Stopping the Imperial Presidency

In the first week back from its July 4th recess, the Senate finally started floor debate on the 2008 Defense Authorization legislation (H.R. 1585) that tells the Pentagon the categories and programs Congress intends to fund for the fiscal year.

At mid-week, some 40 amendments had been or were expected to be filed with the Senate clerk. Of these, one-third address deployment parameters (e.g., frequency of tours in the war zones), withdrawal of U.S. troops from Iraq, benchmarks, or revoking authority to deploy troops to Iraq.

One amendments that does none of these – and therefore may be overlooked in the inevitable rancid rhetoric of “cut and run,” “stay the course,” “support the troops” – is amendment 2021 co-sponsored by Senators Arlen Specter (R-PA) and John Kerry (D-MA). This amendment takes on the president’s extensive use of so-called “signing statements” to subvert the will of the American people, as expressed through their representatives in Washington.

Presidents since James Madison have appended these notices to legislation when they intend to interpret a provision in a statute differently from congressional intent. But, as the non-partisan Government Accountability Office reported in mid-June 2007, Bush has made signing statements a common practice – virtually rewriting legislation to conform to his “interpretation” of Congress’ intent. In 11 of the 12 appropriations bills for Fiscal Year 2006, Bush issued signing statements affecting 160 provisions of law. His justification? The provisions were unconstitutional.

The last time I checked the Constitution, the power to decide whether a provision of law is unconstitutional belongs to the courts, not the executive.

In fact, George Bush’s entire term of office has been one unending attempt to make an end-run around Congress’ legislative power as detailed in Article I of the Constitution. The Founding Fathers provided in Article II of the Constitution the president’s remedy when he disagrees with Congress. Under Article II, should the president object to provisions of legislation passed by Congress, he can veto the legislation, thereby challenging Congress to muster a two-thirds super-majority in each House to override the president’s actions.

Underlying the entire thrust of the Bush “imperial” maneuver is the highly questionable theory, often proclaimed by Bush to be inherent in the Constitution, of the “unitary executive.” The White House contends that the Founders regarded the president’s viewpoint on what a law means to be of equal weight to the viewpoint of the Congress as legislation requires the president’s signature to become law. The president announces his interpretation via the presidential signing statement in which he singles out those provisions he will not enforce.

In effect, Bush is claiming a non-existent power: the line-item veto. Congress has never passed a statute giving the president this power, and the courts have rejected a related concept that Richard Nixon tried: sequestering money voted by Congress for programs that Nixon opposed but were included in “must-have” legislation the president signed.

The Specter-Kerry amendment is straightforward: no judicial proceeding in the United States shall take notice of or in any way rely on presidential signing statements as the source of governmental authority in any case that comes before the court.

If included in the final bill sent to the White House, will this have any effect? Recent history is not encouraging.

In 2006, an amendment by Senator John McCain (R-AZ) to the Defense Department Emergency Supplemental spending bill barred the use of torture by military interrogators. The amendment stated that only another law passed by Congress could repeal, supersede, or modify the McCain amendment. On signing the bill, Bush blithely ignored the McCain proviso, stating he would interpret the law so as to properly “supervise the unitary executive branch” as commander in chief and “consistent with the constitutional limitations on the judicial power.”

Thus, the need for the Specter-Kerry provision in the 2008 military authorization bill. The Senate can and should reassert the separation of powers set out in the U.S. Constitution and make crystal clear that Congress will not stand for an Imperial Presidency. In that sense, Congress needs to act now to put the president in his place, which is a place just right for any and every president of our democracy, including George Bush.