[Mb-civic] Bush challenges hundreds of laws - Charlie Savage - The Boston Globe

[William Swiggard]

  Bush challenges hundreds of laws


    President cites powers of his office

By Charlie Savage  |  April 30, 2006  |  The Boston Globe

WASHINGTON -- 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.

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.

Phillip Cooper, a Portland State University law professor who has 
studied the executive power claims Bush made during his first term, said 
Bush and his legal team have spent the past five years quietly working 
to concentrate ever more governmental power into the White House.

''There is no question that this administration has been involved in a 
very carefully thought-out, systematic process of expanding presidential 
power at the expense of the other branches of government," Cooper said. 
''This is really big, very expansive, and very significant."

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.

Military link
Many of the laws Bush said he can bypass -- including the torture ban -- 
involve the military.

The Constitution grants Congress the power to create armies, to declare 
war, to make rules for captured enemies, and ''to make rules for the 
government and regulation of the land and naval forces." But, citing his 
role as commander in chief, Bush says he can ignore any act of Congress 
that seeks to regulate the military.

On at least four occasions while Bush has been president, Congress has 
passed laws forbidding US troops from engaging in combat in Colombia, 
where the US military is advising the government in its struggle against 
narcotics-funded Marxist rebels.

After signing each bill, Bush declared in his signing statement that he 
did not have to obey any of the Colombia restrictions because he is 
commander in chief.

Bush has also said he can bypass laws requiring him to tell Congress 
before diverting money from an authorized program in order to start a 
secret operation, such as the ''black sites" where suspected terrorists 
are secretly imprisoned.

Congress has also twice passed laws forbidding the military from using 
intelligence that was not ''lawfully collected," including any 
information on Americans that was gathered in violation of the Fourth 
Amendment's protections against unreasonable searches.

Congress first passed this provision in August 2004, when Bush's 
warrantless domestic spying program was still a secret, and passed it 
again after the program's existence was disclosed in December 2005.

On both occasions, Bush declared in signing statements that only he, as 
commander in chief, could decide whether such intelligence can be used 
by the military.

In October 2004, five months after the Abu Ghraib torture scandal in 
Iraq came to light, Congress passed a series of new rules and 
regulations for military prisons. Bush signed the provisions into law, 
then said he could ignore them all. One provision made clear that 
military lawyers can give their commanders independent advice on such 
issues as what would constitute torture. But Bush declared that military 
lawyers could not contradict his administration's lawyers.

Other provisions required the Pentagon to retrain military prison guards 
on the requirements for humane treatment of detainees under the Geneva 
Conventions, to perform background checks on civilian contractors in 
Iraq, and to ban such contractors from performing ''security, 
intelligence, law enforcement, and criminal justice functions." Bush 
reserved the right to ignore any of the requirements.

The new law also created the position of inspector general for Iraq. But 
Bush wrote in his signing statement that the inspector ''shall refrain" 
from investigating any intelligence or national security matter, or any 
crime the Pentagon says it prefers to investigate for itself.

Bush had placed similar limits on an inspector general position created 
by Congress in November 2003 for the initial stage of the US occupation 
of Iraq. The earlier law also empowered the inspector to notify Congress 
if a US official refused to cooperate. Bush said the inspector could not 
give any information to Congress without permission from the administration.

Oversight questioned
Many laws Bush has asserted he can bypass involve requirements to give 
information about government activity to congressional oversight 
committees.

In December 2004, Congress passed an intelligence bill requiring the 
Justice Department to tell them how often, and in what situations, the 
FBI was using special national security wiretaps on US soil. The law 
also required the Justice Department to give oversight committees copies 
of administration memos outlining any new interpretations of 
domestic-spying laws. And it contained 11 other requirements for reports 
about such issues as civil liberties, security clearances, border 
security, and counternarcotics efforts.

After signing the bill, Bush issued a signing statement saying he could 
withhold all the information sought by Congress.

Likewise, when Congress passed the law creating the Department of 
Homeland Security in 2002, it said oversight committees must be given 
information about vulnerabilities at chemical plants and the screening 
of checked bags at airports.

It also said Congress must be shown unaltered reports about problems 
with visa services prepared by a new immigration ombudsman. Bush 
asserted the right to withhold the information and alter the reports.

On several other occasions, Bush contended he could nullify laws 
creating ''whistle-blower" job protections for federal employees that 
would stop any attempt to fire them as punishment for telling a member 
of Congress about possible government wrongdoing.

When Congress passed a massive energy package in August, for example, it 
strengthened whistle-blower protections for employees at the Department 
of Energy and the Nuclear Regulatory Commission.

The provision was included because lawmakers feared that Bush appointees 
were intimidating nuclear specialists so they would not testify about 
safety issues related to a planned nuclear-waste repository at Yucca 
Mountain in Nevada -- a facility the administration supported, but both 
Republicans and Democrats from Nevada opposed.

When Bush signed the energy bill, he issued a signing statement 
declaring that the executive branch could ignore the whistle-blower 
protections.

Bush's statement did more than send a threatening message to federal 
energy specialists inclined to raise concerns with Congress; it also 
raised the possibility that Bush would not feel bound to obey similar 
whistle-blower laws that were on the books before he became president. 
His domestic spying program, for example, violated a surveillance law 
enacted 23 years before he took office.

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."

Common practice in '80s
Though Bush has gone further than any previous president, his actions 
are not unprecedented.

Since the early 19th century, American presidents have occasionally 
signed a large bill while declaring that they would not enforce a 
specific provision they believed was unconstitutional. On rare 
occasions, historians say, presidents also issued signing statements 
interpreting a law and explaining any concerns about it.

But it was not until the mid-1980s, midway through the tenure of 
President Reagan, that it became common for the president to issue 
signing statements. The change came about after then-Attorney General 
Edwin Meese decided that signing statements could be used to increase 
the power of the president.

When interpreting an ambiguous law, courts often look at the statute's 
legislative history, debate and testimony, to see what Congress intended 
it to mean. Meese realized that recording what the president thought the 
law meant in a signing statement might increase a president's influence 
over future court rulings.

Under Meese's direction in 1986, a young Justice Department lawyer named 
Samuel A. Alito Jr. wrote a strategy memo about signing statements. It 
came to light in late 2005, after Bush named Alito to the Supreme Court.

In the memo, Alito predicted that Congress would resent the president's 
attempt to grab some of its power by seizing ''the last word on 
questions of interpretation." He suggested that Reagan's legal team 
should ''concentrate on points of true ambiguity, rather than issuing 
interpretations that may seem to conflict with those of Congress."

Reagan's successors continued this practice. George H.W. Bush challenged 
232 statutes over four years in office, and Bill Clinton objected to 140 
laws over his eight years, according to Kelley, the Miami University of 
Ohio professor.

Many of the challenges involved longstanding legal ambiguities and 
points of conflict between the president and Congress.

Throughout the past two decades, for example, each president -- 
including the current one -- has objected to provisions requiring him to 
get permission from a congressional committee before taking action. The 
Supreme Court made clear in 1983 that only the full Congress can direct 
the executive branch to do things, but lawmakers have continued writing 
laws giving congressional committees such a role.

Still, Reagan, George H.W. Bush, and Clinton used the presidential veto 
instead of the signing statement if they had a serious problem with a 
bill, giving Congress a chance to override their decisions.

But the current President Bush has abandoned the veto entirely, as well 
as any semblance of the political caution that Alito counseled back in 
1986. In just five years, Bush has challenged more than 750 new laws, by 
far a record for any president, while becoming the first president since 
Thomas Jefferson to stay so long in office without issuing a veto.

''What we haven't seen until this administration is the sheer number of 
objections that are being raised on every bill passed through the White 
House," said Kelley, who has studied presidential signing statements 
through history. ''That is what is staggering. The numbers are well out 
of the norm from any previous administration."

Exaggerated fears?
Some administration defenders say that concerns about Bush's signing 
statements are overblown. Bush's signing statements, they say, should be 
seen as little more than political chest-thumping by administration 
lawyers who are dedicated to protecting presidential prerogatives.

Defenders say the fact that Bush is reserving the right to disobey the 
laws does not necessarily mean he has gone on to disobey them.

Indeed, in some cases, the administration has ended up following laws 
that Bush said he could bypass. For example, citing his power to 
''withhold information" in September 2002, Bush declared that he could 
ignore a law requiring the State Department to list the number of 
overseas deaths of US citizens in foreign countries. Nevertheless, the 
department has still put the list on its website.

Jack Goldsmith, a Harvard Law School professor who until last year 
oversaw the Justice Department's Office of Legal Counsel for the 
administration, said the statements do not change the law; they just let 
people know how the president is interpreting it.

''Nobody reads them," said Goldsmith. ''They have no significance. 
Nothing in the world changes by the publication of a signing statement. 
The statements merely serve as public notice about how the 
administration is interpreting the law. Criticism of this practice is 
surprising, since the usual complaint is that the administration is too 
secretive in its legal interpretations."

But Cooper, the Portland State University professor who has studied 
Bush's first-term signing statements, said the documents are being read 
closely by one key group of people: the bureaucrats who are charged with 
implementing new laws.

Lower-level officials will follow the president's instructions even when 
his understanding of a law conflicts with the clear intent of Congress, 
crafting policies that may endure long after Bush leaves office, Cooper 
said.

''Years down the road, people will not understand why the policy doesn't 
look like the legislation," he said.

And in many cases, critics contend, there is no way to know whether the 
administration is violating laws -- or merely preserving the right to do so.

Many of the laws Bush has challenged involve national security, where it 
is almost impossible to verify what the government is doing. And since 
the disclosure of Bush's domestic spying program, many people have 
expressed alarm about his sweeping claims of the authority to violate laws.

In January, after the Globe first wrote about Bush's contention that he 
could disobey the torture ban, three Republicans who were the bill's 
principal sponsors in the Senate -- John McCain of Arizona, John W. 
Warner of Virginia, and Lindsey O. Graham of South Carolina -- all 
publicly rebuked the president.

''We believe the president understands Congress's intent in passing, by 
very large majorities, legislation governing the treatment of 
detainees," McCain and Warner said in a joint statement. ''The Congress 
declined when asked by administration officials to include a 
presidential waiver of the restrictions included in our legislation."

Added Graham: ''I do not believe that any political figure in the 
country has the ability to set aside any . . . law of armed conflict 
that we have adopted or treaties that we have ratified."

And in March, when the Globe first wrote about Bush's contention that he 
could ignore the oversight provisions of the Patriot Act, several 
Democrats lodged complaints.

Senator Patrick J. Leahy of Vermont, the ranking Democrat on the Senate 
Judiciary Committee, accused Bush of trying to ''cherry-pick the laws he 
decides he wants to follow."

And Representatives Jane Harman of California and John Conyers Jr. of 
Michigan -- the ranking Democrats on the House Intelligence and 
Judiciary committees, respectively -- sent a letter to Attorney General 
Alberto R. Gonzales demanding that Bush rescind his claim and abide by 
the law.

''Many members who supported the final law did so based upon the 
guarantee of additional reporting and oversight," they wrote. ''The 
administration cannot, after the fact, unilaterally repeal provisions of 
the law implementing such oversight. . . . Once the president signs a 
bill, he and all of us are bound by it."

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." 

http://www.boston.com/news/nation/washington/articles/2006/04/30/bush_challenges_hundreds_of_laws/
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