Bush V. Constitution; Ignoring the Will of Congress

Article excerpt

Byline: Nat Hentoff, THE WASHINGTON TIMES

In his speeches abroad on the liberating nature of democracy, President Bush has been particularly eloquent. In Brazil, in November, 2005, for example, he said: "Each democracy has its own character and culture that reflects its unique traditions and history. Yet all free and successful countries share some common characteristics." He cited, as basic to a free society. "the limitation of state power through checks and balances." But he does not realize that no president in American history has more frequently dismissed the check on his powers that the Constitution clearly placed in Congress.

The most recent example of his circumventing Congress revealed by the Boston Globe's sharp-eyed Washington correspondent, Charlie Savage, occurred when the president signed into law the reauthorization of the Patriot Act after a compromise of sorts was reached by the House and Senate.

Following the White House ceremony, as Mr. Savage reported on March 24, "(and) the reporters and guests had left, the White House quietly issued a signing statement, an official document in which the president lays out his interpretation of a new law." As he had previously done in a signing statement, after he signed into law Sen. John McCain's amendment forbidding cruel, inhuman or degrading treatment of detainees, the new signing statement said that the president alone will decide on whether to inform Congress of how the FBI is implementing its expanded powers in this Patriot Act.

In this signing statement, overlooked by most of the press, Mr. Bush declared he won't give this information to Congress if he concludes that doing so would "impair foreign relations, national security, the deliberative process of the executive or the performances of the executive's constitutional duties." Once more, his guiding compass, the "unitary executive" powers of the commander in chief, bypasses his sworn duty to abide by the Constitution's separation of powers.

Sen. Patrick Leahy, Vermont Democrat, then made the constitutional point that, "the president's signing statements are not the law, and Congress should not allow them to be the last word... It is our duty to insure, by means of congressional oversight, that he does so." But the Republican congressional leadership has not successfully challenged the signing statement that almost instantly tossed the McCain amendment into the dustbin of history.

In Hamdan v. Rumsfeld, which is now before the Supreme Court, the justices will rule on the constitutional basis for Mr. Bush's military commissions and their exceedingly limited due process for detainees. His jerry-built commissions are part of what Hamdan's lawyers describe as "a dangerous and unprecedented expansion of executive authority" that, I would add, is continually decreasing individual liberties of American citizens here, including the expanded FBI's search powers with minimal or no judicial oversight. …