Mr. Speaker, as Benjamin Franklin left the Constitutional Convention, which had been closed to the public, a citizen asked: ``What kind of Government have you given us, Mr. Franklin?'' Franklin replied, ``A Republic, Madam, if you can keep…
Mr. Speaker, as Benjamin Franklin left the Constitutional Convention, which had been closed to the public, a citizen asked: ``What kind of Government have you given us, Mr. Franklin?'' Franklin replied, ``A Republic, Madam, if you can keep it.''
In last week's New York Review of Books, Elizabeth Drew, one of our most distinguished political analysts, discusses President Bush's ``Power Grab.'' She forcefully reminds us that, to paraphrase Franklin, the Constitution gives Congress power co-equal with the President, but only if Congress can keep it.
Drew illustrates in painful but accurate detail how Congress repreatedly has stood by and allowed Bush to erode our constitutional powers, one bit at a time.
Drew's particular focus is on President Bush's drastically expanded use of so-called ``signing statements,'' in which he asserts a statute's version he plans to follow, his own version. President Bush tries to claim the power to ``make all laws,'' as well as his constitutionally assigned role to ensure the ``laws be faithfully executed.'' He did not originate the practice, but his use of it is unprecedented in frequency, scope, and defiance of clear legislative intent. This is not a partisan issue. When President Bush reluctantly signed the recent statute banning torture, but then insisted that he would authorize non-existent exceptions, members of both parties disputed the practice.
As Drew explains, Bush's claim of ``inherent authority'' to ignore the law knows no bounds, no time frame or limiting principle. The genius of our system of government is its separation of powers and its structure of checks and balances. That structure is at risk today.
I urge my colleagues to ponder Elizabeth Drew's timely warning.
[From the New York Review of Books, June 22, 2006]
Power Grab
(By Elizabeth Drew)
During the presidency of George W. Bush, the White House
has made an unprecedented reach for power. It has
systematically attempted to defy, control, or threaten the
institutions that could challenge it: Congress, the courts,
and the press. It has attempted to upset the balance of power
among the three branches of government provided for in the
Constitution; but its most aggressive and consistent assaults
have been against the legislative branch: Bush has time and
again said that he feels free to carry out a law as he sees
fit, not as Congress wrote it. Through secrecy and
contemptuous treatment of Congress, the Bush White House has
made the executive branch less accountable than at any time
in modem American history. And because of the complaisance of
Congress, it has largely succeeded in its efforts.
This power grab has received little attention because it
has been carried out largely in obscurity. The press took
little notice until Bush, on January 5 of this year, after
signing a bill containing the McCain amendment, which placed
prohibitions on torture, quietly filed a separate
pronouncement, a ``signing statement,'' that he would
interpret the bill as he wished. In fact Bush had been
issuing such signing statements since the outset of his
administration. The Constitution distinguishes between the
power of the Congress and that of the president by stating
that Congress shall ``make all laws'' and the president shall
``take care that the laws be faithfully executed.'' Bush
claims the power to execute the laws as he interprets them,
ignoring congressional intent.
Grover Norquist, a principal organizer of the conservative
movement who is close to the Bush White House and usually
supports its policies, says, ``If you interpret the
Constitution's saying that the president is commander in
chief to mean that the president can do anything he wants and
can ignore the laws you don't have a constitution: you have a
king.'' He adds, ``They're not trying to change the law;
they're saying that they're above the law and in the case of
the NSA wiretaps they break it.'' A few members of Congress
recognize the implications of what Bush is doing and are
willing to speak openly about it. Dianne Feinstein,
Democratic senator from California, talks of a ``very broad
effort'' being made ``to increase the power of the
executive.'' Chuck Hagel, Republican senator from Nebraska,
says: ``There's a very clear pattern of aggressively
asserting executive power, and the Congress has essentially
been complicit in letting him do it. The key is that Bush has
a Republican Congress; of course if it was a Clinton
presidency we'd be holding hearings.''
The public scenes of the President surrounded by smiling
legislators whom he praises for their wonderful work as he
hands out the pens he has used to sign the bill are often
utterly misleading. The elected officials aren't informed at
that time of the President's real intentions concerning the
law. After they leave, the President's signing statements--
which he does not issue verbally at the time of signing--are
placed in the Federal Register, a compendium of U.S. laws,
which members of Congress rarely read. And they are often so
technical, referring as they do to this subsection and that
statute, that they are difficult to understand.
For five years, Bush has been issuing a series of signing
statements which amount to a systematic attempt to take power
from the legislative branch. Though Ronald Reagan started
issuing signing statements to set forth his own position on a
piece of legislation, he did it essentially to guide possible
court rulings, and he only occasionally objected to a
particular provision of a bill. Though subsequent presidents
also issued such statements, they came nowhere near to making
the extraordinary claims that Bush has; nor did they make
such statements nearly so often.
According to an article in The Boston Globe, Bush has
claimed the right to ignore more than 750 laws enacted since
he became president. He has unilaterally overruled Congress
on a broad range of matters, refusing, for example, to accept
a requirement for more diversity in awarding government
science scholarships. He has overruled numerous provisions of
congressional appropriations bills that he felt impinged on
his executive power. He has also overruled Congress's
requirement that he report back to it on how he has
implemented a number of laws. Moreover, he has refused to
enforce laws protecting whistle-blowers and providing
safeguards against political interference in federally funded
research. Bush has also used signing statements to place
severe limits on the inspectors general created by Congress
to oversee federal activities, including two officials who
were supposed to inspect and report to Congress on the US
occupation of Iraq.
The President could of course veto a bill he doesn't like
and publicly argue his objections to it. He would then run
the risk that Congress would override his veto. Instead, Bush
has chosen a method that is largely hidden and is difficult
to challenge. As of this writing, Bush has never vetoed a
bill (though he has threatened to do so in the case of a
spending bill now pending in Congress). Some of the bills
Bush has decided to sign and then ignore or subvert were
passed over his objections; others were the result of
compromises between Congress and the White House. Arlen
Specter, the Republican senator from Pennsylvania and
chairman of the Senate Judiciary Committee, told me, ``Under
the Constitution if the president doesn't like a bill he
vetoes it. You don't cherry-pick the legislation.''
Bush has cited two grounds for flouting the will of
Congress, or of unilaterally expanding presidential powers.
One is the claim of the ``inherent'' power of the commander
in chief.
Second is a heretofore obscure doctrine called the unitary
executive, which gives the president power over Congress and
the courts. The concept of a unitary executive holds that the
executive branch can overrule the courts and Congress on the
basis of the president's own interpretations of the
Constitution, in effect overturning Marbury v. Madison
(1803), which established the principle of judicial review,
and the constitutional concept of checks and balances.
The term ``unitary government'' has two different meanings:
one simply refers to the president's control of the executive
branch, including the supposedly independent regulatory
agencies such as the SEC and the FDA. The other, much broader
concept, which is used by Bush, gives the executive power
superior to that of Congress and the courts. Previous
presidents have asserted the right not to carry out parts of
a bill, arguing that it impinged on their constitutional
authority; but they were specific both in their objections
and in the ways they proposed to execute the law. Clinton,
for example, objected to provisions in a bill establishing a
semi-autonomous National Nuclear Security Administration,
which set out the reasons for removing the director. Clinton
objected that that impinged on his presidential prerogatives.
Bush asserts broad powers without being specific in his
objections or saying how he plans to implement the law. His
interpretations of the law, as in his ``signing statement''
on the McCain amendment, often construe the bill to mean
something different from--and at times almost the opposite
of--what everyone knows it means.
The concept of the unitary executive, which has been put
forward in conservative circles for several years, has been
advocated mainly by the Federalist Society, a group of
conservative lawyers who also campaign for the nomination of
conservative judges. The idea was seriously considered in the
Reagan administration's Justice Department. One of its major
supporters was Samuel Alito, then a lawyer in the Justice
Department. In his confirmation hearing, Alito said that the
memorandum he wrote saying that the president's
interpretation of a bill ``should be just as important as
that of Congress'' was ``theoretical.'' But no president
until Bush explicitly claimed that the concept of a unitary
executive was a basis for overruling a bill.
The theory was formulated by John Yoo, a mid-level but
highly influential attorney in the Justice Department between
2001 and 2003, who took the view that the president had the
power to do pretty much whatever he wanted to do. (He also
wrote the infamous memorandum defending what amounted to
torture.) As White House counsel, Alberto Gonzales, now
attorney general, also publicly supported the theory of the
unitary executive.
The theory rests on the Oath of Office, in which, according
to the Constitution, the newly elected president promises to
``faithfully execute the office of President,'' and also on
the section of Article II that states that the president
``shall take care that the laws be faithfully executed.'' The
administration has put forward unprecedented interpretations
of both clauses, claiming that they give the president
independent authority, unchecked by the other branches of
government, to decide what the law means. This theory
overlooks the fact that the framers were particularly wary of
executive power. A number of constitutional scholars I have
spoken with describe the administration's theory of the
unitary executive as no more than a convenient fig leaf for
enlarging presidential power.
Bush's claims of extraordinary power as commander in chief
have been mainly invoked since September 11, 2001. He was
able to exploit the anxieties the attacks had stirred,
causing people to look to the President to defend them.
Senator Jack Reed, Democrat of Rhode Island, recalled that
everyone ``looked to the presidency, not to the 535 senators
and congressmen, to protect them from a further crippling
attack and suspended their mistrust of government. So they
[the administration] took great power, which has to be
handled wisely, but they didn't.''
It is under the authority of his powers as commander in
chief that Bush asserted the right to keep nearly five
hundred ``enemy combatants'' in detention in Guantanamo, of
whom only ten were charged with a crime. Most were handed
over by Afghan bounty hunters who were paid by the U.S. to
turn in Arabs. Bush has also asserted the same authority in
dealing with numerous bills passed by Congress, most
spectacularly in his treatment of the McCain amendment
banning ``cruel, inhuman or degraded treatment'' of POWs. In
his signing statement, Bush said: ``The executive branch
shall construe [the torture provision] 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 judiciary * * *''
This general formula had by then become a standard part of
Bush's signing statements, though few noticed. What Bush said
about the torture bill was particularly egregious since Vice
President Cheney, Bush's liaison with Congress, had tried to
negotiate with the Senate a provision watering down McCain's
amendment, and failed. The Senate passed it by a vote of 90
to 9, and the House endorsed it by a vote of 308 to 122. It
had been an open, well-publicized fight and the President
lost.
In late February, shortly after Bush's signing statement on
the McCain amendment, the Constitution Project, a bipartisan,
nonprofit organization in Washington, issued a protest signed
by former government officials of both parties, prominent
conservatives, and scholars, saying that they ``are deeply
concerned about the risk of permanent and unchecked
presidential power, and the accompanying failure of Congress
to exercise its responsibility as a separate and independent
branch of government.'' They objected to Bush's assertions
that he ``may not be bound'' by statutes enacted by Congress,
such as the McCain amendment, and that he can ignore ``long-
standing treaty commitments and statutes that prohibit the
torture of prisoners.'' It concluded that ``we agree that we
face a constitutional crisis.''
Another egregious use of the signing statements occurred
when Bush said in March that, in interpreting the bill
reauthorizing the Patriot Act, he would ignore the
requirement that the president report to Congress on the
steps taken to implement the law, thus denying that the
executive should be accountable to Congress. Patrick Leahy,
the ranking Democrat on the Senate Judiciary Committee,
issued an angry protest calling Bush's use of signing
statements ``nothing short of a radical effort to re-shape
the constitutional separation of powers and evade
accountability and responsibility for following the law.''
Leahy added, ``The President's signing statements are not
the law, and we [the Congress] should not allow them to
become the last word.''
Bush went still further in his extraordinary claim of
supreme power on December 17, 2005, when he acknowledged
that, as revealed in The New York Times the day before, the
government was conducting warrantless wiretapping of domestic
calls. He claimed that he had the power to order such taps
``to save lives,'' regardless of what the existing law said.
His claim rested on two contradictory arguments. First, he
said that warrantless wiretaps were authorized in the
resolution enacted three days after September 11, which said
that the president could ``use all necessary and appropriate
force'' to combat al-Qaeda. But the administration also
argued that it didn't need authorization because of the
inherent powers of the commander in chief. Former Senate
Majority Leader Tom Daschle wrote that the administration had
asked for a much broader resolution on the use of force than
the one Congress approved. At the last minute the White House
sought to have the resolution also include actions ``in the
United States'' but was turned down.
One problem with the President's claims of extraordinary
powers as commander in chief is that the ``war on terror'' is
by definition an open-ended one, with no time limit on the
president's powers, as Bush interprets them, to do virtually
whatever he wants in order to conduct that war. There are
undefined limits on how far the legislature can go in
instructing the president on how to conduct a war; clearly it
cannot tell him how to deploy combat troops. But during the
Vietnam War, Congress used the power of the purse, voting to
cut off funds. The Nixon administration didn't argue that
Congress had no power to do so.
There is no way of knowing how many other laws already on
the books are being reinterpreted by Bush, as he's done in
the case of the NSA wiretapping program. The Foreign
Intelligence Surveillance Act, or FISA, passed in 1978 after
the Supreme Court had unanimously rejected as illegal Richard
Nixon's domestic wiretapping, set forth what it said were the
``exclusive means'' by which an administration could conduct
surveillance on Americans. The FISA law set up a special,
secret court that could grant the government permission to
wiretap American citizens after a showing of probable cause.
One of the administration's justifications for initiating a
wiretapping program outside the FISA law is that taps on
potential terrorists must be initiated speedily; but the FISA
law gives the executive three days to conduct a warrantless
tap in an emergency and fifteen days if there's been a
declaration of war. Gonzales complains that the law is too
burdensome, since the attorney general still has to sign off
on emergency taps and that they have to meet FISA standards.
(A Republican senator, upon being told these complaints,
said, ``So what's the problem?'') But the FISA law has been
amended twice since it was enacted and the administration has
never specifically and clearly asked Congress to revise the
law to take account of changed circumstances.
The administration's wiretapping program appears to violate
the Fourth Amendment's
guarantee that ``the right of the people to be secure in
their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated,
and no warrants shall issue, but upon probable cause. . . .''
The original impetus for the Bush program reportedly came
from General Michael V. Hayden, then head of the National
Security Agency, which collects information in the name of
national security, and Bush's nominee to head the CIA. Hayden
told a receptive White House that the NSA counsel had said
the program was legal. The government claims that if a member
of al-Qaeda, or of a group ``supportive of'' al-Qaeda, calls
or e-mails someone in the United States, or if someone in the
U.S. initiates the conversation, the government, which could
already tap the suspected terrorist, can now tap the U.S.
resident as well. This raised the question whether that U.S.
citizen's other calls would be tapped.
In a press briefing given at the White House by Gonzales
and Hayden on January 19 this year, Gonzales emphasized that
``one party to the communication has to be outside the United
States'' and insisted there has to be ``a reasonable basis''
for concluding that one party to the communication is
affiliated with or ``supportive of'' al-Qaeda, an extremely
vague standard. And the administration is now making that
decision, not the FISA court. Gonzales, moreover, has told
congressional committees that he couldn't rule out that the
President has the authority to wiretap purely domestic calls.
Asked why the administration didn't go to Congress for
authorization to wiretap domestic calls in terrorism cases
without seeking a warrant, Gonzales replied: ``We have had
discussions with Congress in the past--certain members of
Congress--as to whether or not FISA could be amended to allow
us to adequately deal with this kind of threat, and we were
advised that that would be difficult, if not impossible.'' In
other words, having been told that Congress was unlikely to
authorize the warrantless wiretaps of domestic calls, the
administration went ahead and did the tapping.
The Bush administration's reaction to the revelations about
the wiretapping program has been to attack the leaks. In his
statement acknowledging the wiretapping program, Bush said,
``The fact that we're discussing this program is helping the
enemy.'' In an attempt to limit congressional oversight, the
administration tried to restrict the number of members of
Congress it would brief on such matters.According to a
presidential directive issued quietly after September 11,
officials were to discuss highly classified information with
only the Republican chairman and the ranking Democrat on the
Senate and House Intelligence Committees--committees that
were established to conduct oversight on intelligence
activities following the CIA scandals in the mid-Seventies--
as well as the Republican and Democratic leaders of each
chamber (a total of eight people) and not with the full
intelligence committees.
Under the new rules, the members of this small group of
people weren't permitted to discuss the program with other
members of the intelligence committees, or with their own
staffs. It was for the administration to decide which
intelligence matters were too sensitive to discuss with the
entire intelligence committees. One problem with this White
House-imposed arrangement was that just as members of other
congressional committees become cozy with the government
agencies they are supposed to oversee, the intelligence
committee heads--with the notable exception of Democratic
Senator Jay Rockefeller, of West Virginia--are known to be
close to the intelligence agencies. In July 2003,
Rockefeller sent Cheney a handwritten letter saying that
the restrictions on briefings ``raise profound oversight
issues.''
Rockefeller also wrote that the wiretapping program
recalled the highly intrusive Pentagon Total Information
Awareness program headed by John Poindexter, which Congress
voted to abolish. The resemblance, he wrote, ``exacerbat[ed]
my concern regarding the direction the administration is
moving with regard to security, technology, and
surveillance.'' (Rockefeller released the statement following
the Times's disclosure.) Earlier this year, Chuck Hagel and
Olympia Snowe, Republican of Maine, threatened to vote with
the Democrats for an investigation of the wiretapping program
unless the full committee was briefed on it. In early March,
on the eve of a scheduled vote on the matter, Cheney was
called to a meeting with some committee Republicans in S207,
the committee's highly secured room in the Capitol. The
Republicans, including Snowe, sharply criticized Cheney for
the administration's attempts to prevent other committee
members from being briefed about the program.
Cheney had to report to the White House that its plan to
shut out all but the top committee members was no longer
feasible. But, working with Pat Roberts, chairman of the
Senate Intelligence Committee, and Senate Majority Leader
Bill Frist, the administration was able to limit the
additional committee members to be briefed to four
Republicans and three Democrats, still leaving most of the
intelligence committee members, not to mention other elected
officials, in the dark. On the eve of Hayden's confirmation
hearings, Roberts, facing a public revolt by committee
members of both parties, agreed that all of the committee
members should be briefed on the surveillance programs. This
was also a way of preventing committee members who hadn't
been briefed from asking awkward questions in public. (This
led to the tepid questioning of Hayden in his public
confirmation hearings.) Despite the briefing, in the public
hearing Snowe said, ``the Congress was really never really
consulted or informed in the manner that we could truly
perform our oversight role as co-equal branches of
government, not to mention--I happen to believe--required by
law.''
In March, after the Senate Intelligence Committee declined
to hold hearings on the matter, Arlen Specter, Republican of
Pennsylvania, convened four days of hearings before the
Judiciary Committee. But Specter concluded that Gonzales's
testimony was too vague to be informative. In late April he
threatened to cut off NSA funds for the wiretapping program
if the administration didn't reveal more about it. Asked by a
reporter why he didn't call Gonzales back to appear before
his committee, Specter replied, ``Because he won't tell us
anything.'' The administration, apparently on the orders of
the White House, shut down a Justice Department investigation
into the wiretapping program.
Bush's nomination of Hayden to be the next CIA director set
off an undoubtedly greater clamor than the White House
expected over his role in the wiretapping program and his
strenuous public defense of it, but the White House
claimed it welcomed the fight. And then another clamor was
set off by the revelation by USA Today that the NSA was
collecting the phone records of tens of millions of
Americans from major telephone companies. In a statement
to the press, Bush said the NSA wasn't listening to the
calls but was only tracing the pattern of contacts they
revealed. But it would be easy for the NSA or another
agency to correlate the numbers with the names of the
callers. In any event, the program is quite possibly
illegal. (Specter is to hold hearings.) These disclosures
led some lawmakers to wonder what else they hadn't been
told that the administration was doing in the name of
national security.
A big congressional fight over the wiretapping program
would fit neatly into Karl Rove's strategy, declared earlier
this year to a meeting of the Republican National Committee,
of cynically making the issue of national security central to
the 2006 election, as he did in 2002. ``Republicans,'' he
said, ``have a post-9/11 worldview and many Democrats have a
pre-9/11 worldview.'' With its penchant for propagandistic
titles (the ``Patriot Act''), the administration calls the
warrantless wiretapping program the ``terrorist
surveillance'' program, and it imputes to its opponents the
view that terrorists should not be wiretapped. But of course
that is not the issue: most of the critics on Capitol Hill
are simply arguing that wiretapping programs should be
subject to the law. Hagel says, ``You cannot have one branch
of government make the decision on whose rights would be
violated. That's the very basis of having three co-equal
branches of government.''
As for the judicial branch, the Bush administration, like
previous administrations, has tried to appoint judges
compatible with the President's views. But Bush has been
strikingly successful at putting extreme conservatives on the
bench, and probably now has four votes on the Supreme Court
for his ``unitary executive'' rationale for executive
authority over what the other branches do. His administration
has several times told the Supreme Court that it should not
hear the cases of detainees. Also by his appointments and by
exerting pressure Bush has bent the supposedly independent
regulatory agencies (the EPA, SEC, FDA, etc.) closer to his
political views--in his case, pro-deregulation--than any
president before him. The explicit rationale for these
agencies is that they were to be independent of both the
executive and Congress. There have already been two federal
court rulings charging the EPA with defying federal
environmental law.
As for the press, Justice Department officials have
threatened to prosecute not only officials who leak
classified information, but also anyone else who simply
receives classified information, whether they disclose it or
not. Gonzales has suggested that journalists might be
prosecuted for disclosing classified information (for
example, The New York Times reporters for revealing the
warrantless wiretapping program). On May 16, ABC News
reported on its Web site that the FBI had stepped up
government efforts to seek reporters' phone records in
investigations of leaks. Many reporters and editors find it
ominous that the administration prosecuted two lobbyists for
AIPAC, the American Israel Public Affairs Committee, for
receiving such information (as well as passing it on to
Israel), and that, in early March, the FBI demanded the
papers of the late investigative reporter Jack Anderson.
Cheney and his chief of staff, David Addington, formerly
his counsel, are understood by most informed observers to be
mainly responsible for the expansive interpretations of the
president's powers, as well as the unprecedented secrecy with
which the administration conducts public affairs. According
to The New York Times, after September 11 Cheney and
Addington pushed for the wiretapping of domestic calls. A
Republican lobbyist I talked to told me that the
administration's attitude on various issues is simple: ``It's
we just want it our way and we don't want to be bothered by
talking to other people about it.''
Some Republican observers suggest that Cheney is living in
a time warp, reacting to what he saw as congressional
encroachment
(including FISA) on the president's powers during the time
that he served in the Ford White House and as a minority
member of a Democratic Congress. Despite rumors of a decline
in his standing with Bush, Cheney remains the most powerful
vice-president in American history, with an octopus-like
reach into many parts of the government. He has placed his
own people in each of the national security agencies--the
Departments of Defense and State as well as the CIA and the
National Security Council. (Until she recently took a
maternity leave, his daughter Elizabeth was principal deputy
assistant secretary of state for the Near East, a position
that does not require Senate confirmation and from which
people on Capitol Hill saw her as effectively in charge of
the State Department's Middle East bureau.) Cheney installed
Porter Goss in the CIA, with orders to root out people who
leaked information inconvenient to the administration. It's
difficult, however, to know much about what Cheney is doing
because his office operates in such secrecy that a reporter
friend of mine refers to it as a ``black hole.''
In Bush, Cheney has had a very receptive listener. Bush's
own overweening attitude toward the presidency is clear from
his behavior. He bristles at being challenged. He told Bob
Woodward, ``I do not need to explain why I say things. That's
the interesting thing about being the president. Maybe
somebody needs to explain to me why they say something, but I
don't feel I owe anybody an explanation.'' His comment, ``I'm
the decider,'' about not firing Rumsfeld, is in fact a phrase
he has used often.
Why have the members of Congress been so timorous in the
face of the steady encroachment on their constitutional power
by the executive branch? Conversations with many people in or
close to Congress produced several reasons. Most members of
Congress don't think in broad constitutional terms; their
chief preoccupations are raising money and getting reelected.
Their conversations with their constituents are about the
more practical issues on voters' minds: the prices of
gasoline, prescription drugs, and college tuition. Or about
voters' increasing discontent with the Iraq war.
Republicans know that the President's deepening
unpopularity might hurt them in the autumn elections; but,
they point out, he's still a good fund-raiser and they need
his help. Moreover, the Republicans are more hierarchical
than the Democrats, more reverential toward their own party's
president; it's unimaginable that Republicans would be as
openly critical of Bush as the Democrats were of Jimmy Carter
and Bill Clinton. Republicans are more disciplined about
delivering their party's ``talking points'' to the public.
Republican fund-raising is done more from the top than is
the case with Democrats, and there's always the implicit
threat that if a Republican isn't loyal to the president,
the flow of money to their campaigns might be cut off. A
Republican opponent can challenge an incumbent in a
primary, in which not many people vote. Here Arlen Specter
has shown unusual courage. He barely survived a
conservative challenge in the primary election in 2004
(though Bush supported him), and then had to beat back a
conservative attempt to remove him as chairman of the
Senate Judiciary Committee because of his views in favor
of abortion rights. He survived by promising not to let
his pro-choice views hold up the judicial nominations
before the committee. Specter told me, ``What I worry
about most is the restrictions of Congress's
constitutional authority, which the Congress doesn't
resist.''
Bush's declining popularity can occasionally impel
Republicans to try to seem independent of him--as, say, on
the issue of Dubai being awarded a contract to administer
U.S. ports; after all the administration's talk about
security, this arrangement sounded outrageous in the American
heartland, and members of Congress rushed to kill it. But the
Republican legislators have also become convinced, in the
words of one Republican senator, ``We've got to hang with the
president because if you start splitting with him or say the
president has been abusing power we'll all go down.'' Karl
Rove has recently been arguing along these lines to
congressional Republicans. In the end, a Republican lobbyist
told me, Republican politicians feel that Bush is ``still
their guy.'' The fierce partisanship on Capitol Hill also
blocks serious discussion of the issue of unlimited executive
power: many Republicans have concluded that the Democrats are
exploiting such issues for partisan purposes and have dug in
against them. On May 11, at a regular weekly luncheon of
about twenty conservative senators, Senator Roberts denounced
criticism of Bush's surveillance and data-collecting programs
as ``dangerous'' and ``insulting'' to the President and
charged the Democrats with treating national security as a
political issue. Members of Congress who are protective of
their institution and capable of looking beyond their
parochial concerns--and who might have objected to Bush's
encroachments on the legislative branch--are largely gone.
From the time of the vote on the Iraq war, many Democrats
have been reluctant to be caught on the ``wrong side'' of
``national security'' issues, even those blatantly cooked up
by the White House. It usually requires a strong public
reaction, as there was on the subject of torture, for
Congress to make a move against the President's actions. A
Republican senator told me, ``There's a feeling on the Hill
that the public doesn't care about it, that it's willing to
give up liberties in order to defeat the terrorists.'' Some
of the proposals offered on Capitol Hill for regulating the
NSA wiretaps amount to little regulation at all.
At the center of the current conflict over the Constitution
is a president who surrounds himself with proven loyalists,
who is not interested in complexities, and who is averse to
debate and intolerant of dissenters within his administration
and elsewhere. (A prominent Washington Republican who had
raised a lot of money for Bush was dropped from the Christmas
party list after he said something mildly critical of the
President.) A Republican lobbyist close to the White House
described to me what he called the Cult of Bush: ``This group
is all about loyalty and the definition of loyalty extends to
policy-making, politics, and to the execution of policy--and
to the regulatory agencies.'' The result, this man said,
is that the people in the agencies, including the
regulatory agencies, ``become robotrons and just do what
they're told. There's no dialogue.''
The President's recent political weakness hasn't caused the
White House to back away from its claims of extraordinary
presidential power. The Republican lobbyist Vin Weber says,
``I think they're keenly aware of the fact that they're
politically weakened, but that's not the same thing as the
institution of the presidency being damaged.'' People with
very disparate political views, such as Grover Norquist and
Dianne Feinstein, worry about the long-term implications of
Bush's power grab. Norquist said, ``These are all the powers
that you don't want Hillary Clinton to have.'' Feinstein
says, ``I think it's very dangerous because other presidents
will come along and this sets a precedent for them.''
Therefore, she says, ``it's very important that Congress
grapple with and make decisions about what our policies
should be on torture, rendition, detainees, and wiretapping
lest Bush's claimed right to set the policies, or his
policies themselves, become a precedent for future
presidents.''
James Madison wrote in Federalist Paper No. 47: ``The
accumulation of all powers legislative, executive and
judiciary in the same hands, whether of one, a few or many .
. . may justly be pronounced the very definition of
tyranny.''
That extraordinary powers have, under Bush, been
accumulated in the ``same hands'' is now undeniable. For the
first time in more than thirty years, and to a greater extent
than even then, our constitutional form of government is in
jeopardy.