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Friday, March 24, 2006

The Lawless President

George W. Bush thinks that any legislation from Congress is only what he makes of it. Anyone arguing otherwise is either misinformed or lying. For this, George W. Bush is the biggest threat to our nation since King George.

George Bush again made his disdain for the rule of law clear when he signed the reauthorization of the USA PATRIOT Act. As Presidents have done in the past, Bush attached a Signing Statement describing his interpretation of the law. Unlike past Presidents, George W. Bush has not used these Signing Statements to give his interpretation of ambiguous parts of the law but rather to assert that he will freely and openly violate the law. He justifies this using a ludicrous reading of part the Constitution while conveniently ignoring another part -- the part where he has to faithfully execute the laws of Congress. Bush has taken the use of a signing statement, a rare tool used only when necessary to clarify ambiguous legislation, and has transformed it into an instrument of tyranny. Before you think that I am guilty of hyperbole, consider this: From President Monroe through Clinton, 332 signing statements were issued. Bush is already up to 435. To Bush, the signing statement is a way to implement his radical "unitary executive" agenda that undermines our democracy and pushes this great Nation towards de-facto tyranny.

Under the reauthorized PATRIOT Act, the executive must provide information to Congress, on a specific timetable, as to how often the FBI uses its expanded powers under the law. This makes sense. Congress requires this study in order to know if the additional power that they have granted the Executive is truly justified. In other words, Congress requires the Executive to provide this information so that Congress can properly do its Constitutional duties -- to legislate.

Bush's signing statement states that he will not comply with the reporting requirements if he feels that it would "impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive's constitutional duties." This essentially says "Thanks for the increased powers, I'll take 'em, but I'm not telling you how I use them so that Congress can know whether its legislation is proper."

The highly flawed, anti-democratic Unitary Executive theory is to blame. This theory posits, in part, that the executive can determine the scope of the power granted to him in the Constitution. The real problem here is that Bush is clearly violating the intent of Congress based only upon the legal interpretation of his counsel, who are by their very nature advocates seeking to gain as much as they can for their client. Such is the inevitable nature of attorneys. That's why here in the USA we have a judiciary branch that interprets the law. That way an independent branch of government interprets the scope of the constitutional powers given to the other branches of government, which also works as a check on the power of the other branches. The judiciary, of course, gets to interpret the scope of their own powers, but the judiciary's scope -- judicial review -- was long ago defined, for the most part. Further, the power of appointment along with other checks keep the judiciary in line. My point is that if the Executive can interpret the scope of his own power, then White House counsel will continue to push that line because all attorneys want to interpret the law in the light that most favors their client. The end result of this pushing will be de-facto tyranny. The judiciary and the Congress will exist only as tokens and will be subject to the absolute power of the "Unitary Executive."

The Unitary Executive theory only works if you accept that the Framers intended the scope of the executive's power to be determined by appointed White House counsel who owe their jobs to the President. It only works if you ignore Article II, Section III of the Constitution that states that the Executive "shall take Care that the Laws be faithfully executed." It only works if you think it's just and right for the President to willfully disobey laws of Congress, an offense that would put normal individuals behind bars. It only works if you think that the separation of powers which so clearly underlay our entire Constitutional democracy are somehow bad.

I guarantee you that the GOP and their cohorts in the Federalist Society would not be such huge supporters of the Unitary Executive theory if we had a Democratic President. It's but a partisan tactic designed for short-term political gain. But the ramifications are far too large to indulge in such schemery. New York University law professor David Golove considers this theory to be a "mind-bogglingly expansive conception" of executive power. The only way to turn back the tide and save our democracy is to oust all Republicans everywhere from office this fall. Enough is enough and the Republican Party has abused the public trust and the Constitution enough.

Finally, I leave you with this. If President Bush really believed that he needed to ignore the PATRIOT ACT's reporting provisions, he could have refused to sign the law. The veto power is an actual Constitutional power granted to the President and is a way for him to protect his interests in "foreign relations, national security, the deliberative process of the executive, and the performance of the executive's constitutional duties." The reason he did not take this lawful alternative is because President Bush is the lawless President. As Bush once said (and I only wish I was making this up): "If this were a dictatorship, it'd be a heck of a lot easier, just so long as I'm the dictator."

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