Sunday, April 30, 2006

Rx: Shut them down

[updated below]

Charlie Savage, reporting in the Boston Globe:
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.


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."

Constitution? We don't need no stinking Constitution!

Jacob G. Hornberger objects:

No one can deny that we now live in a country in which the ruler has the omnipotent power to send the entire nation into war on his own initiative. To use the president’s words, when it comes to declaring and waging war against another country, he’s the “decider.”

It wasn’t always that way. The Constitution brought into existence a government in which the powers to declare war and wage war were vested in two separate branches of the government. While the president had the power to wage war, he was prohibited from exercising it without a declaration of war from Congress.

The idea behind the Constitution itself was that a free society necessarily entails restrictions on the power of the government, especially its ruler.

Yet we now live in a nation in which the president has the omnipotent power to ignore all constitutional restraints on his power. That might not be the way the president and his legal advisors put it, but that is the practical effect of what they are saying to justify his powers. They effectively claim that the Constitution vests the president – as military commander in chief during the “war on terrorism” – with such extraordinary powers that he is able to ignore restraints on his powers imposed both by the Constitution and by Congress.

No restraints on declaring and waging war against other nations. No restraints on the power to secretly record telephone conversations of the American people. No restraints on the power to kidnap and send people into overseas concentration camps for the purpose of torture and even execution. No restraints on the power to take Americans into custody as “enemy combatants” and punish them – even torture and execute them – without due process of law and jury trials.

If all that isn’t dictatorship, what is?

This is a large part of the damages I keep referrring to, the ineffable harm that's been done to us by Bush and Cheney, the first Yoo Doctrine Presidency. It's up to us to insure that there won't be others.

We'll see what happens as a result of all the corruption investigations current ongoing, whether they will break the back of the right-wing control of the Republican Party, but, given the care and effort that's been put into gaining that control, I rather doubt that will be the case. Slightly more likely, and possibly the best thing that could happen for us, is that the Republican Party will die, and be replaced by a new, and more moderate center-right coalition party. If the Democratic Party is able to regain power between now and 2008, they really should start thinking in terms of doing everything possible to help that implosion happen.

Certainly, it would be a mistake for the Democrats to blithely return to a policy of business-as-once-usual bipartisan cooperation, which would only help to allow those people who've been responsible for shutting out the Democrats to stay in power. It'll be hard for those who have been around for a long time, and remember when it was possible to work across the aisle to get things done, but the Democrats, if they regain power, ought to consider shutting down the Republican Party as much as possible, just totally starve them -- not in retribution (although that would certainly be deserved), but because the Republican Party has, in fact, become an outlaw organization, opposed to the precepts of the Constitution, and profoundly un-American in its philosophy and actions.

Republicans who consider themselves moderates, and who don't subscribe to the ideology of usurping the Constitution which now animates their party, ought to get out now, or be subject to the same prescription. A moderate who's with us when we don't need them is a useless thing, not worthy of having our contempt withheld.

I'm surely aware that charges such as these are very strong, but the situation we're in is, in fact, dire, and getting worse. Over a thousand days to go, too much time.

[Thanks to BayWife and Peggy]

Update: Glenn Greenwald:

It is not uncommon for a President to refrain from executing a law which he believes, and states, is unconstitutional. Other Presidents have invoked that doctrine, although Bush has done so far more aggressively and frequently. But what is uncommon - what is entirely unprecedented - is that the administration's theories of its own power arrogate unto itself not just the right to refrain from enforcing such laws, but to act in violation of those laws, to engage in the very conduct which those laws criminalize, and they do so secretly and deceitfully, after signing the law and pretending that they are engaged in the democratic process. That is why the President has never bothered to veto a law -- why bother to veto laws when you have the power to violate them at will?

I have pointed out many times before that scandals which harm or bring down a presidency do not develop overnight. Americans have to really be persuaded that there is serious and deliberate wrongdoing in order to demand that meaningful action be taken. But that is clearly starting to happen, and the Globe and Charlie Savage should be congratulated for that rarest of acts -- journalists who are fulfilling their journalistic purpose by informing Americans as to what this government really is doing.


At what point does this country begin to recognise that we are in the midst of a constitutional crisis?


Something is very wrong with our political system. And part of what is wrong is the political press corpse who are so insular and socially embedded with the players that they can't see how this looks to us rubes outside the beltway.

I'm grateful that at least some reporters are coming around on this story. It's long overdue (although I suspect that the administration's antipathy for unapproved leaks might have something to do with it) But you really have to wonder why they were so rabidly and openly anti-Clinton, to the point of trying to affirmatively help the Republicans drive him from office, while this time trying to extract promises that the Democrats won't hold Bush accountable for anything he has done.

Today we are in a real constitutional crisis and it seems the press are only belatedly beginning to focus. And, once again, the American people are way ahead of these elitist snobs who always seem to misjudge what they really care about.

Both Digby and Greenwald mention Stephen Colbert's scathing routine at the White House Correspondents' Dinner, and what Billmon has to say about it is right on point:

Like its upscale sibling, the annual Gridiron Club dinner, the White House Correspondents dinner is a ritual designed, at least implicitly, to showcase the underlying unity of our Beltway elites. It's supposed to demonstrate that no matter how ferocious their battles may appear on the surface, political opponents can still gather in the same room and break bread, with the corporate media acting as the properly neutral host. It's a relic of the good old days of centrism and bipartisan log rolling ("the end of ideology"), visible proof that in the American system, there may be enemies, but there are no mortal enemies. And so we last night we had Joe Wilson and Valerie Plame sitting at one table, Karl Rove at another, and no knives were drawn.

The light entertainment at these events is also supposed to reflect the same spirit of forced good cheer, to the point where even matters of deadly seriousness -- things that in other countries might cause governments to fall -- are treated like inside jokes, as with Shrub's looking-for-the-missing-WMDs-under-the-couch routine. Ha ha ha. We're all friends here!

The underlying message, never stated or even acknowledged, is that there are no disputes that can't be resolved within the cozy confines of our "democratic" (oligarchic) system. Friends don't send friends to jail -- or smash their presses or abolish their political parties or line them up against the wall and shoot them.

The problem is that the tissue of this particular lie has been eroding ever since the Clinton impeachment, if not before, and is now worn exceedingly thin. It's becoming harder and harder to conceal the ruthlessness of the struggle for power, or ignore the consequences of losing it.

There were people at last night's dinner who really could end up in jail -- depending on Patrick Fitzgerald's theory of the case and/or the results of the next two elections. Things have been done over the past five years that can't be undone; crimes committed that can't be uncommitted. If Colbert faced a tough crowd last night, it was probably because so many of them understand that the Cheneyites and the Rovians really are rearranging the deck chairs on the Hindenberg, and that if the airship goes down in flames their own window seats are going to get pretty toasty. Jobs are at stake. Careers could be at stake. For all we know lives could be at stake.

So this is what I've been writing (for instance here), and the reason I took the step of suggesting that if the Democrats gat back into power they ought to treat the Republicans like pariahs, an outcast party:

The rules have changed.
There are some Democrats in power who seem to get it, that it's not the same-old same-old they've been used to, but others are clearly clueless, and need some serious education about what's been done to them, and to us.

Update: Jack Balkin:
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.

And to think we worried about the "Imperial Presidency" under Nixon. Little did we know that was just a dry run for the real thing, the Yoo-Doctrine Imperium.

Update: Greenwald has further thoughts in a comment:

That has been one of the most eye-opening aspects of having this blog - when you point out that the President is violating various laws, his defenders will come and argue that the laws he is violating aren't very good laws - as though the President should be able to unilaterally break whatever laws he doesn't like and then argue afterwards that the laws he violated were bad laws.

Thus, the President is going to violate the Patriot Act's reporting provisions because those reporting provisions shouldn't have been in that law. It's truly amazing how commonplace that argument has become - they don't seem to realize that they are endorsing a form of authoritarian anarchy by defneding it.

I'd say that many defenders at the blog-comment level aren't aware of it, but that the Big Boys who defend it at the Mainstream Pundit Level and above completely understand what it is they're supporting.

Update: More thoughts on Colbert here and here.

Ed Fitzgerald | 4/30/2006 10:38:00 PM | | | | GO: TOP OF HOME PAGE


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Bullshit, trolling, unthinking knee-jerk dogmatism and the drivel of idiots will be ruthlessly deleted and the posters banned.

Entertaining, interesting, intelligent, informed and informative comments will always be welcome, even when I disagree with them.

I am the sole judge of which of these qualities pertains.

All e-mail received is subject to being published on unfutz without identifying names or addresses.

I correct typos and other simple errors of grammar, syntax, style and presentation in my posts after the fact without necessarily posting notification of the change.

Substantive textual changes, especially reversals or major corrections, will be noted in an "Update" or a footnote.

Also, illustrations may be added to entries after their initial publication.
the story so far
unfutz: toiling in almost complete obscurity for almost 1500 days
2005 koufax awards


Carpetbagger Report
*Crooks and Liars*
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2004 koufax winners
2003 koufax award
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the proud unfutz guarantee
If you read unfutz at least once a week, without fail, your teeth will be whiter and your love life more satisfying.

If you read it daily, I will come to your house, kiss you on the forehead, bathe your feet, and cook pancakes for you, with yummy syrup and everything.

(You might want to keep a watch on me, though, just to avoid the syrup ending up on your feet and the pancakes on your forehead.)

Finally, on a more mundane level, since I don't believe that anyone actually reads this stuff, I make this offer: I'll give five bucks to the first person who contacts me and asks for it -- and, believe me, right now five bucks might as well be five hundred, so this is no trivial offer.

original content
© 2003-2008
Ed Fitzgerald


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but credit all you take.

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