Critics question Bush’s executive power grab

Dan Devine

In testimony heard by the U.S. Senate Judiciary Committee last week, Harvard law professor Charles J. Ogletree, Jr. and others questioned whether President George W. Bush has repeatedly attempted to expand his executive powers without oversight by the legislative or judicial branches of government.

The Committee convened to hear testimony regarding the Bush administration’s frequent use of “signing statements,” which lay out the president’s interpretation of bills he signs into law. In addition to directing government officials on how to implement new laws, the statements note which aspects of those laws Bush believes interfere with his constitutional powers.

This effectively enables the president to declare himself exempt from obeying certain provisions of laws even as he signs them, without having to veto legislation or find other ways to challenge it.

During his six years in office, President Bush has applied signing statements to over 750 new laws, or more than 10 percent of the bills he has signed. However, he has never vetoed a bill, meaning that Congress has never had an opportunity to overrule his judgments.

In his testimony, Ogletree clarified the danger that this approach presents to the checks and balances of the American democratic system.

“The basic question posed by these actions is whether the President is using the signing statement in order to expand the authority of the executive branch at the expense of the legislative branch,” said Ogletree, Harvard’s Jesse Climenko Professor of Law and executive director of the Charles Hamilton Houston Institute for Race & Justice.

“In other words, is [Bush] using the signing statement as a way to declare a law non-binding, without having to face the public scrutiny that comes with a veto, or the possibility of a legislative override?”

While he testified on his own behalf in response to an invitation from the Judiciary Committee, Ogletree is serving on a recently formed American Bar Association (ABA) task force investigating whether Bush’s signing statements represent a breach of the separation of powers among the three branches of American government. Ogletree said the task force intends to make its report, which will include recommendations on how legislators can address this issue, available at the end of July.

Sen. Patrick Leahy of Vermont, the ranking Democrat on the Judiciary Committee, told reporters that Bush’s use of signing statements is “an egregious violation of the law and the Constitution” that has been allowed by a “rubber-stamp [Republican] Congress” refusing to stand up for either.

However, one of the president’s most vocal opponents on this issue has been Judiciary Committee Chairman Arlen Specter, who has said he is “totally opposed” to Bush’s policy. And in comments made to reporters prior to the beginning of the hearings, the Pennsylvania Republican intimated that he is not alone.

“I think there is a very strong sense in the Congress in opposition to signing statements,” Specter said. “We want to get a fuller statement from the president about what he thinks his authority is here.”

The sheer volume of constitutional challenges levied by the Bush administration in the form of signing statements indicates that his perception of executive authority may differ drastically from the legislative view. If that is the case, Ogletree said in an interview, this issue might leap from committee hearings to the High Court.

“In light of the U.S. Supreme Court’s recent ruling in Hamdan v. Rumsfeld,” in which the Supreme Court ruled that the president had overstepped his constitutional powers by trying enemy combatants in military tribunals rather than traditional civilian courts, “it seems clear that there are some checks on executive power,” Ogletree said.

“I think this might finally spur the legislative branch of our government to seriously investigate the possibility of legal actions against the executive branch to limit the application of signed statements.”

Indeed, Specter said Sunday that he is “seriously considering” filing legislation to give Congress the legal standing to sue Bush, believing that such a suit would enable the Supreme Court to determine whether the president’s numerous objections have any constitutional weight.

Regardless of whether or not litigation arises from the hearings, Ogletree cited two potential outcomes that could create opportunities for judicial review and significant political collisions.

“One, the legislative branch has the power of the purse,” Ogletree explained. “If they disagree with the way that the executive branch has exercised its authority in the use of signing statements, Congress can refuse to approve money for the president’s initiatives, which will either require him to work with them by not using signing statements, or create a contested issue for possible consideration in the Supreme Court.”

The other, perhaps less likely possibility suggested by Ogletree calls for Congress to return to a schoolyard ethic of giving as good as you get: by deciding not to enforce any laws proposed by the executive branch.

“That, too, might create a constitutional crisis which will cause further consideration,” Ogletree said.