MB Civic

By Scot Lehigh  |  May 2, 2006  |  The Boston Globe

HAS GEORGE W. Bush come to believe he’s king?

That’s the question that springs to mind upon reading Charlie Savage’s front-page report in Sunday’s Globe detailing the president’s sotto voce assertion that he can disregard laws if he thinks they impinge on his constitutional powers.

That novel claim resides in the ”signing statements” the administration issues outlining its legal interpretation of laws the president has signed — interpretations that often run contrary to the statute’s clear intent.

As Savage reports, Bush has registered hundreds of those reservations, adding them to statutes on subjects ranging from military rules and regulations to affirmative action language to congressionally mandated reporting requirements to protections Congress has passed for whistle-blowers to legal assurances against political meddling in government-funded research.

Bush’s position reduces to this: The president needn’t execute the laws as they are written and passed, but rather, has the right to implement — or ignore — them as he sees fit. (Were it not for our pesky written Constitution, perhaps George II could take his cue from Charles I, dismiss Congress, and rule — ah, govern — without any legislative interference whatsoever.)

Even members of the president’s own party have balked at that claim.

After Republican Senator John McCain succeeded in passing a ban on the torture of detainees in US custody, forcing it upon an unwilling White House, the president’s signing statement made it clear he thought he could disregard the law if he deemed it necessary. That brought a pointed rebuke from McCain and fellow Republican Senator John Warner.

Other presidents have periodically appended signing statements to legislation, setting the objectionable precedent that Bush has followed here. But as Savage reports, this president has taken it to a new level, issuing such statements on more than 750 laws, or on more than 10 percent of the bills he has signed.

Rendering Bush’s assertion more worrisome is this reality: Because so much of what this administration does is shrouded in secrecy, it’s hard to know which laws are being followed and which are being ignored.

That makes it difficult for matters to ripen into a court challenge, notes Boston attorney Harvey Silverglate. ”He is setting it up so that the people hurt by what this administration is doing are unable to get to court, because it is secret,” Silverglate says.

We certainly do know that this president is ready to ignore even established laws if he finds them too cumbersome. Although the Foreign Intelligence Surveillance Act of 1978 prohibits warrantless eavesdropping on Americans, Bush has authorized such snooping. In trying to justify that, the administration has claimed that Congress’s post-Sept. 11 resolution authorizing force against terrorists somehow imparted the authority for warrantless wiretapping.

That’s farfetched, and members of the president’s own party have said as much.

Congressional figures of both parties have signaled a willingness to consider the president’s concerns with a wiretap-approval process that is already all but pro forma.

The White House, however, has displayed little interest in meaningful compromise.

Bush has a recourse if he doesn’t agree with a newly passed law, of course: He can veto it. (So far he hasn’t exercised that prerogative even once.)

But the president shouldn’t be allowed to quietly disregard or reinterpret provisions of a law he dislikes, for in doing so, he is not protecting his own authority, but rather usurping the legitimate power of Congress. Further, his assumption that it is within his purview to decide whether a law is constitutional treads on ground that is the clear province of the Supreme Court.

Thus far, the Republican congressional leadership has been dismayingly compliant. But one Republican unwilling to let Bush interpret the law as he sees fit is Senator Arlen Specter, chairman of the Senate Judiciary Committee.

Specter, who is pushing legislation to have the closed-door FISA court rule on the constitutionality of Bush’s wiretapping program, noted last week that he had filed — but would not seek an immediate vote on — an amendment to block funding for any domestic eavesdropping until the administration provides Congress with much more information.

It speaks volumes about the attitude of this White House that a member of the president’s own party would have to make such a move to protect bedrock constitutional principles.

Yet it will probably take something much more dramatic than Specter’s tentative threat to remind George W. Bush that he’s president, and not king.