George W. Bush Administration Rebalancing Balance of Power

Bush challenges hundreds of laws
President cites powers of his office

This headline greeted me when I opened my Boston Globe this morning.

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. (you can read another take on this under Jim's blog entry on May 1, titled "Happy Law Day")

Former administration officials contend that just because Bush reserves the right to disobey a law does not mean he is not enforcing it: In many cases, he is simply asserting his belief that a certain requirement encroaches on presidential power.

But with the disclosure of Bush's domestic spying program, in which he ignored a law requiring warrants to tap the phones of Americans, many legal specialists say Bush is hardly reluctant to bypass laws he believes he has the constitutional authority to override.

Far more than any predecessor, Bush has been aggressive about declaring his right to ignore vast swaths of laws -- many of which he says infringe on power he believes the Constitution assigns to him alone as the head of the executive branch or the commander in chief of the military.

Many legal scholars say they believe that Bush's theory about his own powers goes too far and that he is seizing for himself some of the law-making role of Congress and the Constitution-interpreting role of the courts.
(snip)
For the first five years of Bush's presidency, his legal claims attracted little attention in Congress or the media. Then, twice in recent months, Bush drew scrutiny after challenging new laws: a torture ban and a requirement that he give detailed reports to Congress about how he is using the Patriot Act.

Bush administration spokesmen declined to make White House or Justice Department attorneys available to discuss any of Bush's challenges to the laws he has signed.

Instead, they referred a Globe reporter to their response to questions about Bush's position that he could ignore provisions of the Patriot Act. They said at the time that Bush was following a practice that has ''been used for several administrations" and that ''the president will faithfully execute the law in a manner that is consistent with the Constitution."

But the words ''in a manner that is consistent with the Constitution" are the catch, legal scholars say, because Bush is according himself the ultimate interpretation of the Constitution. And he is quietly exercising that authority to a degree that is unprecedented in US history.

Bush is the first president in modern history who has never vetoed a bill, giving Congress no chance to override his judgments. Instead, he has signed every bill that reached his desk, often inviting the legislation's sponsors to signing ceremonies at which he lavishes praise upon their work.

Then, after the media and the lawmakers have left the White House, Bush quietly files ''signing statements" -- official documents in which a president lays out his legal interpretation of a bill for the federal bureaucracy to follow when implementing the new law. The statements are recorded in the federal register.

In his signing statements, Bush has repeatedly asserted that the Constitution gives him the right to ignore numerous sections of the bills -- sometimes including provisions that were the subject of negotiations with Congress in order to get lawmakers to pass the bill. He has appended such statements to more than one of every 10 bills he has signed.

''He agrees to a compromise with members of Congress, and all of them are there for a public bill-signing ceremony, but then he takes back those compromises -- and more often than not, without the Congress or the press or the public knowing what has happened," said Christopher Kelley, a Miami University of Ohio political science professor who studies executive power.

I have linked to the excellent article in full (except that it leaves out the graphs which show that

George H.W. Bush in 4 years: Challenged 232 statutes

Bill Clinton in 8 years: Challenged 140 statutes

George W. Bush in 5 years: Challenged at least 750 statutes

(according to an analysis by Christopher Kelley a political scientist at Miami University of Ohio. I find he has posted excellent research to the web from his web page link and maintains an very interesting political blog, Mediawatch here. He also recommends his friend's webpage on the U.S. Presidency link here. I shall link back to Dr. Kelley -- He is job hunting, so if you know anybody in the market for a political science prof...!)

The first website above includes an excellent paper that Dr. Kelley co-authored and just presented this April, 2006 to the Midwest Political Science Association Meeting at Chicago, Illinois, titled Last Mover Advantage: Presidential Power and the Role of Signing Statements. The authors note that presidential signing statements are the least understood method of rebalancing the power between Congress and President. They note that it has become more used since the polarized presidency of Nixon, where the pressures of Viet Nam and Watergate led to widespread distrust of the "Imperial Presidency." They write that it allows the President to protect the executive prerogatives and advance his policy interests in some pretty amazing ways that have until very recently escaped the notice of the press and public.

The paper notes four major uses of the signing statement. There is the rhetorical device, which is the only use I was ever really aware of. The President takes the opportunity when signing a bill into law to praise supporters of the bill or to denigrate the opposition, aiming remarks for the press and public. To tell the truth, I never thought this type of remark was much more than window dressing, and I guess that is true; it is pats on the back for the home team or punishment for the bad guys. But the surprise now is that it can also be used like the magicians use the business with the silk scarves, to drag your attention away from the real business.

The second major use of the Presidential signing statement is to try to influence the courts' interpretation. For instance, explaining the executive's interpretation of the legislative history of the new law. Third use is to instruct the officials of executive branch agencies in the president's interpretation and preferred application of a new law. Often the President has promised a new agenda in election speeches, and wants that delivered through the agencies. I never thought of the signing statement in this way, but of course it would be important and a perfectly legitimate use of the signing statement.

The fourth use of the Presidential signing statement is to signal and correct what the President considers Constitutional defects in the new law. For instance, the paper offers, the President may instruct the Justice Department not to defend a particular provision if challenged in court. Or, more controversially, that the President finds a provision unconstitutional and refuses to enforce it. This is the area in which our current President and Congress are struggling right now. The paper traces the refusal to enforce to the Reagan presidency, which asserted the right in speeches cited in the paper, Attorney General Edwin Meese at Tulane University in 1987:

"...constitutional interpretation is not the business of the Court only but also properly the business of all branches of government."

The paper analyzes the current Bush administration's widening use of the Presidential signing statement as a symptom of their decreasing ability to work with the Congress. They cite statistics of the number of bills W. has gotten passed but comment that the numbers are misleading as the second term progresses. Democrats are increasingly unified, and Republicans are becoming increasingly disenchanted and willing to defy the President. In order to achieve his objectives, as well as to avoid controversy, W. may increasingly have to rely on the "last move advantage" of the signing statement. The authors hypothesize that as the executive branch becomes less able to influence legislation, the use of signing statements will increase. That may be less attractive as the signing statement is no longer the stealth move it once was, but it still has a stunning "last move" effectiveness.

With the Supreme Court filled with former Republican staffers like Alito and Scalia (read the paper in full!), court challenges to the presidential signing statements might not be the division of powers answer one assumed.


However, the Boston Globe article goes on to look at how the George W. Bush signing statements are changing the constitutional balance of power both regarding the Supreme Court and within the executive branch itself:

David Golove, a New York University law professor who specializes in executive-power issues, said Bush has cast a cloud over ''the whole idea that there is a rule of law," because no one can be certain of which laws Bush thinks are valid and which he thinks he can ignore.

''Where you have a president who is willing to declare vast quantities of the legislation that is passed during his term unconstitutional, it implies that he also thinks a very significant amount of the other laws that were already on the books before he became president are also unconstitutional," Golove said.

Defying Supreme Court
Bush has also challenged statutes in which Congress gave certain executive branch officials the power to act independently of the president. The Supreme Court has repeatedly endorsed the power of Congress to make such arrangements. For example, the court has upheld laws creating special prosecutors free of Justice Department oversight and insulating the board of the Federal Trade Commission from political interference.

Nonetheless, Bush has said in his signing statements that the Constitution lets him control any executive official, no matter what a statute passed by Congress might say.

In November 2002, for example, Congress, seeking to generate independent statistics about student performance, passed a law setting up an educational research institute to conduct studies and publish reports ''without the approval" of the Secretary of Education. Bush, however, decreed that the institute's director would be ''subject to the supervision and direction of the secretary of education."

Similarly, the Supreme Court has repeatedly upheld affirmative-action programs, as long as they do not include quotas. Most recently, in 2003, the court upheld a race-conscious university admissions program over the strong objections of Bush, who argued that such programs should be struck down as unconstitutional.

Yet despite the court's rulings, Bush has taken exception at least nine times to provisions that seek to ensure that minorities are represented among recipients of government jobs, contracts, and grants. Each time, he singled out the provisions, declaring that he would construe them ''in a manner consistent with" the Constitution's guarantee of ''equal protection" to all -- which some legal scholars say amounts to an argument that the affirmative-action provisions represent reverse discrimination against whites.

Golove said that to the extent Bush is interpreting the Constitution in defiance of the Supreme Court's precedents, he threatens to ''overturn the existing structures of constitutional law."

A president who ignores the court, backed by a Congress that is unwilling to challenge him, Golove said, can make the Constitution simply ''disappear."

(snip)

Lack of court review
Such political fallout from Congress is likely to be the only check on Bush's claims, legal specialists said.

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

''There can't be judicial review if nobody knows about it," said Neil Kinkopf, a Georgia State law professor who was a Justice Department official in the Clinton administration. ''And if they avoid judicial review, they avoid having their constitutional theories rebuked."

Without court involvement, only Congress can check a president who goes too far. But Bush's fellow Republicans control both chambers, and they have shown limited interest in launching the kind of oversight that could damage their party.

''The president is daring Congress to act against his positions, and they're not taking action because they don't want to appear to be too critical of the president, given that their own fortunes are tied to his because they are all Republicans," said Jack Beermann, a Boston University law professor. ''Oversight gets much reduced in a situation where the president and Congress are controlled by the same party."

Said Golove, the New York University law professor: ''Bush has essentially said that 'We're the executive branch and we're going to carry this law out as we please, and if Congress wants to impeach us, go ahead and try it.' "

Bruce Fein, a deputy attorney general in the Reagan administration, said the American system of government relies upon the leaders of each branch ''to exercise some self-restraint." But Bush has declared himself the sole judge of his own powers, he said, and then ruled for himself every time.

''This is an attempt by the president to have the final word on his own constitutional powers, which eliminates the checks and balances that keep the country a democracy," Fein said. ''There is no way for an independent judiciary to check his assertions of power, and Congress isn't doing it, either. So this is moving us toward an unlimited executive power."

The photo of President Bush is from www.whitehouse.gov/president