Congressional leaders let loose a bipartisan roar in May after the first-ever FBI raid at a legislative member’s office. But – with exceptions – they’ve been passive as President Bush breaks all records for ignoring Congressional mandates.
Bush has vetoed just one bill in his nearly six years in office. But he has, in effect, line-item vetoed more than 800 items in more than 100 bills he’s signed.
The problem is, line-item vetoes are unconstitutional – and Bush’s use of so-called “signing statements” to impose them undercuts Congress’s constitutional powers.
When a president vetoes a bill, Congress has the power to override his action with two-thirds votes in the House and Senate.
But when a president signs a bill into law and then decides that he will ignore elements of it, he nullifies that override power.
Bush is on track to have the second-lowest veto record of any two-term president – Thomas Jefferson vetoed no bills at all, and George Washington, just two – but Bush already has far surpassed all the presidents before him in canceling laws with which he disagrees.
In July, the president of the American Bar Association decried the practice as “a threat to the Constitution and the rule of law.”
An ABA task force, citing groundbreaking reporting by The Boston Globe, cited these as just a few of the laws that Bush has said he will not enforce: a ban on the use of U.S. troops in combat in Colombia, various requirements that federal agencies submit reports to Congress, the McCain amendment banning the use of torture and two bills forbidding military intelligence from using information obtained in violation of the Fourth Amendment.
Whether Congress should have passed all these laws in the first place is debatable but beside the point. It did so, and if Bush didn’t like them, he should have vetoed the bills of which they were a part in their entirety, as the constitution requires.
If a president signs a bill, the Constitution requires that he “take care that the laws be faithfully executed.”
Bush objected to some mandates as infringing upon his powers as commander in chief in wartime. In other cases, particularly where agencies were ordered to submit reports, he objected under the “unitary executive” theory whereby the president has sole power within an administration to decide how laws are executed.
And sometimes, the ABA study noted, he gave no reason whatsoever for refusing to enforce a law Congress had passed.
What’s remarkable is the difference in Congress’s reaction to this systematic assertion of executive power and the one-time raid on the Capitol Hill office of Rep. William Jefferson, D-La.
The Senate Judiciary Committee has held just one hearing on signing statements and, so far, there’s been no expression of outrage from any Republican leader, although Democrats have protested.
After the Jefferson raid, however, both House Speaker Dennis Hastert, R-Ill., and Democratic leader Nancy Pelosi, D-Calif., reacted with fury at the alleged violation of the constitutional principle of Separation of Powers.
In the two centuries that the U.S. Constitution has governed the land, this was the first time federal police have ever raided a Congressional office, even though dozens of members of Congress have been successfully prosecuted for corruption.
Moreover, the Justice Department showed utmost disdain for Congressional prerogatives in the way the raid was conducted – consulting no one in advance and giving the Speaker’s office only a last-minute notice.
Still, the federal courts – hopefully, the U.S. Supreme Court – ultimately will rule whether the Jefferson raid was or wasn’t a violation of the Constitution.
My guess is that it will decide that a member cannot hide behind either the Speech and Debate clause or the doctrine of Separation of Powers to conceal evidence in a criminal case.
Jefferson has not been indicted, but aides of his have pleaded guilty to assisting him in a bribery scheme and Justice reported recovering $90,000 in cash in Jefferson’s home freezer.
Much as the Supreme Court declared that Richard Nixon could not use Executive Privilege to suppress criminal evidence, the Court is unlikely to allow members of Congress to hide incriminating documents among their protected legislative records.
Meanwhile, however, there is unlikely to be any judicial remedy for Bush’s profligate use of signing statements. The Supreme Court ruled during the Clinton administration that the Constitution’s Presentment Clause barred Congress from giving the president line-item veto authority. Bush is exercising it anyway.
The ABA recommended that Congress pass a law giving parties injured by Bush’s action standing to sue and Senate Judiciary Chairman Arlen Specter, R-Pa., has suggested that Congress give itself power to sue the executive.
However, there’s no move in this Republican Congress to seriously challenge Bush. If Democrats took control, they might outlaw signing statements, but Bush could veto the bill. Or he might sign it – and ignore it.
The danger, said the ABA, is that “a president could contrive a constitutional excuse to decline enforcement of any law he deplored, and transform his qualified veto into a monarch-like absolute veto.” It’s a danger Congress should confront.
(Morton Kondracke is executive editor of Roll Call, the newspaper of Capitol Hill.)
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