The all-powerful executive

Tony Snow, the White House press secretary, said recently that Congress has no oversight authority over the executive. Has he ever even read the US Constitution? Has he ever heard of checks and balances, as described in the constitution? Many in the Bush administration have taken the unitary executive theory to the extreme.

Signing statements have also been used in excess by the president so he can get around the law, without having to use his veto power.

Here's what the president can do:

The president:

* is the Commander in Chief of the armed forces. He or she has the power to call into service the state units of the National Guard, and in times of emergency may be given the power by Congress to manage national security or the economy.
* has the power make treaties with Senate approval. He or she can also receive ambassadors and work with leaders of other nations.
* is responsible for nominating the heads of governmental departments, which the Senate must then approve. In addition, the president nominates judges to federal courts and justices to the United States Supreme Court.
* can issue executive orders, which have the force of law but do not have to be approved by congress.
* can issue pardons for federal offenses.
* can convene Congress for special sessions.
* can veto legislation approved by Congress. However, the veto is limited. It is not a line-item veto, meaning that he or she cannot veto only specific parts of legislation, and it can be overridden by a two-thirds vote by Congress.
* delivers a State of the Union address annually to a joint session of Congress.

The president cannot break American law (wiretapping, FBI Patriot Act use, etc.), international law (Geneva Conventions cum Gitmo, CIA prisons, etc.), sidestep congress whenever he pleases, lie under oath (which I do not think Bush has yet done — ?), or commit any number of obvious and stealthy offenses of the constitution and current law. Clinton lied under oath (i.e. Lewinski); Nixon broke countless laws (e.g. Watergate); Reagan broke plenty national and foreign laws and regulations too (e.g. Iran contra). Bush has done basically all of those except the oath-breaking.

Side-note: while browsing the constitution, I found some interesting sections. I guess most people have forgotten about this one — Article II, Section 4 of the US Constitution:

The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

Zero presidential oversight

This week there were revelations about how both the president and vice president of the United States have managed to remain clear of any sort of accountability or oversight.

First Vice President Cheney's story:

For four years, Vice President Dick Cheney has resisted routine oversight of his office’s handling of classified information, and when the National Archives unit that monitors classification in the executive branch objected, the vice president’s office suggested abolishing the oversight unit, according to documents released yesterday by a Democratic congressman.
...
Representative Henry A. Waxman, Democrat of California and chairman of the House Committee on Oversight and Government Reform, disclosed Mr. Cheney’s effort to shut down the oversight office. Mr. Waxman, who has had a leading role in the stepped-up efforts by Democrats to investigate the Bush administration, outlined the matter in an eight-page letter sent Thursday to the vice president and posted, along with other documentation, on the committee’s Web site.

Officials at the National Archives and the Justice Department confirmed the basic chronology of events cited in Mr. Waxman’s letter.

The letter said that after repeatedly refusing to comply with a routine annual request from the archives for data on his staff’s classification of internal documents, the vice president’s office in 2004 blocked an on-site inspection of records that other agencies of the executive branch regularly go through.
...
“I know the vice president wants to operate with unprecedented secrecy,” Mr. Waxman said in an interview. “But this is absurd. This order is designed to keep classified information safe. His argument is really that he’s not part of the executive branch, so he doesn’t have to comply.”

Bush too has declared himself exempt:

The White House says the president's own order on classified data does not apply to his office or the vice president's.
...
The White House said Friday that, like Vice President Dick Cheney's office, President Bush's office is not allowing an independent federal watchdog to oversee its handling of classified national security information.

An executive order that Bush issued in March 2003 — amending an existing order — requires all government agencies that are part of the executive branch to submit to oversight. Although it doesn't specifically say so, Bush's order was not meant to apply to the vice president's office or the president's office, a White House spokesman said.

Changing the rules — even the ones you wrote — by distorting them. That's the White House's message. So does that mean it's OK if/when Congress ignores it's own laws?

bush, cheney

Why Bush doesn't need to veto often

Signing statements — legal clauses the president can put on legislation exempting his office from the law — have come to the public eye more and more thanks to the Bush administration. This has been a source of worry and helplessness for those of us who do not always see eye to eye with the White House; and it makes Congress look even more impotent to the power of the executive.

The New York Times ran an editorial on Friday about this disgrace:

President Bush is notorious for issuing statements taking exception to hundreds of bills as he signs them. This week, we learned that in a shocking number of cases, the Bush administration has refused to enact those laws. Congress should use its powers to insist that its laws are obeyed.

The Government Accountability Office, a nonpartisan arm of Congress, investigated 19 provisions to which Mr. Bush objected. It found that six of them, or nearly a third, have not been implemented as the law requires. The G.A.O. did not investigate some of the most infamous signing statements, like the challenge to a ban on torture. But the ones it looked into are disturbing enough.

In one case, Congress directed the Pentagon in its 2007 budget request to account separately for the cost of military operations in Iraq and Afghanistan. It was a perfectly appropriate request, but Mr. Bush issued a signing statement critical of the rule, and the Pentagon withheld the information. In two other cases, federal agencies ignored laws requiring them to get permission from Congressional committees before taking particular actions.

The Bush administration’s disregard for these laws is part of its extraordinary theory of the “unitary executive.” The administration asserts that the president has the sole authority to supervise and direct executive officers, and that Congress and the courts cannot interfere. This theory, which has no support in American history or the Constitution, is a formula for autocracy.

Other presidents have issued signing statements, but none has issued as many, or done so with the same contemptuous attitude toward the co-equal branches of government. The G.A.O. report makes clear that Mr. Bush’s signing statements were virtually written instructions to executive agencies to flout acts of Congress. Senator Robert Byrd, Democrat of West Virginia, has said that the report shows that Mr. Bush “is constantly grabbing for more power” and trying to push Congress “to the sidelines.”

Members of Congress have a variety of methods available to make the administration obey the law. They should call the agency heads up to Capitol Hill to explain their intransigence. And they should use the power of the purse, the authority the founders wisely vested in the people’s branch, as a check on a runaway executive branch.

When the Bush presidency ends, there will be a great deal of damage to repair, much of it to the Constitutional system. Congress should begin now to restore the principle that even the president and those who work for him are not above the law.

Kudos to America's best newspaper for the great editorial. I couldn't have written it better myself, which explains why I posted it — I couldn't resist.

A view of executive power, 145 years ago

The following are extracts from the book Executive Power, by B. R. Curtis. The book was published in 1862 and I was lucky enough to get my hands on a copy the last time I was in Washington DC.

From the preface:

Extract from President Lincoln’s proclamation of September 22, 1862. … "Understand I raise no objection against it on legal or constitutional or legal grounds; for, as commander-in-chief of the army and navy, in time of war, I suppose I have a right to take any measure which may be best to subdue the enemy." — President Lincoln to the Chicago Delegation.

Pp 24-27:

The framers of the Constitution thought it wise that the powers of the commander-in-chief of the military forces of the United States should be placed in the hands of the chief civil magistrate.
…
But all the powers of the President are executive merely. He cannot make a law. He cannot repeal one. He can only execute the laws. He can neither make, nor suspend, nor alter them. He cannot even make an article of war. He may govern the army, either by general or special orders, but only in subordination to the Constitution and laws of the United States, and the articles of war enacted by the legislative power.

The time has certainly come when the people of the United States must understand, and must apply those great rules of civil liberty… If they fail to understand and apply them, if they fail to hold every branch of their government steadily to them, who can imagine what is to come out of this great and desperate struggle.

Are the great principles of free government to be used and consumed as means of war? Are we not wise enough and strong enough to carry on this war to a successful military end, without submitting to the loss of any one great principle of liberty. We are strong enough. We are wise enough, if the people and their servants will but understand and observe the just limits of military power.

What, then, are those limits? They are these. There is military law; there is martial law. Military law is that systems of laws enacted by the legislative power for the government of the army and navy of the United States, and of the militia when called into the actual service of the United States. It has no control whatever over any person or any property of any citizen.
…
But there is also Martial law. What is this? It is the will of a military commander, operating without any restraint, save his judgment, upon the lives, upon the property, upon the entire social and individual condition of all over whom this law extends. But, under the Constitution of the United States, over whom does such law extend?

Will any one be bold enough to say, in view of the history of our ancestors and ourselves, that the President of the United States can extend such law as that over the entire country, or over any defined geographical part thereof, … save in connection with some particular military operations which he is carrying on there? Since Charles I. lost his head, there has been no king in England who could make such law, in that realm. And where is there to be found, in our history, or our constitutions, either State or national, any warrant for saying, that a President of the United States has been empowered by the Constitution to extend martial law over the whole country, and to subject thereby to his military power, every right of every citizen? He has no such authority.

In time of war, a military commander, whether he be the commander-in-chief, or one of his subordinates, must possess and exercise powers both over the persons and the property of citizens which do not exist in times of peace. But he possesses and exercises such powers, not in spite of the Constitution and laws of the United States, or in derogation from their authority, but in virtue thereof and in strict subordination thereto.

The author goes on to say, on page 28, that the military authority that commander holds is restricted to the actual battlefield, the site of war, and not the entire legal territory.

P 29:

He is not the military commander of the citizens of the United States, but of its soldiers.

P 33 (out of 34):

Let the people be right, and no President can long be wrong; nor can he effect any fatal mischief if he should be.

Almost 150 years after the writing of this book, the contents are all the more relevant. The United States faces as unreal a 'war' now as it faced a real and necessary one then. That is, the US is supposedly in a war against terrorism today; it was in a real civil war in the mid-1800s.

Even in a civil war, as the author states, the president is not all-powerful in the ways of law. The wars in Afghanistan and Iraq do not include fighting on American soil or against the United States itself (most other wars have). The "war on terrorism" is even less of a reason for the president to extend his military war powers — which are far from unconditional — onto the people of the United States.

President George W. Bush has shown he does not care what the people of the United States think, unless it has a real political effect on him. Since he is a lame duck and cannot be reelected, Bush has no reason to listen other than to look better in the history books. Bush has himself stated that history will judge him well — a statement many people, myself included, view as utter idiocy.

The broad, overreaching powers of the Bush administration are disturbing, with things like the warrantless wiretapping issue, detention and rendition of untried noncitizens, and other civil liberty-harming areas of the 'war on terror'.

No president, whether a Lincoln, a Truman, or a Bush, is legally supreme. The current president seems to think otherwise with his White House's unfettered expansionist view of presidential authority, and the Bush administration's constant overriding of the checks and balances that the Congress and Supreme Court provide. Bush and Cheney believe in the unitary executive. What is written in the law books is often very different from what actually happens. The US Constitution is a 'just a piece of paper' after all.


Song stuck in my head right now: Flathead by The Fratellis