Sunday, May 14, 2006

Congress and the no-veto President

When the President declares he doesn't have to obey the laws he chooses to ignore, he doesn't need to veto any.  At least that's been the Bush administration's practice so far.  The advocates of this electoral-dictatorship theory of government call it the "unitary Executive theory".  Al Gore suggests that a better name would be the "unilateral Executive theory", which makes sense to me.

The St. Petersburg Times addresses this in their editorial Bush leading assault on Congress' powers 05/14/06:

But nothing demonstrates Bush's contempt for our system of checks and balances more than his unprecedented use of presidential signing statements. Thanks to a Boston Globe report, we know that Bush has been quietly rewriting laws right after he signs them. The Globe counted 750 different laws that the president signed and then declared in his signing statement that he will not enforce as written or will interpret differently.

Perhaps the best known example is the way Bush nullified the antitorture amendment that had been championed by Sen. John McCain, R-Ariz. After weeks of negotiations, McCain stood firm against any exceptions to an outright ban on the cruel treatment of prisoners at U.S. hands. The White House finally capitulated when it appeared there were enough lawmakers to override a presidential veto. But after signing the bill, Bush authored a signing statement that said he would interpret the law in accordance with his powers as commander in chief. In other words, he would ignore the ban when it suited him.

Nowhere in the Constitution is the signing statement mentioned. Nowhere is the president given the authority to cherry pick parts of the laws he signs that he will not enforce. In fact, the Constitution unambiguously directs the president to "take care that the laws be faithfully executed."

The president has a viable option if he doesn't like a law passed by Congress. He can veto it, something Bush has yet to do. Congress then may override the veto by a two-thirds vote. But rather than bother with the procedure laid down in the Constitution, Bush has simply been declaring bothersome aspects of laws null and void. (my emphasis)

I just came across an appropriate statement of the need for Congressional checks and balances on a renegade Executive Branch that applies to today's situation very well.  It's from Daniel Webster in 1934, one of the most influential conservatives in the US in the early 19th century:

The first object of a free people is the preservation of their liberty; and liberty is only to be preserved by maintaining constitutional restraints and just divisions of political power. Nothing is more deceptive or more dangerous than the pretence of a desire to simplify government. The simplest governments are despotisms; the next simplest, limited monarchies; but all republics, all governments of law, must impose numerous limitations and qualifications of authority and give many positive and many qualified rights. In other words, they must be subject to rule and regulation. This is the very essence of free political institutions. The spirit of liberty is, indeed, a bold and fearless spirit, but it is also a sharp-sighted spirit. ... It demands checks; it seeks for guards; it insists on securities; it entrenches itself behind strong defences, and fortifies itself with all possible care againt the assaults of ambition and passion. . . . This is the nature of constitutional liberty; and this is our liberty, if we will rightly understand and preserve it.  (my emphasis; quoted in Edward Corwin, Total War and the Constitution [1947]).

Okay, the Webster quote is presumably from one of his attempts to block the programs of President Andrew Jackson, acting on most likely doing so on behalf of the vested monetary interests that Webster so faithfully represented.  So it probably applies much more appropriately to today than to his own time.

The Times editorial concludes with a good observation but careless terminology:

Unless Congress stands up to this assault on its lawmaking power - something this Republican-controlled Congress has refused to do - Bush will get away with rewriting the nation's laws to suit his purposes. The American system is designed to keep each branch of government in check. But it also relies on the good faith and integrity of officials to respect the constitutional boundaries of their offices. Bush's presidency is becoming unmoored from our laws and the Constitution. If Congress decides to reassert its powers, the country could be heading for a constitutional crisis.  (my emphasis)

The terminology problem is that Bush's unilateral Executive approach, combined with specific violations of the law like the pre-war deceptions over the Iraq War and the systematic practice of torture on prisoners of war and terrorism suspects, have already created a Constitutional crisis, and one that has been going on for years.

If Congress begins to fulfill its Constitutional responsibilities and starts fighting Bush's violations of the law, it will certainly create a political crisis, and one that's unavoidable if Bush's electoral-dictatorship approach to Presidential power is to be stopped.  A Constitutional crisis we already have.


fdtate714 said...

This whole signing statement thing is just beyond me.  I'm not only wondering what happened to checks and balances in this country, but I'm wondering what happened to the Repub Congress that was ready to investigate Clinton for EVERYTHING -- even how much money they were spending on the dog.

bmiller224 said...

The Republicans have become an authoritarian, religious party.  And they are effectively operating on the principle that it's the Party, not the Constitution that should determine how things are run.

With a Republican President in office, they claim the power for him to override the law as he chooses.  With a Democratic President in office, one who presumably would not recognize an elected-dictatorship kind of approach to Executive power, the Republicans would not hesitate to try to use the law against the Democratic President.  It would be something along the lines of what they tried to do to Bill Clinton, only much more drastic.

sanforized6 said...

Only three more years, if we are allowed to have an election. Maybe he'll change that law also!! Or, just pass the tiara to bro Jeb, fixing the votes as needed along the way. rich