Imagine
a country with a different kind of monarch from the one we are used to.
Forget the nation-binding human monarch whom Archbishop Rowan Williams
praised so deftly this week. Imagine instead a monarch who, like many
of Elizabeth II's ancestors, routinely reserved the right to override
laws passed by the legislature, or who repeatedly asserted that the
laws mean something they do not say. Imagine, in fact, King George of
America.
On April 30 the Boston Globe journalist Charlie Savage wrote an article
whose contents become more astonishing the more one reads them. Over
the past five years, Savage reported, President George Bush has quietly
claimed the authority to disobey more than 750 laws that have been
enacted by the United States Congress since he took office. At the
heart of Bush's strategy is the claim that the president has the power
to set aside any statute that conflicts with his own interpretation of
the constitution.
Remarkably,
this systematic reach for power has occurred not in secret but in
public. Go to the White House website and the evidence is there in
black and white. It takes the form of dozens of documents in which Bush
asserts that his power as the nation's commander in chief entitles him
to overrule or ignore bills sent to him by Congress for his signature.
Behind this claim is a doctrine of the "unitary executive", which
argues that the president's oath of office endows him with an
independent authority to decide what a law means.
Periodically,
congressional leaders come down from Capitol Hill to applaud as the
president, seated at his desk, signs a bill that becomes the law of the
land. They are corny occasions. But they are a photo-op reminder that
American law-making involves compromises that reflect a balance between
the legislature and the presidency. The signing ceremony symbolises
that the balance has been upheld and renewed.
After the
legislators leave, however, Bush puts his signature to another
document. Known as a signing statement, this document is a presidential
pronouncement setting out the terms in which he intends to interpret
the new law. These signing statements often conflict with the new
statutes. In some cases they even contradict their clear meaning.
Increasing numbers of scholars and critics now believe they amount to a
systematic power grab within a system that rests on checks and balances
of which generations of Americans have been rightly proud - and of
which others are justly envious.
The Bush administration has
often been charged with unilateralism in its conduct of foreign
affairs. But a similar disregard for the rule of law underlies this
domestic strategy. Article 1, section 1 of the US constitution states:
"All legislative powers herein granted shall be vested in a Congress of
the United States." Section 7 says that if the president refuses to
sign a law, the Congress can override him. But Bush has never vetoed a
bill. Instead he signs bills into law and then unilaterally redefines
them his way.
The contrast between the rhetoric of the public
ceremony and the self-authorisation in the later signing statements is
large. Take, for example, the renewal of the USA Patriot Act on March
9. In the signing ceremony Bush stressed that the law had been a
bipartisan effort involving Congress and the White House. In the
subsequent signing statement, however, he states that he does not feel
bound to report to Congress (as the act requires) and would "withhold
information the disclosure of which could impair foreign relations,
national security, the deliberative processes of the executive, or the
performance of the executive's constitutional duties".
Or take
the contrast after Bush signed an overwhelmingly supported
congressional bill last year outlawing the torture of detainees. On the
face of it the new law was explicit, strengthening what Bush described
as "values we hold dear" and extending a domestic ban on torture to
cover US actions around the world. But the signing statement on
December 30 carefully undermined that claim. It asserted that "the
executive branch shall construe [the law] in a manner consistent with
the constitutional authority of the president ... as commander in
chief," adding that this approach would "assist in achieving the shared
objective of the Congress and the president ... of protecting the
American people from further terrorist attacks". In other words,
circumstances might arise in which torture might still be authorised.
The
Bush White House did not invent the presidential signing statement; it
goes back to the 19th century. But the frequency and ambition of Bush's
signing statements go far beyond his predecessors. Whereas earlier
presidents issued signing statements of a highly specific nature, those
of Bush are repeatedly broad and unspecific. Above all, they make
claims to enhanced executive power that impinge on profound issues of
liberty such as torture or wiretapping.
Too late in the day for
comfort, Bush's approach is coming under greater scrutiny. In February
the bipartisan Constitution Project warned of "the risk of permanent
and unchecked presidential power". Last week the American Bar
Association announced an independent inquiry into the practice. A
powerful article in the New York Review of Books by the veteran writer
Elizabeth Drew has also given the subject higher saliency.
To
their credit, even some Bush supporters are alarmed. If Bill Clinton
had done what Bush is doing, the Republican senator Chuck Hagel has
pointed out, Congress would be up in arms. If Bush were to bequeath the
powers he claims to Hillary Clinton, the right would soon go berserk
with indignation at the threat to American values. Which is why the
most pertinent comment so far on the president's strategy has come from
the anti-tax conservative Grover Norquist. He told Drew: "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."
<>It
is not anti-American to warn about what Bush is doing. On the contrary,
it is profoundly pro-American. In 1776 Americans issued their
declaration of independence. They demanded a new form of government in
place of the "repeated injuries and usurpations" to which they had been
subjected. In the long list of grievances that followed, the first was
that King George had "refused his assent to laws, the most wholesome
and necessary for the public good". That suddenly has a contemporary
ring. Now, as then, America's problem is a usurping king called
George.
martin.kettle@guardian.co.uk
