Monday, January 02, 2006

The purported imperial presidency

Bush signed the Defense Dept supplementary authorization on Friday (note the timing), adding a little statement about how he intends to interpret several of its provisions out of existence, including the requirement that Congressional committees be informed in advance of any future spying programs, and the McCain amendment against torture, citing in each case “the President’s constitutional authority as Commander in Chief.” He says he might choose to inform Congress about programs “as a matter of comity,” just being neighborly-like, but then again he might not.

And on the McCain amendment, he says, “the executive branch shall construe Title X not to create a private right of action” and “to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus.” What he’s doing here is claiming the ability to interpret laws to mean things he knows they were not intended to mean, thus taking powers which constitutionally belong to both the legislative and the judicial branches. Note the imperial arrogance in this sentence:
Also, the executive branch shall construe sections 8106 and 8119 of the Act, which purport to prohibit the President from altering command and control relationships within the Armed Forces, as advisory, as any other construction would be inconsistent with the constitutional grant to the President of the authority of Commander in Chief.
“Purport” (he uses this term in a similar manner 6 times) means he knows that he is not simply creatively interpreting the intent of Congress, but turning it inside out, rejecting the clear intent of a bill he has nevertheless signed. He can’t do that. He can sign or he can veto, that’s it.

His father tried to pull much the same stunt in 1990. After years of presidents trying to get a line-item veto, Bush the Elder’s people announced one day that the president already had such a power, which no one had ever noticed before – possibly it fell behind a filing cabinet for 200 years, you know how those things happen – and he could sign budget bills while stating that he would choose to ignore some of its provisions. So Bush signed a State Dept authorization bill while announcing that he would ignore several of its provisions (denying funds for the Middle East peace process if any PLO officials known to have participated in terrorism against an American were involved, barring from the US any representatives to the UN who had engaged in espionage against the US, etc). The ElderBushies were sending up a trial balloon, which didn’t go over well and since they never tried to act on their chimeral line-item vetoes, nothing came of it.

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