🚀 go-pugleaf

On Sun, 30 Apr 2006 09:48:12 -0600, joe s <joes@not.athome.biz> wrote:

>Boston Globe 
>April 30, 2006
>
>Bush challenges hundreds of laws
>President cites powers of his office
>By Charlie Savage, Globe Staff
>
>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.
>
>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."
>
>For the first five years of Bush's presidency, his legal claims
>attracted little attention in Congress or the media. Then, twice in
>recent months, Bush drew scrutiny after challenging new laws: a
>torture ban and a requirement that he give detailed reports to
>Congress about how he is using the Patriot Act.
>
>Bush administration spokesmen declined to make White House or Justice
>Department attorneys available to discuss any of Bush's challenges to
>the laws he has signed.
>
>Instead, they referred a Globe reporter to their response to questions
>about Bush's position that he could ignore provisions of the Patriot
>Act. They said at the time that Bush was following a practice that has
>''been used for several administrations" and that ''the president will
>faithfully execute the law in a manner that is consistent with the
>Constitution."
>
>But the words ''in a manner that is consistent with the Constitution"
>are the catch, legal scholars say, because Bush is according himself
>the ultimate interpretation of the Constitution. And he is quietly
>exercising that authority to a degree that is unprecedented in US
>history.
>
>Bush is the first president in modern history who has never vetoed a
>bill, giving Congress no chance to override his judgments. Instead, he
>has signed every bill that reached his desk, often inviting the
>legislation's sponsors to signing ceremonies at which he lavishes
>praise upon their work.
>
>Then, after the media and the lawmakers have left the White House,
>Bush quietly files ''signing statements" -- official documents in
>which a president lays out his legal interpretation of a bill for the
>federal bureaucracy to follow when implementing the new law. The
>statements are recorded in the federal register.
>
>In his signing statements, Bush has repeatedly asserted that the
>Constitution gives him the right to ignore numerous sections of the
>bills -- sometimes including provisions that were the subject of
>negotiations with Congress in order to get lawmakers to pass the bill.
>He has appended such statements to more than one of every 10 bills he
>has signed.
>
>''He agrees to a compromise with members of Congress, and all of them
>are there for a public bill-signing ceremony, but then he takes back
>those compromises -- and more often than not, without the Congress or
>the press or the public knowing what has happened," said Christopher
>Kelley, a Miami University of Ohio political science professor who
>studies executive power.
>
>Military link 
>
>Many of the laws Bush said he can bypass -- including the torture ban
>-- involve the military.
>
>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.
>
>Bush has also said he can bypass laws requiring him to tell Congress
>before diverting money from an authorized program in order to start a
>secret operation, such as the ''black sites" where suspected
>terrorists are secretly imprisoned.
>
>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.
>
>In October 2004, five months after the Abu Ghraib torture scandal in
>Iraq came to light, Congress passed a series of new rules and
>regulations for military prisons. Bush signed the provisions into law,
>then said he could ignore them all. One provision made clear that
>military lawyers can give their commanders independent advice on such
>issues as what would constitute torture. But Bush declared that
>military lawyers could not contradict his administration's lawyers.
>
>Other provisions required the Pentagon to retrain military prison
>guards on the requirements for humane treatment of detainees under the
>Geneva Conventions, to perform background checks on civilian
>contractors in Iraq, and to ban such contractors from performing
>''security, intelligence, law enforcement, and criminal justice
>functions." Bush reserved the right to ignore any of the requirements.
>
>The new law also created the position of inspector general for Iraq.
>But Bush wrote in his signing statement that the inspector ''shall
>refrain" from investigating any intelligence or national security
>matter, or any crime the Pentagon says it prefers to investigate for
>itself.
>
>Bush had placed similar limits on an inspector general position
>created by Congress in November 2003 for the initial stage of the US
>occupation of Iraq. The earlier law also empowered the inspector to
>notify Congress if a US official refused to cooperate. Bush said the
>inspector could not give any information to Congress without
>permission from the administration.
>
>Oversight questioned 
>
>Many laws Bush has asserted he can bypass involve requirements to give
>information about government activity to congressional oversight
>committees.
>
>In December 2004, Congress passed an intelligence bill requiring the
>Justice Department to tell them how often, and in what situations, the
>FBI was using special national security wiretaps on US soil. The law
>also required the Justice Department to give oversight committees
>copies of administration memos outlining any new interpretations of
>domestic-spying laws. And it contained 11 other requirements for
>reports about such issues as civil liberties, security clearances,
>border security, and counternarcotics efforts.
>
>After signing the bill, Bush issued a signing statement saying he
>could withhold all the information sought by Congress.
>
>Likewise, when Congress passed the law creating the Department of
>Homeland Security in 2002, it said oversight committees must be given
>information about vulnerabilities at chemical plants and the screening
>of checked bags at airports.
>
>It also said Congress must be shown unaltered reports about problems
>with visa services prepared by a new immigration ombudsman. Bush
>asserted the right to withhold the information and alter the reports.
>
>On several other occasions, Bush contended he could nullify laws
>creating ''whistle-blower" job protections for federal employees that
>would stop any attempt to fire them as punishment for telling a member
>of Congress about possible government wrongdoing.
>
>When Congress passed a massive energy package in August, for example,
>it strengthened whistle-blower protections for employees at the
>Department of Energy and the Nuclear Regulatory Commission.
>
>The provision was included because lawmakers feared that Bush
>appointees were intimidating nuclear specialists so they would not
>testify about safety issues related to a planned nuclear-waste
>repository at Yucca Mountain in Nevada -- a facility the
>administration supported, but both Republicans and Democrats from
>Nevada opposed.
>
>When Bush signed the energy bill, he issued a signing statement
>declaring that the executive branch could ignore the whistle-blower
>protections.
>
>Bush's statement did more than send a threatening message to federal
>energy specialists inclined to raise concerns with Congress; it also
>raised the possibility that Bush would not feel bound to obey similar
>whistle-blower laws that were on the books before he became president.
>His domestic spying program, for example, violated a surveillance law
>enacted 23 years before he took office.
>
>David Golove, a New York University law professor who specializes in
>executive-power issues, said Bush has cast a cloud over ''the whole
>idea that there is a rule of law," because no one can be certain of
>which laws Bush thinks are valid and which he thinks he can ignore.
>
>''Where you have a president who is willing to declare vast quantities
>of the legislation that is passed during his term unconstitutional, it
>implies that he also thinks a very significant amount of the other
>laws that were already on the books before he became president are
>also unconstitutional," Golove said.
>
>Defying Supreme Court 
>
>Bush has also challenged statutes in which Congress gave certain
>executive branch officials the power to act independently of the
>president. The Supreme Court has repeatedly endorsed the power of
>Congress to make such arrangements. For example, the court has upheld
>laws creating special prosecutors free of Justice Department oversight
>and insulating the board of the Federal Trade Commission from
>political interference.
>
>Nonetheless, Bush has said in his signing statements that the
>Constitution lets him control any executive official, no matter what a
>statute passed by Congress might say.
>
>In November 2002, for example, Congress, seeking to generate
>independent statistics about student performance, passed a law setting
>up an educational research institute to conduct studies and publish
>reports ''without the approval" of the Secretary of Education. Bush,
>however, decreed that the institute's director would be ''subject to
>the supervision and direction of the secretary of education."
>
>Similarly, the Supreme Court has repeatedly upheld affirmative-action
>programs, as long as they do not include quotas. Most recently, in
>2003, the court upheld a race-conscious university admissions program
>over the strong objections of Bush, who argued that such programs
>should be struck down as unconstitutional.
>
>Yet despite the court's rulings, Bush has taken exception at least
>nine times to provisions that seek to ensure that minorities are
>represented among recipients of government jobs, contracts, and
>grants. Each time, he singled out the provisions, declaring that he
>would construe them ''in a manner consistent with" the Constitution's
>guarantee of ''equal protection" to all -- which some legal scholars
>say amounts to an argument that the affirmative-action provisions
>represent reverse discrimination against whites.
>
>Golove said that to the extent Bush is interpreting the Constitution
>in defiance of the Supreme Court's precedents, he threatens to
>''overturn the existing structures of constitutional law."
>
>A president who ignores the court, backed by a Congress that is
>unwilling to challenge him, Golove said, can make the Constitution
>simply ''disappear."
>
>Common practice in '80s 
>
>Though Bush has gone further than any previous president, his actions
>are not unprecedented.
>
>Since the early 19th century, American presidents have occasionally
>signed a large bill while declaring that they would not enforce a
>specific provision they believed was unconstitutional. On rare
>occasions, historians say, presidents also issued signing statements
>interpreting a law and explaining any concerns about it.
>
>But it was not until the mid-1980s, midway through the tenure of
>President Reagan, that it became common for the president to issue
>signing statements. The change came about after then-Attorney General
>Edwin Meese decided that signing statements could be used to increase
>the power of the president.
>
>When interpreting an ambiguous law, courts often look at the statute's
>legislative history, debate and testimony, to see what Congress
>intended it to mean. Meese realized that recording what the president
>thought the law meant in a signing statement might increase a
>president's influence over future court rulings.
>
>Under Meese's direction in 1986, a young Justice Department lawyer
>named Samuel A. Alito Jr. wrote a strategy memo about signing
>statements. It came to light in late 2005, after Bush named Alito to
>the Supreme Court.
>
>In the memo, Alito predicted that Congress would resent the
>president's attempt to grab some of its power by seizing ''the last
>word on questions of interpretation." He suggested that Reagan's legal
>team should ''concentrate on points of true ambiguity, rather than
>issuing interpretations that may seem to conflict with those of
>Congress."
>
>Reagan's successors continued this practice. George H.W. Bush
>challenged 232 statutes over four years in office, and Bill Clinton
>objected to 140 laws over his eight years, according to Kelley, the
>Miami University of Ohio professor.
>
>Many of the challenges involved longstanding legal ambiguities and
>points of conflict between the president and Congress.
>
>Throughout the past two decades, for example, each president --
>including the current one -- has objected to provisions requiring him
>to get permission from a congressional committee before taking action.
>The Supreme Court made clear in 1983 that only the full Congress can
>direct the executive branch to do things, but lawmakers have continued
>writing laws giving congressional committees such a role.
>
>Still, Reagan, George H.W. Bush, and Clinton used the presidential
>veto instead of the signing statement if they had a serious problem
>with a bill, giving Congress a chance to override their decisions.
>
>But the current President Bush has abandoned the veto entirely, as
>well as any semblance of the political caution that Alito counseled
>back in 1986. In just five years, Bush has challenged more than 750
>new laws, by far a record for any president, while becoming the first
>president since Thomas Jefferson to stay so long in office without
>issuing a veto.
>
>''What we haven't seen until this administration is the sheer number
>of objections that are being raised on every bill passed through the
>White House," said Kelley, who has studied presidential signing
>statements through history. ''That is what is staggering. The numbers
>are well out of the norm from any previous administration."
>
>Exaggerated fears? 
>
>Some administration defenders say that concerns about Bush's signing
>statements are overblown. Bush's signing statements, they say, should
>be seen as little more than political chest-thumping by administration
>lawyers who are dedicated to protecting presidential prerogatives.
>
>Defenders say the fact that Bush is reserving the right to disobey the
>laws does not necessarily mean he has gone on to disobey them.
>
>Indeed, in some cases, the administration has ended up following laws
>that Bush said he could bypass. For example, citing his power to
>''withhold information" in September 2002, Bush declared that he could
>ignore a law requiring the State Department to list the number of
>overseas deaths of US citizens in foreign countries. Nevertheless, the
>department has still put the list on its website.
>
>Jack Goldsmith, a Harvard Law School professor who until last year
>oversaw the Justice Department's Office of Legal Counsel for the
>administration, said the statements do not change the law; they just
>let people know how the president is interpreting it.
>
>''Nobody reads them," said Goldsmith. ''They have no significance.
>Nothing in the world changes by the publication of a signing
>statement. The statements merely serve as public notice about how the
>administration is interpreting the law. Criticism of this practice is
>surprising, since the usual complaint is that the administration is
>too secretive in its legal interpretations."
>
>But Cooper, the Portland State University professor who has studied
>Bush's first-term signing statements, said the documents are being
>read closely by one key group of people: the bureaucrats who are
>charged with implementing new laws.
>
>Lower-level officials will follow the president's instructions even
>when his understanding of a law conflicts with the clear intent of
>Congress, crafting policies that may endure long after Bush leaves
>office, Cooper said.
>
>''Years down the road, people will not understand why the policy
>doesn't look like the legislation," he said.
>
>And in many cases, critics contend, there is no way to know whether
>the administration is violating laws -- or merely preserving the right
>to do so.
>
>Many of the laws Bush has challenged involve national security, where
>it is almost impossible to verify what the government is doing. And
>since the disclosure of Bush's domestic spying program, many people
>have expressed alarm about his sweeping claims of the authority to
>violate laws.
>
>In January, after the Globe first wrote about Bush's contention that
>he could disobey the torture ban, three Republicans who were the
>bill's principal sponsors in the Senate -- John McCain of Arizona,
>John W. Warner of Virginia, and Lindsey O. Graham of South Carolina --
>all publicly rebuked the president.
>
>''We believe the president understands Congress's intent in passing,
>by very large majorities, legislation governing the treatment of
>detainees," McCain and Warner said in a joint statement. ''The
>Congress declined when asked by administration officials to include a
>presidential waiver of the restrictions included in our legislation."
>
>Added Graham: ''I do not believe that any political figure in the
>country has the ability to set aside any . . . law of armed conflict
>that we have adopted or treaties that we have ratified."
>
>And in March, when the Globe first wrote about Bush's contention that
>he could ignore the oversight provisions of the Patriot Act, several
>Democrats lodged complaints.
>
>Senator Patrick J. Leahy of Vermont, the ranking Democrat on the
>Senate Judiciary Committee, accused Bush of trying to ''cherry-pick
>the laws he decides he wants to follow."
>
>And Representatives Jane Harman of California and John Conyers Jr. of
>Michigan -- the ranking Democrats on the House Intelligence and
>Judiciary committees, respectively -- sent a letter to Attorney
>General Alberto R. Gonzales demanding that Bush rescind his claim and
>abide by the law.
>
>''Many members who supported the final law did so based upon the
>guarantee of additional reporting and oversight," they wrote. ''The
>administration cannot, after the fact, unilaterally repeal provisions
>of the law implementing such oversight. . . . Once the president signs
>a bill, he and all of us are bound by it."
>
>Lack of court review 
>
>Such political fallout from Congress is likely to be the only check on
>Bush's claims, legal specialists said.
>
>The courts have little chance of reviewing Bush's assertions,
>especially in the secret realm of national security matters.
>
>''There can't be judicial review if nobody knows about it," said Neil
>Kinkopf, a Georgia State law professor who was a Justice Department
>official in the Clinton administration. ''And if they avoid judicial
>review, they avoid having their constitutional theories rebuked."
>
>Without court involvement, only Congress can check a president who
>goes too far. But Bush's fellow Republicans control both chambers, and
>they have shown limited interest in launching the kind of oversight
>that could damage their party.
>
>''The president is daring Congress to act against his positions, and
>they're not taking action because they don't want to appear to be too
>critical of the president, given that their own fortunes are tied to
>his because they are all Republicans," said Jack Beermann, a Boston
>University law professor. ''Oversight gets much reduced in a situation
>where the president and Congress are controlled by the same party."
>
>Said Golove, the New York University law professor: ''Bush has
>essentially said that 'We're the executive branch and we're going to
>carry this law out as we please, and if Congress wants to impeach us,
>go ahead and try it.' "
>
>Bruce Fein, a deputy attorney general in the Reagan administration,
>said the American system of government relies upon the leaders of each
>branch ''to exercise some self-restraint." But Bush has declared
>himself the sole judge of his own powers, he said, and then ruled for
>himself every time.
>
>''This is an attempt by the president to have the final word on his
>own constitutional powers, which eliminates the checks and balances
>that keep the country a democracy," Fein said. ''There is no way for
>an independent judiciary to check his assertions of power, and
>Congress isn't doing it, either. So this is moving us toward an
>unlimited executive power." 


Dumbya just can't stop playing God.