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Bush
Challenges Hundreds of Laws
President cites powers of his office
By Charlie Savage, Globe Staff (April
30, 2006)
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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