Chutzpah 1, Citizens 0

Posted: Jan 15, 2006 12:05 AM

With all the whining and carping about the balance of power between this branch of government and that, why is there nary a peep about the most fundamental of constitutional balances, that between the government and the people?

Take a current news story, much blogged. The president recently signed the torture ban. But he did so with his fingers crossed. That is, he added a "signing statement" to the bill, explaining how he interpreted the new law: Quite broadly, in the context of his own expansive theory of presidential power.

Like other such statements, this wasn't a Post-It® note scribble, but a cleverly written legal document designed to influence enforcement as well as future legal interpretation. Here's the statement:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

Whew. The trouble with this verbiage is that by pretending that his designation of "Commander in Chief" gives him sole discretion on how to carry out an anti-terrorism strategy (it doesn't), the president bites off more than we want him to chew. There's no "rule of law" here. It's just rule by one man. Or set of men. Sure we can find precedent for this practice, but unrestrained government and coercive power have lots of precedent.

Those of us who support the Constitution have a different purpose: to fight precedents like that with a better notion, limited government.

It turns out that the president has been doing this for some time. Over 500 times. It also turns out that it's not a new idea. One Sam Alito, then an advisor to President Ronald Reagan, urged his president to use the practice. Presidents George H.W. Bush and Bill Clinton also used signing statements. But our current president has been most prolific. And daring.

Most of the current talk about the administration's signing statements has focused on the balance of competing powers in the government. Was Sam Alito right way back in the Reagan days, when saying that these statements amounted to a way to restore some balance? You see, the judicial branch had all those words from the legislative branch to look at, when it came to reviewing a law. By adding an interpretive statement, the administration might influence the judiciary. So far, in actual cases of review, little weight has been given to the statements.

So what should we make of this new wrinkle? Well, first let's put it in some context. Every quarter century or so a new wrinkle appears.

The big change during the last bout was Congress's taking from the Presidency the power to impound legislated funds. Since at least Jefferson's time, presidents had practiced a tradition — unfortunately not specified in the Constitution — of "impounding" money designated by Congress, ie., simply not spending it. Nixon used this power to cut back on the landslide of spending by an out-of-control Democratic Congress. But his illegal maneuvers vis-à-vis the Watergate break-ins gave Congress the Mandate of Heaven it needed to pull one of the most amazing coups in constitutional history: the Congressional Budget and Impoundment Control Act of 1974. This act did two things, actually. It provided a new accounting scheme that hides (to this day) the true nature of government spending, and it took away from the presidency the ability to check the worst of Congress's spending practices.

Were Congress to simply repeal the 1974 act, the president could constitutionally check Congress in a line-item veto fashion.

Much like the president is now doing with signing statements. Instead of vetoing the whole bill, he "interprets" the parts he deems unconstitutional (or that he simply doesn't like) as he sees fit, and directs the executive branch's bureaucracy to obey his directives, not Congress's.

Give President Bush high marks in the Chutzpah Department.

The trouble is, unlike a proposed line-item veto, and unlike the now defunct practice of impoundment, these signing statements are not restoring or shoring up the foundational balance of the Constitution. They are not decreasing the size and scope of government. They seem to be doing the opposite. Increased surveillance, imprisonment without due process — these powers come at great expense. For all our hopes that only suspicious "furriners" will be singled out, the history of government suggests that this hope is naive in the extreme.

If you support the idea of a limited republic, then the president's claims to unchecked authority will at least give you qualms. If you are Vice President of the United States, however, you will defend it: "I believe in a strong, robust executive authority, and I think that the world we live in demands it," Vice President Cheney was recently quoted. "[T]he actions that we've taken are totally appropriate and consistent with the constitutional authority of the president."

This strikes me as preciously close to nonsense. If you don't like the idea of limited and enumerated powers, as specified in the Constitution, maybe you should have the decency to support an amendment to the Constitution, repealing the plain words you don't like.

But we know why this won't fly. No politician I know of who despises actual constitutional principles dares speak directly against them. Politicians instead twist the words' meanings. This is not just a problem with the current administration. Talk to any Democratic politician for five minutes. You'll see the real attitude towards the Constitution: praise it outright while undermining it in every action.

The Framers of our Constitution established competing branches of government so that each branch could provide a check on the power of the other branches. They understood that the more unchecked government power is, the more checked the freedom of individual American citizens will be.

The bottom line for Americans is not the precise distribution of powers in the government, but the effective checking of the powers themselves, so that we can live free of outrageous threat or undue burdens.