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Hiding in plain sight: The imperial presidency of George W. Bush

"Deep-down you long for a cold-hearted Republican to lower taxes, brutalize criminals, and rule you like a king!"-Sideshow Bob

"...in a manner consistent with the constitutional authority and obligations of the President of the United States..."-Frequent phrase in signing statements by George W. Bush

Signing statements have enjoyed an innocuous existence. For most of this nation's history, they have been rarely used and largely ignored addendums to newly signed laws that explained the presidential interpretation of the statute. Then, in the mid-1980s, a future Supreme Court Justice together with a shifty new Attorney General urged the use of this privilege to expand and solidify the powers of the conservative Chosen One, Ronald Reagan.

George W. Bush had a devilishly clever strategy for dealing with the busybodies of the U.S. Congress. When the legislators passed a bill that was to go to the President for his signature or veto, Bush made an almost exclusive practice of signing the bill into law.

Bush especially relished signing into law the bills that he disdained. By signing, Bush relinquished his veto option, thus negating any possible congressional effort to override the prerogative of the Executive Branch, when it came time to, as the Constitution states, "faithfully execute the law." Bush would then attach a signing statement to the new law, explaining his intention to carry out the law "in a manner consistent with the constitutional authority and obligations of the President." Or, depending on the bill, the Commander-in-Chief. Either way, it was Bush saying he would apply or ignore the law according to his view of the Constitution. He issued over 750 signing statements in his first six years in office, some of them detailing why he did not have to follow a law even if he had no intention of subverting or ignoring the rule (such as the State Department being required to publish a list of U.S. citizen deaths overseas every year).  He just wanted Congress to know he didn't have to if he didn't want to.

While national security was the overriding concern and excuse for a majority of the signing statements, Bush planted executive tentacles in many other areas.

When Bush fought the directives of Affirmative-Action statutes and lost, he corkscrewed the orders into meaning "equal opportunity for all," a blatant undermining of the intention of the law.

When Congress was determined to launch an independent study of student performance in the nation's public schools, Bush went ahead with allowing the creation of the autonomous entity, so long as it reported directly to the Secretary of Education, who of course, reported directly to Bush.

When Congress decided to set up protections from political interference in federally funded scientific research (a nice, quaint thought) Bush issued his usual statement explaining that he would execute the law in a way that fit his understanding of the Constitution. He would decide the meaning of junk science.

The President is required to notify Congress when money is going to be diverted from an authorized program in order to start a secret program, such as the CIA Black Sites. Bush had no intention of following this law, because if he did, the operation would no longer be a secret. Duh.

The interminable deliberations about whether we should stash our nuclear trash at Yucca Mountain in Nevada prompted Congress to strengthen protection of whistle-blowers who questioned the wisdom and feasibility of the project. Bush, a supporter of the nuclear dump, stated his intention to ignore the new protection, thus admitting his intention to go after contrary voices in the debate.

When Congress prohibited U.S. troops being deployed to Colombia, Bush in his signing statement made it clear that his authority as Commander-in-Chief allowed him to make that call.

The U.S. military is forbidden from using evidence collected in violation of the 4th amendment (illegal search and seizure). Bush once again invoked his Commander-in-Chief status to remind Congress whose decision it was when it came to using the evidence.

When Bush commenced his domestic spying program, he had 72 hours AFTER starting the program to petition the court to clear the wiretapping of U.S. citizens. This would most likely have been green-lighted by the court without much fuss (due to national security concerns) but Bush did not bother going to the court at all, willfully ignoring U.S. law.

Congress requested that the Justice Department keep them informed on matters regarding civil liberties, the war on drugs, immigration, and security clearances. These desires did not mesh with the intentions of the Bush administration.

When Bush said he was The Decider, he meant it. His signing statements were never a secret. Anyone who wanted, could read his monarchial beliefs.

Then there was Dick Cheney, the only man ever to pick a fight with the National Archives and Records Administration. When NARA requested knowledge of Cheney's handling of classified documents (a requirement of all members of the Executive Branch, coming from an Executive Order signed by...George W. Bush) they were rebuffed. This is when Cheney made his stupendous argument that because the Vice-President is the President of the Senate, he was actually part of the Legislative Branch, thus he was exempt from this order. Being President of something must mean the prerogative to ignore the law.

That little dust-up was nothing compared to the stonewalling that took place when Cheney refused to reveal who was giving him advice on his Energy Task Force. Why people pretended this was such a mystery is a mystery. It was simply an attempt by Bush antagonists to get the administration to come out and declare their residence as being in the pocket of Big Energy. Why Cheney insisted on perpetuating this pretend mystery is also confounding, especially given his penchant for blunt elucidations. The Supreme Court denied ruling on whether Cheney should hand over the documents. A Federal Appeals Court ruled in favor of Cheney, arguing that it is crucial for those in the Executive Branch to receive unfettered advice. Just as journalists are allowed to protect their sources (except when they reveal something the administration wanted kept secret, in that case they go to jail) so are politicans. In any event, the outcome was a huge victory for the Bush administration in its quest to expand the authority of the Executive.

Bush and Cheney bristled at any law, old or new, that insisted on congressional oversight of the presidency. This is very much in line with the attitudes of his most recent predecessors.

Throughout the 19th century (with one glaring exception) Congress was the big player in Washington. Gradually, with large personalities like Theodore Roosevelt, and urgent situations such as what Woodrow Wilson faced with World War I, the office of the president became a more prominent and formidable force in the federal government. FDR greatly expanded the influence of the president. This trend continued until the successive calamities of the Vietnam War, and the Watergate Scandal, results of the authoritarian inclinations of Lyndon Johnson and Richard Nixon. Congress came roaring back, relegating the terms of Gerald Ford and Jimmy Carter to the scrap heap of history. St. Ronald Reagan led the revolutionary return of presidential authority.

A young lawyer named Samuel Alito Jr. advised the President to use signing statements as a way of putting on record the opinion of the Executive Branch, and inserting it into the lawmaking process. Along with prodding from Attorney General Ed Meese, the second term of Ronald Reagan set the stage for a dramatic increase in Executive Power.   

George H.W. Bush and Bill Clinton continued on the course that Reagan had charted. Bush insisted on his right to deploy troops to Iraq without Congressional approval. He challenged 232 statutes handed over from Congress. Clinton ignored the War Powers act, leaving troops in Kosovo for longer than what was deemed permissible without the involvement of Congress. If not for partisan skullduggery, Dick Cheney would have given Clinton a pat on the back for that one. Clinton stood up to any Congressional act that he saw as restrictive to the president, or exessive in its oversight. Concurrently, Bill did more to diminish the stature of the office than anyone since Nixon when his second term devolved into a screwball sex comedy.

Cheney was a major factor in the continuing push for the Unitary Executive (the President IS the Executive Branch) and protecting the authority of the president. In the wake of the Iran-Contra Scandal, Cheney defended the actions of the Reagan administration, saying that they were required to "work within the letter of the law covertly" due to the irresponsible behavior of Congress.

For six years, George W. Bush was the beneficiary of the Perfect Storm. He had a Republican Congress too sheepish to stray far from his directives, in deference to the good of the Party, and because of simple cowardice. The 9/11 attacks cleared the way for Bush to do whatever he deemed necessary in the interests of national security. The motivation to demonstrate the clout of the presidency combined with the perfect opportunity to do so is great fodder for those inclined toward conspiracies.

What does the Constitution actually say about the powers granted to the President and Congress? Article II states that executive power shall be "vested" in the President. Vested means this power is unalterable, unquestionable, and in perpetuity. Among many other responsiblities, Cogress is charged with building, supporting, and governing the armed forces. Bush disputed this explicit directive from the Constitution, citing his sacrosanct power as Commander-in-Chief. Congress is also granted the authority to deal with enemy captures on land and at sea, a noteworthy consideration in the aftermath of revelations of torture. When John McCain successfully led the push to outlaw torture, Bush once again invoked his authority on matters of national security.

A Civil War era Supreme Court decision (Milligan Ex Parte) delineated the powers of the president during wartime as commanding the forces and conducting the campaigns (two things Bush definitely did not do). It was still up to Congress to actually declare war. It is not clear where this power stands in relation to the presidential authority to do whatever is necessary to protect the public (including the right to suspend Writ of Habeus Corpus in times of emergency-it is in the Constitution).

The Yale Law Journal contended that the President can ignore Congress at any time. Even without the title of Commander-in-Chief, the President would still lead the armed forces because of the general "executive power" of the office. The specific designation of Commander-in-Chief, the Journal hypothesized, was designed to keep the other branches of government in line.

In 1983, the Supreme Court decided that only the full congress could compel the Executive Branch to do anything. During Bush's terms in office, Congress kept trying, unsuccessfully, to give that authority to separate legislative committees, because the signing statement strategy used by Bush meant that the full Congress never had the chance to force anything on Bush.

In 1952, Supreme Court Justice Robert Jackson mused on how far a President can go in exercising the powers of the office. Jackson posited that it depends on "congressional intertia, indifference, or quiescence" and the "imperatives of events and contemporary imponderables, rather than on abstract theories of law."

The Law of the Land is not perfectly rigid and clear. The checks and balances of the federal government are fluid things changing with the situations and personalities that inhabit the starring roles. The power of the President has largely been increasing, with only a few instances when Congress has had the opportunity to thump its' collective chest.

Are we on the path to limitless executive power, an elective dictatorship? Maybe. For George W. Bush, the moment and the players were right for a monumental Executive power-grab. Barack Obama has kept the momentum going, with secret meetings about open government, and until recently, continuing Bush's refusal to disclose White House visitor logs.

When power is bestowed on someone or something, that power is never willingly relinquished.

Coming up next: George W. Bush and Israel

Comments

  • George Copeland 4 years ago

    Your interpretation that Bush's signing statements were extra-constitutional is interesting. However, I note that the only authority competent to say so definitively is the SC, and I note that they never took up such a case. I note also numerous extra-constitutional activities by congress that never seem to provoke so long-winded of a mention by anybody, for example, their meddling in foreign affairs and negotiating with foreign leaders during Iran-Contra. In other words, I find most excoriation of Bush's supposed extra-contitutional behavior to be partisan in nature, devoid of any real seriousness. I place yours in that category as well.

    George Copeland
    National RNC Examiner
    www.copelandweb.com

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