of their position, and were really trying to do what is right for our nation and our democracy, why are they doing it under the table? Why be so sneaky? We've heard more about Mars missions and switchgrass than about their consistent campaign to broaden the powers of the Executive. Shouldn't we have had some announcement of this broad policy objective in front of a blue backdrop with "Executive Authority" emblazoned upon it?

I hope the Boston Globe's coverage is another example of the mainstream media catching up to an issue that has been in the blogs for some time. The best web source for writing on the subject is Glenn Greenwald. Glenn has a soon-to-be-released book, entitled How Would A Patriot Act?, which I hope will get a wide reading.

(Maybe, if we all start talking about our 'President run amok', people might vote about that in November, instead of something like whether the National Anthem in Spanish should be legal.)