ARC's 1st Law: As a "progressive" online discussion grows longer, the probability of a nefarious reference to Karl Rove approaches one

Monday, May 01, 2006

Constitutional Crisis - Because It's Chimpy W. McBushitler! HALLIBURTON!!!

Charlie Savage of the Boston Globe goes off the deep-end in this story that was printed on Sunday:

Bush challenges hundreds of laws
President cites powers of his office
By Charlie Savage, Globe Staff | April 30, 2006

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.
[ie, he's telling Congress that he doesn't agree with the law, but is enforcing it anyway]

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."
Love that they have to go to Portland State to find a whackjob who thinks we're living in a fascist state.
[...]
Military link
Many of the laws Bush said he can bypass -- including the torture ban -- involve the military. [duh!]

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.
[...]
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.
That's right... we're not talking about criminal prosecution here in the US. We're talking about military intelligence that, if desired by the command authority of the US military, can be followed up with a bunker-buster bomb...

This article was (not surprisingly) well received by the DU crowd... here are a few things that Charlie & the other BDS sufferers fail to mention.

First, all Presidents have used signing statements. Clinton used them regularly... and it is in their perogative to indicate to the legislative branch those provisions which the President feels are encroaching on presidential powers, typically those involving the military since the President is the Commander in Chief. These disagreements are ultimately decided by the Judicial Branch. This is called checks & balances. Here are some examples of instances where signing statements were used in the past... from this 2003 presentation by Christopher Kelley of the University of Miami-Ohio.

The first signing statement was issued by James Monroe... at issue was, yes... you guessed it, the military:
[In] reality the first use of the signing statement was done by President James Monroe. President Monroe issued a statement regarding interpretation of a law he had signed a month earlier. The law both reduced the size of the army and laid out how the president would select new officers. Monroe had gotten criticism from Congress for not abiding by the congressional demand to appoint officers, instead arguing in his signing statement that the president, not the Congress, had the constitutional responsibility of appointing officers.

Another signing statement (which to me seems to be an overreach by the executive, since it dealt with "interstate" commerce and had a tenuous relationship to the military) was issued by President Roosevelt:
One such instance came when President Roosevelt signed the Emergency Price Control Act of 1942. The Emergency Price Control Act was designed to help stabilize the economy during the height of the Second World War. Roosevelt objected to a section of the bill that was a “protectionist measure for farmers”30 in the United States. Roosevelt stated: …
there is nothing contained therein which can be construed as a limitation upon the existing powers of governmental agencies, such as the Commodity Credit Corporation to make sales of agricultural commodities in the normal conduct of their operations.
Roosevelt further demanded that the provision be removed and if the Congress did not remove it, he would treat it as a nullity. Roosevelt had solicited and received advice from the Dean of the Oregon Law School regarding what powers were afforded him during a time of war, particularly what rights did he have to ignore sections of laws he determined interfered with the war effort. The Dean told him that “if you decide that a certain course of action is essential as a war measure, it supersedes congressional action.” The Congress yielded and the section was removed.

Now, I know that this is the heart of the matter. The Left fails to recognize that we are at war... until they recognize this fact, we will find few things on which to agree.

And Bill Clinton's assistant Attorney General, Walter Dellinger, made the following statement to Abner Mikva regarding signing statements:
[the P]resident has enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency. Where the President believes that an enactment unconstitutionally limits his powers, he has the authority to defend his office and decline to abide by it, unless he is convinced that he court would disagree with his assessment…[I]f resolution in the
courts is unlikely and the President cannot look to a judicial determination, he must shoulder the responsibility of protecting the constitutional role of the presidency. (

And finally, even President Carter used a signing statement to invalidate portions of a law that he disagreed with:
For example, in the “Departments of State, Justice, and Commerce, the Judiciary, and related agencies for fiscal year1978”5, an amendment was added that prohibited “the use of funds under this Act to carry out [President Carter’s] amnesty program [for the Vietnam War draft resisters].” When President Carter signed the law, he noted his objection to the amendment because it interfered with his pardon power, was an unconstitutional bill of attainder, and denied due process of the law. To carry out the pardon, President Carter would have to process all of the re-entry applications for those draft resisters that left the country. Even though the Justice Department announced that the restriction would prevent the re-entry of many of the draft resisters, in the end the Carter administration ignored the amendment and processed all of the applications.

Of course, this historical analysis will have little effect on Charlie Savage and his fans at DU. All that matters is the headline and the charge against Bush - nevermind the facts.

Bush is rightly making his opinions known regarding his executive powers as it relates to the military.

Your Co-Conspirator,
ARC: St Wendeler