Magazine article The American Conservative

Power of the Pen

Magazine article The American Conservative

Power of the Pen

Article excerpt

The president uses signing statements to decree which laws apply to him.

FOR GENERATIONS, Republican politicians have spoken reverently of the rule of law. But since 2001, this hoary doctrine has been redefined to mean little more than the enforcement of the secret thoughts of the commander in chief.

George W. Bush has added more than 750 "signing statements" to new laws since he took office. Earlier presidents occasionally appended such comments to new statutes, but Bush is the first to use signing statements routinely to nullify key provisions of new laws. He perennially announces that he will not be bound by limits on his power and that he will scorn obligations to disclose how federal power is being used.

While Bush supporters speak glowingly of originalist interpretations of the Constitution, Bush's signing statements have far more in common with George III than with George Washington. The Constitution specifies that Congress shall "make all laws" and that presidents must "take care that the laws be faithfully executed." But Bush-his ego swollen by swarms of groveling intellectuals-has embraced theories that convince him that the president alone may decree what shall be the law.

Bush's most famous signing statement was on the Detainee Treatment Act of 2005. After White House Counsel Alberto Gonzales publicly declared that Bush enjoyed a "commander in chief override" regarding laws prohibiting torture, members of Congress enacted legislation to make it stark that torture was illegal. The White House engaged in long and arduous negotiations with Congress. After Bush signed this law last Dec. 30, he announced that he would construe it "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power." This was widely interpreted to mean that the law is binding only when Bush pleases. He was reiterating a confidential 2002 Justice Department memo that declared that the federal Anti-Torture Act "would be unconstitutional if it impermissibly encroached on the President's constitutional power to conduct a military campaign."

Getting the Patriot Act renewed was one of the Bush administration's highest priorities. After months of negotiations and compromises, a bipartisan agreement was finally reached, giving the White House almost everything it wanted. As part of the deal, Bush administration officials agreed to provide Congress with more details on how Patriot Act powers were being used. The Justice Department would be obliged to disclose to Congress how many Americans' privacy was being violated by FBI subpoenas known as National Security Letters. (The Washington Post reported that the FBI was issuing 30,000 such letters a year). However, Bush reneged in a "signing statement" quietly released after a heavily hyped White House bill-signing ceremony. Bush decreed that he was entitled to deny Congress any information that would "impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive's constitutional duties." Bush announced that he would interpret the law "in a manner consistent with the president's constitutional authority to supervise the unitary executive branch and to withhold information.''

In other words, any provision in the law that requires disclosure is presumptively null and void. The crux of the "unitary executive" is that all power rests in the president and that checks and balances are an archaic relic. This is the same "principle" the Bush administration invoked to deny Congress everything from Iraqi war plans to the records of the Cheney Energy Task Force. Bush has invoked the "unitary executive" doctrine almost 100 times since taking office, according to Miami University professor Christopher Kelley.

Democrats were furious over what they saw as a Bush Patriot Act doublecross. …

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