BrothersJudd Blog: GOVERNMENT AS THE FOUNDERS FORESAW IT

From June 27, 2006

Bush Ignores Laws He Inks, Vexing Congress (Laurie Kellman, AP, 6/27/06)

A bill becomes the rule of the land when Congress passes it and the president signs it into law, right?

Not necessarily, according to the White House. A law is not binding when a president issues a separate statement saying he reserves the right to revise, interpret or disregard it on national security and constitutional grounds.

That's the argument a Bush administration official is expected to make Tuesday before the Senate Judiciary Committee, chaired by Arlen Specter, R-Pa., who has demanded a hearing on a practice he considers an example of the administration's abuse of power....

But Specter and his allies maintain that Bush is doing an end-run around the veto process. In his presidency's sixth year, Bush has yet to issue a single veto that could be overridden with a two-thirds majority in each house.

Instead, he has issued hundreds of signing statements invoking his right to interpret or ignore laws on everything from whistleblower protections to how Congress oversees the Patriot Act.

From Federalist 51:

TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention....

It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal. But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

The grant of power to the President in the Constitution is broad. "The executive Power shall be vested in a President of the United States of America." (Article. II, Section. 1). Nonetheless, as the federal government is designed, Congress is meant to be the driving force of the government. Congress sets taxes and controls spending. The Senate has the right to reject judges, high administration officials and treaties. The President has very little express power, on the other hand, to interfere with the workings of the legislature. The veto is his only express tool and it is relatively weak.

And yet, from George Washington on, we have had some very strong Presidents and very weak Congresses.

The reasons for this are well-rehearsed. The President is elected by the nation while Congress is parochial. The President has almost plenary powers when it comes to defense and foreign affairs. The President has the power of the bully pulpit; nicely captured by the annual spectacle of the State of the Union speech -- the President in the well of the House, surrounded by all the symbols of the glory of the United States, carrying out a constitutional duty -- being followed by a reactive, petty political response. Less charitably, the Presidency allows for, indeed almost demands that, the people invest their hopes in a strong leader; the proverbial man on a white horse. We saw this most clearly after 9/11 when George W. Bush, a divisive figure coming off a divisive election, gained the approval of 90% of the nation.

We usually celebrate the genius of our constitution by ticking off our freedoms, or our wealth, or noting the noble goals of American exceptionalism. But in reality the genius of the constitutional system is best illustrated by this trite, less-than-noble jockeying for power. The President claims some power. Congress pushes back. The Framers knew that they were not instituting a government of angels. They knew that office-holders always try to accumulate power. They therefore famously set up a system of checks and balances; one of which is that, if the President is gaining power, Congress is losing power. Congress, regardless of faction and party, is as an institution loath to lose power and will do what it can to stem the tide. Here, the signing statements are a sideshow. Both the Congress and the Administration know that those statements have no power to change legislation or the President's constitutional powers. This is just one small skirmish in the war between Congress and the President, each of whom keeps the other in check by desiring to capture as much power as possible.