If All You Have is a Hammer...

In case you hadn't heard, Bush has been using something called 'Presidential Signing Statements' as part of his war on the constitution and its system of checks and balances. He has been appending statements to bills he signs in which he says that he isn't going to enforce some of their provisions on the grounds that they violate executive power. That is to say, he has been exercising a very quiet line-item veto, something that isn't allowed for in the constitution and has been explicitly ruled unconstitutional by a Federal court:

"The United States Court of Appeals for the Ninth Circuit in Lear Siegler v. Lehman, 842 F.2d 1102 (1988) explained: 'Art. I, section 7 is explicit that the President must either sign or veto a bill presented to him. Once signed by the President,...the bill becomes part of the law of the land and the President must "take care that [it] be faithfully executed." Art. I, section 7 does not empower the President to employ a so-called 'line item veto' and excise or sever provisions of a bill with which he disagrees. The only constitutionally prescribed means for the President to effectuate his objections to a bill is to veto it and state those objections upon returning the bill to Congress. The 'line item veto' does not exist in the federal Constitution, and the executive branch cannot bring a de facto 'line item veto' into existence by promulgating orders to suspend parts of statutes which the President has signed into law.'"

Arlen Specter has been holding hearings about Bush's use of these Signing Statements. Conservative legal scholar Bruce Fein, testifying at the hearing, proposed as a remedy to Bush's use of these statements as de facto line-item veto that Congress to pass a bill giving legislators standing to sue the President in court for failing to enforce provisions of legislation the President has signed. At first, I thought this was a good idea. But, as a poster over at Dispatches from the Culture Wars notes:

"The second part of Fein's suggestion (suing the president over the signing order) would be a potential way to get past the presidential blockade of the new law, but that would put the decision in the hands of the courts. The ability to override the veto is a power that Congress has.

So, Fein's suggestion would give the president a new veto-like power, but the ability to override the new power would not reside with Congress."

Which is correct. And it occurred to me that the constitution already provides Congress a power to deal with the situation where the Chief Executive refuses to carry out his or her constitutionally-mandated duties: impeachment. Unfortunately, given Congress' continuing failure to use its powers to act as a check and a balance to executive authority*, there is no chance whatsoever that Congress will impeach Bush for failing to carry out his constitutional duties.

Fein is, basically, suggesting that, since Congress has utterly failed to use its own constitutional powers to check the powers of the President, it give itself the power to run to the Judicial branch to force the Judiciary to act as the check. But, what I think even Fein himself may not realize, is that this suggestion is an indictment of Congress, not the President, and is evidence that the problem here is more with the legislative branch than the executive. Because, while we're all focused on Bush and his misuse of power and trying to figure out what should be done about it, it is the failures of Congress that have allowed him to do it.

Chief Executives, be they of nations of corporations, always seek greater power. With or without Bush, sooner or later a President would have come along who tried to give himself a line-item veto power through these signing statements. That's the nature of things. Focusing on Bush and his lust for greater power makes it seem that the cancer is in the White House. For once, it's not.

The cancer is in a legislature that, by failing to carry out its own constitutional duty to act as a check on executive power, has fostered an environment where the President knows he can create new powers for himself with impunity. They say that, "When all you have is a hammer, everything looks like a nail." But, if you're like Congress, and you're afraid to use the hammer, it seems that instead nothing looks like a nail.

*For instance, Congress has completely given up its sole power to declare war by allowing the President to engage in wars without its consent, by calling them "police actions" and other such nonsense, and, more egregiously, by outright abrogating that power to the President before the invasion of Iraq.