MyDD :: Bush Continues to Push Bounds of Executive Power

Bush Continues to Push Bounds of Executive Power

by Jonathan Singer, Sun Apr 30, 2006 at 05:25:31 PM EST

In today's issue of The Boston Globe, Charlie Savage pens an extremely interesting and important article examining the efforts of President Bush to assert the power to subvert acts of Congress at will.

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.

As if we needed any more reason to get out and vote in this year's midterm elections, the Savage piece raises yet another strong case for why the Republican leadership of Washington must be thrown out in November.

At a time when George W. Bush is amassing power's greater than that of any previous President -- effectively unlimited powers, in some cases listed in the story -- the Republican Congress has shown zero willingness to fulfill their constitutional role as a check on the power of the executive. Matt did a great job of highlighting this fact by giving Congressional Republicans hundreds of rubber stamps earlier this month.

And while it is bad enough when Congressmen toe the line of the administration -- parroting talking points from the White House and carrying water on legislation rather than actually legislating themselves -- by handing power to ignore laws over to the President, the Republican Congress is grossly negligent.

Admittedly, this is an argument that might be too complex to boil down to a 30-second ad -- at least without sounding shrill in the process. Nevertheless, it's clear that the actions, or inaction, of the Republican Congress is hurting America.

We need the subpoena power. And I don't mean we, as Democrats. I mean we as Americans. We need to make sure that our government is not undertaking nefarious activities in our name -- that is our responsibility. And given the fact that the Republican Congress appears to be wholly unwilling to fulfill its constitutional duties, we must do everything we can to ensure that there is Democratic leadership over the 110th Congress.

Tags: George W. Bush (all tags)

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Re: Bush Continues to Push Bounds of Executive Pow (none / 0)

Anyone in the press is welcome to be appalled, but they are not entitled to be surprised.

Way back in 2000, during the election theft, I had numerous party hacks tell ,on fora like Salon's TableTalk, that the very willingness of the Bush junta to seize power was a sign and guarantee of their superior fitness to govern.

'If you don't want it bad enough to steal it, you don't deserve it' was the argument then -- sometimes shortened down to 'Democracy is for pussies'.

That's fascism, and that was over five years ago...

by Davis X Machina on Sun Apr 30, 2006 at 05:48:48 PM EST

Not Too Complex (none / 0)

Admittedly, this is an argument that might be too complex to boil down to a 30-second ad -- at least without sounding shrill in the process. Nevertheless, it's clear that the actions, or inaction, of the Republican Congress is hurting America.

Shot of Bush look-alike at dias, in front of small crowd. Two figures have signs on their backs: "Senator Yessir!" and "Senator Rubberstamp."

Angle on Bush look-alike with hand raised, intoning, "I will not torture."

Close up of hand shows fingers crossed.

Bush look-alike's face leans into frame and winks.

Angle on senators Yessir! and Rubberstamp. They turn to each other, raise their hands with fingers crossed, and wink at each other.

That's 10 seconds. 15 max. I'm sure you can think of a jillion ways to fill out the rest of the half-minute. Just real simple things like:

"Stamp out the rubber-stamp Congress. Put real accountability back in Washgington. Vote Jane Doe for Congress."

"Keep it simple, stupid!" right?

by Paul Rosenberg on Sun Apr 30, 2006 at 06:16:00 PM EST

Re: Bush Continues to Push Bounds of Executive Pow (none / 0)

The Globe piece says:

The courts have little chance of reviewing Bush's assertions, especially in the secret realm of national security matters.

But Bush has been spraying these signing statements all around: I wonder that enterprising lawyers haven't managed to shape a case for judicial review that comes within the requirements of standing, political question, etc, and outside the area of national security.

In particular, why Dem MCs haven't got such a case going.

On a more partisan note: I'd keep open the question of how aggressively the Dems (assuming they win) should pursue investigations of the Bush regime - and what proportion of Capitol time they should devote to them. (As opposed to policy matters, say.)

Battered as it is, I can't see the regime doing other than dig in its heels, and run down the clock with legal argy-bargy; and GOP MCs aren't going to stand idly by. (Or, if they do, take that as a sign that the Dem millennium is at hand!)

One other thing to consider: assuming the Dems win in November, come 08, the American voter may find he likes the idea of divided government again. But wants to flip things to put Hillary in the White House (cheer, boys, cheer!) and kick Congress back to the GOP.

Any precedents on aggressively investigating executive activity set in the 110th would certainly be pounced on by a GOP-led 111th.

[Technical note: the idea that the Executive Branch is its own interpreter of the laws is not entirely made of whole cloth. The Chevron Doctrine is a version of the same contention.

Not anything like endorsing the Bush line, so far as I appreciate it. But a little SCOTUS support can go a long way with a creative lawyer!

Just like Truman's Loyalty Program clothed Red Scare-men in general with a little of the dignity and authority of his office.]

by skeptic06 on Sun Apr 30, 2006 at 07:01:20 PM EST

Re: Bush Continues to Push Bounds of Executive Pow (none / 0)

I wonder that enterprising lawyers haven't managed to shape a case for judicial review that comes within the requirements of standing, political question, etc, and outside the area of national security.

You have to find a situation where someone is damaged by something the president does or fails to do and bring an action which will survive all sorts of motions to dismiss and finally back the president into a position where there is nothing to do but to assert that the law is unconstitutional as applied to him.

Then you have to get a trial court to rule against that claim, get the president to appeal, and lose the point on appeal. It is not at all surprising that not of this has happened yet. I don't think it is likely to happen anytime soon.

It is easy for Whitehouse lawyers to make all sorts of claims that they are rather sure they will never have to test in any court.

The Chevron Doctrine

A two-part analysis was born from the Chevron decision (called the "Chevron two-step"), where a reviewing court determines (1) whether a statute permits or forbids an agency's interpretation, and (2) if a statute is not clear on step (1), the court decides whether the agency's interpretation of a statute is reasonable or permissible.

Not anything like endorsing the Bush line, so far as I appreciate it. But a little SCOTUS support can go a long way with a creative lawyer!

Right before they argued that the act was unconstitutional as applied to the president they would argue that since the law did not specifically state that the President had to follow it even if he really, really, didn't want to, therefore it was "ambiguous" as to whether the president could interpret it as not applying to him. So on to step 2 and the question becomes is it reasonable for the president to assume that congress did not intend the law to apply to him. Then court can grant 'deference' to the president on this without every going to the core question of whether congress could bind the president if they just made their intent really, really clear.

by Fred in Vermont on Sun Apr 30, 2006 at 07:55:46 PM EST
[ Parent ]

Re: Bush Continues to Push Bounds of Executive Pow (none / 0)

Can't Congress (a demcratic one, or at least one in opposition to the president's power grab) sue the president over the constitutionality of his signing statements exempting him from the law? Isn't the President required to carry out the law, even if he thinks it's unconstitutional, untill the Supremem Court decides it is? I totaly get that a president might chose not enforce laws as he saw fit...but failing to act is bit different than acting.

by David in Burbank on Sun Apr 30, 2006 at 11:02:04 PM EST
[ Parent ]

Bush is just making arguments (none / 0)

Admittedly, this is an argument that might be too complex to boil down to a 30-second ad -- at least without sounding shrill in the process.

Right. I think you would need a few long footnotes to explain exactly who might have standing to litigate a "claim" of the president that he did not have to recognize laws where he though they were unconstitutional.

The article is full of stuff about what Bush lawyers 'claim' are his rights as president, but I didn't find any real cases or controversies that could be tested in court. I don't think it makes sense to assert that Bush is ignoring all these laws. He seems to just be saying that his lawyers have written up a brief that would defend his right to do so if he choose to.

But the president has not expanded his powers at the expense of congress until he can get an opinion from a court that agrees that it would be unconstitutional to make the president respect that law. So all we are seeing is some posturing by right wing lawyers trying to get the attention of those who select judges.

by Fred in Vermont on Sun Apr 30, 2006 at 07:27:48 PM EST

30 second ad (none / 0)

What about using the Schoolhouse Rock bit Three Ringed Government? Seems like someone could modify it to show how this is not what our founders intended. It might not be good for TV, but if it was done well I bet it would fly around the internet....

I wish I had the kind of skills it would take to pull it off. Someday maybe....

by paida on Sun Apr 30, 2006 at 08:19:23 PM EST

Re: Bush Continues to Push Bounds (none / 0)

Unfortunately, this administration is in the habit of wholesale power grabbing whereby they change the rules first and then present the argument to provide the authority for the already existing outcome. When opponents of this administration assert that this backdoor approach is a pattern and practice, in light of numerous examples, it becomes increasingly difficult to ignore their argument. With this constant chiseling away at the delicate yet deliberate balance intended by the founders of our governmental system, one is left in doubt as to either the degree of Constitutional understanding or its disregard driven by the desire to dictate predetermined deviations.

The rationale for any necessary expansion of executive authority is undermined by the means by which this administration proceeds to obtain it. Such practice has the potential to make all future exchanges between the Congress and the President rife with skepticism. For these reasons, this is a failed policy strategy wholly entrenched in the Bush style of act first, defend vigorously, discuss when forced, and lastly compromise and co-opt the solution when defeated. For a President who fashioned himself as a protégé of Ronald Reagan, he has ironically become the purveyor of policies that Ronald Reagan characterized as requiring a strategy of `trust but verify'. Sadly, the cold war that pitted America against the Soviet Union has been replaced by an increasingly divisive internal cold war. History will ultimately determine if the America envisioned by our forefathers prevailed.