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Bush leading assault on Congress' powers

The president's use of signing statements, which declare that he will not enforce laws passed by Congress as written, subverts the separation of powers. Lawmakers should stand up to this infringement.

By Times editorial
Published May 14, 2006

Anyone who has followed President Bush's assertion of expansive executive power should be concerned. Under Bush's theory of presidential authority, during wartime he can ignore duly enacted laws, the Bill of Rights, the courts and Congress if they impinge on his view of presidential prerogatives.

The result has been the warrantless wiretapping of Americans and the collection of their phone records; prisoners being designated "enemy combatants" and held indefinitely at the president's whim; the use of extraordinary rendition to send prisoners to other nations to be tortured; and the establishment of secret CIA prisons -- all actions proscribed by law, by ratified treaty or by the Constitution.

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.

For example, in the aftermath of Abu Ghraib, Congress passed new regulations for military prisons that included a direction to the Pentagon that military prison guards be trained on proper prisoner handling under the Geneva Conventions. Civilian contractors in Iraq also were to receive mandatory background checks and be barred from performing intelligence gathering or security functions.

In his signing statement, Bush wrote that he could disregard all of these directions.

Twice Congress has passed laws that bar the military from using intelligence that was not "lawfully collected." In both cases, the president said in a signing statement that he can decide what intelligence the military may use.

Bush has declared in a number of signing statements that he will interfere with Congress' oversight role.

For example, Congress passed a bill in 2004 directing the Justice Department to report on the frequency and the manner in which the FBI was implementing a special domestic national security wiretap. Congress also directed the department to share with it memos on the way the administration was interpreting domestic spying laws.

Bush's signing statement said that he could hold back from Congress any information he deemed vital to national security.

When Congress passed a law directing government scientists to transmit information to it directly without first being vetted by political appointees - such as truthful information on global warming - Bush declared that he could withhold any information from Congress that might impair "foreign relations, national security or the workings of the executive branch."

Efforts that Congress has made to protect government whistle-blowers from retaliation have also met with Bush's disapproval.

Because members of Congress were worried that they might not get an honest evaluation by government scientists regarding the safety concerns of a planned nuclear waste dump at Yucca Mountain in Nevada, they included strengthened whistle-blower protections in their energy bill.

Bush's signing statement said he could ignore those protections.

Some legal commentators have suggested that these signing statements have little meaning. Courts will look to the language of the law itself when interpreting a statute and if the statute is ambiguous, the signing statement will simply be part of the legislative history that the courts might or might not consider. But presidential signing statements are likely to guide the bureaucrats in the executive branch.

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.

[Last modified May 14, 2006, 06:00:58]

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