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2007-07-29 17:52:54 UTC
Atlanta Journal-Constitution
Editorial
Bush asserts a king's prerogative
With showdown over Iraq looming, president courts constitutional
crisis
In theory, President Bush is sworn to faithfully execute the laws of
the United States. In reality, he has treated federal law as a menu
from which he picks and chooses those laws he likes, while ignoring
those that do not suit his taste.
That royalist attitude may soon inspire a constitutional confrontation
unrivaled in U.S. history.
At the moment, the president's penchant for ignoring laws he finds
inconvenient is best displayed in the standoff with Congress over
subpoenas. Congress has demanded the sworn testimony of White House
officials as part of an investigation into the Justice Department; the
White House is refusing to allow that testimony, citing executive
privilege.
In itself, that conflict is hardly unusual; it continues a traditional
contest of wills between presidents and Congress that goes back to the
earliest days of the Republic. The conflict is so standard that
federal law lays out a clear process for resolving it. If witnesses
refuse to honor congressional subpoenas and are found in contempt, the
matter is referred to the U.S. attorney from Washington, D.C., "whose
duty it shall be to bring the matter before the grand jury for its
action."
The wording of that law doesn't give the U.S. attorney any leeway. It
doesn't say that he or she "can" or "may" bring it before the grand
jury. It says he or she "shall" bring the matter to the grand jury, so
the courts can resolve the conflict between the other two branches of
government.
Bush, however, claims the right to ignore that law. He not only
refuses to allow his aides to testify, he refuses to allow the U.S.
attorney to refer the matter to the grand jury, as the law says he
must. In essence, Bush is denying Congress access to the courts as an
impartial arbiter of their dispute.
Now, in most other eras in American history, that would be the making
of a serious confrontation between the congressional and executive
branches. But in the Bush administration, it's a minor prelude to what
may be coming next.
For months now, Congress has been debating ways to force a change of
course in Iraq. Under the Constitution, the president is commander- in-
chief, but Congress has the power of the purse - the right to fund or
refuse to fund government activities. That means that the most obvious
means of forcing a change of policy in Iraq is through the
appropriations process. Congress could chose to fund military
operations in Iraq only until a certain date, or only under certain
conditions.
The Bush administration argues strongly against taking that course, as
is its right. However, the White House also claims that any provision
that sets a date certain for withdrawal would "infring[e] on the
president's constitutional authority as commander-in-chief." In other
words, the White House believes that any law telling the president
what to do in Iraq would be unconstitutional, and thus could be
ignored.
The administration has already refused to abide by numerous other
provisions of law that it considered an unconstitutional assault on
its powers, with the law regarding congressional subpoenas only the
most recent. And within the administration, that a hard-nosed approach
toward executive power has been championed most strongly by Vice
President Dick Cheney.
Cheney did not come to that position lately. He expressed similar
opinions 20 years ago, when he was still a member of Congress from
Wyoming and vice chairman of a committee investigating the Iran-Contra
scandal.
The heart of that scandal involved the Boland Amendment, passed by
Congress and signed into law by President Ronald Reagan. That
provision - a clear case of Congress exercising its power of the purse
- barred the U.S. government from sending financial or military aid to
the Contra guerrillas, who were trying to overthrow the Communist
government of Nicaragua. When a cabal inside the Reagan White House
arranged secret means to fund the Contras anyway, in clear violation
of federal law, a scandal was born.
Most congressmen, Republican and Democratic alike, believed the White
House had broken the law by funding the Contras. Cheney did not. In a
minority committee report, he and others argued that the right to
conduct foreign policy belongs exclusively to the president, and the
Constitution "does not permit Congress to pass a law usurping
presidential power."
"Congressional actions to limit the president in this area therefore
should be reviewed with a considerable degree of skepticism," the 1987
report argued. "If they interfere with core presidential foreign
policy functions, they should be struck down."
"The power of the purse ... is not and was never intended to be a
license for Congress to usurp presidential powers and functions," the
report concluded.
That attitude clearly animates the Bush administration in its dealings
with Congress on lesser issues, and if applied to Iraq could have
enormous ramifications. It provides the philosophical foundation - a
foundation poured, set and cured over the previous six years - for the
administration to continue trying to fight in Iraq no matter what
restrictions Congress may choose to enact. And that would set the
stage for a whole range of nightmares, up to and including impeachment.
Editorial
Bush asserts a king's prerogative
With showdown over Iraq looming, president courts constitutional
crisis
In theory, President Bush is sworn to faithfully execute the laws of
the United States. In reality, he has treated federal law as a menu
from which he picks and chooses those laws he likes, while ignoring
those that do not suit his taste.
That royalist attitude may soon inspire a constitutional confrontation
unrivaled in U.S. history.
At the moment, the president's penchant for ignoring laws he finds
inconvenient is best displayed in the standoff with Congress over
subpoenas. Congress has demanded the sworn testimony of White House
officials as part of an investigation into the Justice Department; the
White House is refusing to allow that testimony, citing executive
privilege.
In itself, that conflict is hardly unusual; it continues a traditional
contest of wills between presidents and Congress that goes back to the
earliest days of the Republic. The conflict is so standard that
federal law lays out a clear process for resolving it. If witnesses
refuse to honor congressional subpoenas and are found in contempt, the
matter is referred to the U.S. attorney from Washington, D.C., "whose
duty it shall be to bring the matter before the grand jury for its
action."
The wording of that law doesn't give the U.S. attorney any leeway. It
doesn't say that he or she "can" or "may" bring it before the grand
jury. It says he or she "shall" bring the matter to the grand jury, so
the courts can resolve the conflict between the other two branches of
government.
Bush, however, claims the right to ignore that law. He not only
refuses to allow his aides to testify, he refuses to allow the U.S.
attorney to refer the matter to the grand jury, as the law says he
must. In essence, Bush is denying Congress access to the courts as an
impartial arbiter of their dispute.
Now, in most other eras in American history, that would be the making
of a serious confrontation between the congressional and executive
branches. But in the Bush administration, it's a minor prelude to what
may be coming next.
For months now, Congress has been debating ways to force a change of
course in Iraq. Under the Constitution, the president is commander- in-
chief, but Congress has the power of the purse - the right to fund or
refuse to fund government activities. That means that the most obvious
means of forcing a change of policy in Iraq is through the
appropriations process. Congress could chose to fund military
operations in Iraq only until a certain date, or only under certain
conditions.
The Bush administration argues strongly against taking that course, as
is its right. However, the White House also claims that any provision
that sets a date certain for withdrawal would "infring[e] on the
president's constitutional authority as commander-in-chief." In other
words, the White House believes that any law telling the president
what to do in Iraq would be unconstitutional, and thus could be
ignored.
The administration has already refused to abide by numerous other
provisions of law that it considered an unconstitutional assault on
its powers, with the law regarding congressional subpoenas only the
most recent. And within the administration, that a hard-nosed approach
toward executive power has been championed most strongly by Vice
President Dick Cheney.
Cheney did not come to that position lately. He expressed similar
opinions 20 years ago, when he was still a member of Congress from
Wyoming and vice chairman of a committee investigating the Iran-Contra
scandal.
The heart of that scandal involved the Boland Amendment, passed by
Congress and signed into law by President Ronald Reagan. That
provision - a clear case of Congress exercising its power of the purse
- barred the U.S. government from sending financial or military aid to
the Contra guerrillas, who were trying to overthrow the Communist
government of Nicaragua. When a cabal inside the Reagan White House
arranged secret means to fund the Contras anyway, in clear violation
of federal law, a scandal was born.
Most congressmen, Republican and Democratic alike, believed the White
House had broken the law by funding the Contras. Cheney did not. In a
minority committee report, he and others argued that the right to
conduct foreign policy belongs exclusively to the president, and the
Constitution "does not permit Congress to pass a law usurping
presidential power."
"Congressional actions to limit the president in this area therefore
should be reviewed with a considerable degree of skepticism," the 1987
report argued. "If they interfere with core presidential foreign
policy functions, they should be struck down."
"The power of the purse ... is not and was never intended to be a
license for Congress to usurp presidential powers and functions," the
report concluded.
That attitude clearly animates the Bush administration in its dealings
with Congress on lesser issues, and if applied to Iraq could have
enormous ramifications. It provides the philosophical foundation - a
foundation poured, set and cured over the previous six years - for the
administration to continue trying to fight in Iraq no matter what
restrictions Congress may choose to enact. And that would set the
stage for a whole range of nightmares, up to and including impeachment.