Wednesday, June 28, 2006

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.


At 4:56 AM, Blogger R. Paul Wiegand said...

Good to see you blogging again.

I agree that the fault here is predominantly in the legislature; however, I think a fair amount of attention should be focused squarely on the American people. The media has covered these statements only in the most cursory way, and I've found that many people are either simply unaware of the issue or unaware of the scape of these statements -- even those reasonably well informed.

If the American people aren't worried about it, then congress wont be.

I have to admit that I went from being irritated and unhappy with the situation to outright shocked when I actually read about some of the statements. For all the media's bean counting (350 statements signed by Presidents prior Mr. Bush, 750 by this President), I was ill-prepared for their bluntness.

What I think Americans don't understand is that the President is not clarifying ambiguities here (as other Presidents have used these statements to do), he is essentially re-writing the law when it gets to his desk. If a President is really permitted to do this, we have a serious problem on our hands. These aren't just line-item strikes of law, but in some cases the statements reverse law ... and in several cases, the statements speak directly to wider questions about Presidential authority versus that of congress, and even the judiciary ... issues that are the purview of the constitution itself.

There's simply no reasonable argument that such statements have any legal meaning. Nevertheless, it's clear that the administration will conduct itself under the revised law, not the law itself. In so doing, as our constitution and laws currently stand, the President will violate US law (and probably already has). Impeachment is the appropriate thing to consider in such a case. But I think the more systemic problem, though, is that the American people don't seem to care.

I'd like to see a poll on the matter, but I've yet to see a serious source take up that question. Anyone know of one?

I'll be honest: This is among the most frightening developments I've seen from our government in quite some time. That the President may have the power to directly and completely reshape legislation, and that the American people seem only mildly interested in this is simply astounding. This goes well beyond the issues of partisan politics or national security and hits squarely at our constitutional identity.

Independent of who the President is, or whether one is a Democrat or a Republican: The basic question is one of powers and the limitation of those powers. How much legislative authority do Americans believe the President of the United States should have? I thought the question was more or less clearly answered by the constitution, but a document has only the validity the people who abide by it bestow on it.

At 10:15 AM, Blogger mooglar said...

You are correct, sir. Though the Congress should, of course, uphold its constitutional duties regardless. But the people must take a large degree of responsibility for the current state of affairs.


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