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Sunday, April 30, 2006

Constitutional Crisis

by digby

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.


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.


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 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.

At what point does this country begin to recognise that we are in the midst of a constitutional crisis?

Somebody asked Howard Dean the other day whether he thought Bush should be impeached and I wished that he had answered by pointing out that the Republicans lowered the bar so low that it's difficult to see how he could NOT be impeached. Let's take a trip down memory lane, shall we, and revisit what House Manager and head of the judiciary committee, Henry Hyde, had to say about the "rule of law" just eight years ago:

The rule of law is no pious aspiration from a civics textbook. The rule of law is what stands between us and the arbitrary exercise of power by the state. The rule of law is the safeguard of our liberties. The rule of law is what allows us to live our freedom in ways that honor the freedom of others while strengthening the common good.


Senators, the trial is being watched around the world. Some of those watching, thinking themselves superior in their cynicism, wonder what it's all about.

But others know, political prisoners know, that this is about the rule of law, the great alternative to arbitrary and unchecked state powers. The families of executed dissidents know that this is about the rule of law, the great alternative to the lethal abuse of power by the state. Those yearning for freedom know this about the rule of law -- the hard, one structure by which men and women can live by their God-given dignity and secure their God-give rights in ways that serve the common good.

Unless, of course, the president is a Republican who is creating a new constitutional theory of presidential infallibility. Henry doesn't seem to have a problem with that. But then, he pretty much said it then:

Senators, as men and women with a serious experience of public affairs, we can all imagine a situation in which a president might shade the truth when a great issue of national interest or national security is at stake. We've been all over that terrain.

We know the thin ice on which any of us skates when blurring the edges of the truth for what we consider a compelling, demanding public purpose.

Morally serious men and women can imagine the circumstances at the far edge of the morally permissible when, with the gravest matters of national interest at stake, a president could shade the truth in order to serve the common good.

But under oath for a private pleasure?

That is what the leadership of the GOP believes. We are watching it in action. A president can be impeached for lying about a private sexual matter but "morally serious men and women" understand that a president could "shade the truth" in order to serve the common good.

Are we all clear on how this works now? Lying about fellatio leads to lethal abuse of power by the state. Flatly refusing to obey the laws he signed and lying about national security serves the common good. This is your modern Republican party in a nutshell: A dictatorship of puritanical busybodies.

As I watched the White House Correspondents dinner this morning, I couldn't help thinking about all those shrieking harpies and stone faced journalists who spent months pursuing an impeachable crime in president Clinton's pants. It was one of the most hallucinatory events in modern history --- shocking, freakish and bizarre. They believed along with Henry Hyde that this was the most serious of offenses --- so serious that it merited removal from office.

Here's an example of how the White House press corps functioned during the 90's when confronted with purported lawlessness on the part of the president:

According to Starr himself, when the Monica Lewinsky scandal broke on Jan. 21, 1998, Starr's top deputy, Jackie Bennett, spent the day talking "extensively" with a handful of reporters, including ABC's Judd, the one TV reporter on the shortlist at Starr's office...On Jan. 25, 1998, Judd appeared on ABC's "This Week" and reported, "Several sources have told us that in the spring of 1996, the president and Lewinsky were caught in an intimate encounter in a private area of the White House." The revelation set off a month's worth of cable TV chatter, but the report that Clinton and Lewinsky were found out proved to be fictitious.

Or how about Michael Isikoff who wrote:

"I was convinced Clinton was a far more psychologically disturbed individual than the public ever imagined."

This one was particularly good:

MATTHEWS: And also I’m told today that one of the reasons Republicans are voting for impeachment is that they know more than we do. There’s more in this report that’s over at the Ford Building on Capitol Hill that contains dirty stuff about this president that for whatever reason wasn’t formally released but is apparently infecting the thinking of a lot of Republicans and a lot of the borderline guys are gonna vote for impeachment tomorrow because of what they’ve read

That was then. This is now:

MATTHEWS: Bob, can you promise that if the Democrats win the majority of House seats this fall, they get to the 218 magic number, that they will not use the subpoena power to go after the president?

Something is very wrong with our political system. And part of what is wrong is the political press corpse who are so insular and socially embedded with the players that they can't see how this looks to us rubes outside the beltway.

I'm grateful that at least some reporters are coming around on this story. It's long overdue (although I suspect that the administration's antipathy for unapproved leaks might have something to do with it) But you really have to wonder why they were so rabidly and openly anti-Clinton, to the point of trying to affirmatively help the Republicans drive him from office, while this time trying to extract promises that the Democrats won't hold Bush accountable for anything he has done.

Today we are in a real constitutional crisis and it seems the press are only belatedly beginning to focus. And, once again, the American people are way ahead of these elitist snobs who always seem to misjudge what they really care about.

Glenn Greenwald has more on this.