Bush using a little-noticed strategy to
alter the balance of power
Real Cities/Knight Ridder Newspapers
By Ron Hutcheson and James Kuhnhenn
Knight Ridder Newspapers
January 6, 2006
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."
The White House says its authority stems from the Constitution, but
dissenters say that view ignores the Constitution's careful balance of powers
between branches of government.
"We know the textbook story of how government works. Essentially what this
has done is attempt to upset that," said Christopher Kelley, a presidential
scholar at Miami University in Oxford, Ohio, who generally shares Bush's
expansive view of executive authority. "These are directives to executive
branch agencies saying that whenever something requires interpretation, you
should interpret it the way the president wants you to."
Other presidents have used similar tactics. For example, Jimmy Carter
rebuffed congressional efforts to block his amnesty program for Vietnam-era
draft dodgers. But experts say Bush has taken claims of presidential power to a
whole new level.
In the case of the torture ban, Bush said he would interpret the law "in a
manner consistent with the constitutional authority of the president," with the
goal of "protecting the American people from further terrorist attacks."
Because Bush has already claimed broad powers in the war on terror -
including the right to bypass existing laws restricting domestic surveillance -
legal experts and some members of Congress interpreted the statement to mean
that he would ignore the torture ban if he felt it would harm national
security.
Opponents of the ban say torture should not be ruled out in a case where
abusive interrogation might prevent an imminent terrorist attack.
White House spokeswoman Dana Perino said Bush was defending a principle, not
signaling his intention to ignore the torture prohibition.
"The president has said that we follow the law. Of course we will follow
this law as well," she said.
Some members of Congress aren't so sure.
"He issues a signing statement that says he retains all of the inherent
power that will permit him to go out and torture just the way they've gone
ahead and tortured before," said Sen. Edward Kennedy, D-Mass. "That process is
an arrogance of power."
Congress has clashed with Bush over signing statements before. In 2002,
lawmakers from both parties vigorously objected when Bush offered a narrow
interpretation of whistleblower protections in legislation on corporate fraud.
After a series of angry letters from Congress to the White House, the
administration backed down.
But monitoring the implementation of new laws is a complicated task,
especially when Bush is ambiguous about his intentions. Cooper said Bush's
assertion of his constitutional authority in dealing with the torture ban is
typical of his approach.
"It doesn't explicitly say what he's going to do or not do, but it gives him
the authority to do whatever he wants to do," Cooper said. "The administration
has clearly concluded that the Republican-dominated Congress is not prepared to
force a confrontation on a lot of these issues."
The roots of Bush's approach go back to the Ford administration, when Dick
Cheney, then serving as White House chief of staff, chafed at legislative
limits placed on the executive branch in the aftermath of the Watergate scandal
and other abuses of power by President Nixon. Now the vice president and his
top aide, David Addington, are taking the lead in trying to tip the balance of
power away from Congress and back to the president.
They may soon have an ally on the Supreme Court. As a Justice Department
lawyer in the Reagan administration, Supreme Court nominee Samuel Alito wrote a
1986 memo outlining plans for expanded use of presidential signing
statements.
Although Alito told his bosses that the aggressive use of assertive signing
statements "would increase the power of the executive to shape the law," he
acknowledged doubts about their legal significance.
Reagan adopted the strategy and used signing statements to challenge 71
legislative provisions, according to Kelley's tally. President George H.W. Bush
challenged 146 laws; President Clinton challenged 105. The current president
has lodged more than 500 challenges so far.
Bush and his legal advisers offer a variety of arguments to support their
claims to power. In their view, the Constitution's directive that "the
president shall be commander in chief" gives Bush virtually unlimited authority
on issues related to national security.
They also rely heavily on the "unitary executive" theory to resist
congressional directives to federal agencies. The theory rests on the
Constitution's clause that says that "executive power shall be vested in a
president."
Bush has cited the theory, which has not been fully tested in court, more
than 100 times in his signing statements.
Skeptics say the president and his advisers overlook the Constitution's
checks and balances, noting that the Framers had a deep distrust of excessive
executive power, having rebelled against a king. The Constitution gives
Congress the power to declare war, and shared power over executive spending,
for example.
Lawmakers from both parties have questioned Bush's assertion of his wartime
authority.
"If you take this to its logical conclusion, because during war the
commander in chief has an obligation to protect us, any statute on the books
could be summarily waived," said Sen. Lindsey Graham, R-S.C.
"The Constitution says that if the president doesn't like it (a bill), he
can veto it. And we have an opportunity to override the veto," Kennedy
noted.
Some members of Congress from both parties also question the legal authority
of presidential signing statements.
"He can say whatever he likes, I don't know if that has a whole lot of
impact on the statute. Statutes are traditionally a matter of congressional
intent," said Sen. Arlen Specter, R-Pa., the chairman of the Senate Judiciary
Committee.
In 2003, lawmakers tried to get a handle on Bush's use of signing statements
by passing a Justice Department spending bill that required the department to
inform Congress whenever the administration decided to ignore a legislative
provision on constitutional grounds.
Bush signed the bill, but issued a statement asserting his right to ignore
the notification requirement.
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