[Marxism] President Bush has quietly claimed the authority to disobey more than 750 laws

abu hartal abuhartal at hotmail.com
Fri Aug 25 09:45:03 MDT 2006


While this list studies the writings of the Pioneer Fund scholar A James 
Gregor,
here is something that has not been discussed. Perhaps the discussion
should shift to Carl Schmitt rather than Gini or Mussolini or Sorel.

"President Bush has quietly claimed the
authority to disobey more than 750 laws enacted since he took office"


Bush challenges hundreds of laws
President cites powers of his office

By Charlie Savage, Globe Staff  |  April 30, 2006

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."
>
>
>
>

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