by hilzoy
Via Glenn Greenwald: The Boston Globe ran an excellent story yesterday on Bush's use of signing statements to express his intention not to obey the law:
"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. (...)
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. (...)
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.""
The Constitution requires that the President "take care that the laws be faithfully executed." It does not say that he gets to decide which laws he wants to enforce and which he does not. Nor does it say that he gets to decide for himself which are constitutional: we have courts for that purpose. Bush has not taken his various constitutional claims to court: indeed, he has tried hard to keep them from getting there, for instance by charging Jose Padilla with crimes unrelated to the allegations that got him thrown in jail as an enemy combatant, so that the US Supreme Court would not get to rule on whether the Constitution allows the President to imprison US citizens without trial, without charges, and without access to counsel, whenever the President decides that he is an enemy combatant.
Instead, he simply claims the right to decide which laws to follow and which to break. Moreover, he does this in secret: none of us would have known that he decided to violate FISA had the New York Times not broken the NSA story. If we don't know that he is breaking the laws, we cannot debate the wisdom of doing so, nor can we challenge his actions in court. We just have to trust him to use his dictatorial powers wisely.
Or, as Jack Balkin put it:
"Bush has already adopted President Nixon's view that if the President authorizes something, it isn't illegal, despite what the text of the law says. Now Bush has taken the converse position that if the President doesn't agree with legislation, even legislation that he signs, it isn't law. Together, these two attitudes are deeply corrosive of the Rule of Law and move us down the path to a dictatorial conception of Presidential power-- that is, the conception that the President on his own may dictate what is and what is not law, rather than the President merely being the person in constitutional system entrusted with faithful implementation and enforcement of the law."
This is the antithesis of everything this country stands for. We claim to believe in the rule of law, not men; George W. Bush violates that principle. We claim to believe in the separation of powers; George W. Bush claims for himself the right to make, execute, and interpret the laws, in secret, without any checks or oversight. We claim to believe in democracy; George W. Bush claims the right to decide which laws to execute and which to violate without informing the people, and thus without making it possible for us to know about, let alone debate, what he is doing. We claim to believe in freedom, and yet we are willing to let George W. Bush take our freedoms away from us as long has he tells us that our security demands it. Apparently, we are just supposed to trust him on that one, whether he has earned our trust or not.
This should not be a partisan issue. It is not about something like universal health insurance, about which Democrats and Republicans have different views. It's about the Constitutional principles that all Americans value, and about our system of government itself.
Stalin is said to have asked: "The Pope! How many divisions has he got?" The Pope is not a particularly frightening military power. There aren't very many Swiss Guards, and their ludicrous costumes don't seem particularly well adapted to modern warfare. Still, they exist, and he can call on them to defend him. The Constitution, by contrast, is just a piece of paper. It can't call on anyone. When it needs defending, it has to rely on informed citizens to stick up for it. We should not let it down.
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This is as good a moment as any to plug Glenn Greenwald's book, How Would A Patriot Act?, which I have read. It's very good. As he points out, we are a people who celebrate Patrick Henry, who famously said: "Give me liberty or give me death." Anyone who admires the revolutionary generation and their willingness to fight or their liberties should not admire the chorus of right-wing bloggers who say things like: what good are civil liberties once you're dead? Even if they had assessed the risks correctly, they would be selling our freedom and our founding principles much too cheaply. Given that they have shown no good reason to think that respecting the Fourth Amendment will get us killed, they aren't just selling our freedoms and our system of government too cheaply; they're giving them away for free. That is not how a patriot would act, which makes their willingness to impugn the patriotism of their political opponents just that much more galling.
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