Bush using a little-noticed strategy to alter the balance of power

By Ron Hutcheson and James Kuhnhenn

Knight Ridder Newspapers

Posted on Fri, Jan. 06, 2006

WASHINGTON - President Bush agreed with great fanfare last month to accept a ban on torture, but he later quietly reserved the right to ignore it, even as he signed it into law.

Acting from the seclusion of his Texas ranch at the start of New Year's weekend, Bush said he would interpret the new law in keeping with his expansive view of presidential power. He did it by issuing a bill-signing statement - a little-noticed device that has become a favorite tool of presidential power in the Bush White House.

In fact, Bush has used signing statements to reject, revise or put his spin on more than 500 legislative provisions. Experts say he has been far more aggressive than any previous president in using the statements to claim sweeping executive power - and not just on national security issues.

"It's nothing short of breath-taking," said Phillip Cooper, a professor of public administration at Portland State University. "In every case, the White House has interpreted presidential authority as broadly as possible, interpreted legislative authority as narrowly as possible, and pre-empted the judiciary."

Signing statements don't have the force of law, but they can influence judicial interpretations of a statute. They also send a powerful signal to executive branch agencies on how the White House wants them to implement new federal laws.

In some cases, Bush bluntly informs Congress that he has no intention of carrying out provisions that he considers an unconstitutional encroachment on his authority.

"They don't like some of the things Congress has done so they assert the power to ignore it," said Martin Lederman, a visiting professor at the Georgetown University Law Center. "The categorical nature of their opposition is unprecedented and alarming."

The White House says its authority stems from the Constitution, but dissenters say that view ignores the Constitution's careful balance of powers between branches of government.

"We know the textbook story of how government works. Essentially what this has done is attempt to upset that," said Christopher Kelley, a presidential scholar at Miami University in Oxford, Ohio, who generally shares Bush's expansive view of executive authority. "These are directives to executive branch agencies saying that whenever something requires interpretation, you should interpret it the way the president wants you to."

Other presidents have used similar tactics. For example, Jimmy Carter rebuffed congressional efforts to block his amnesty program for Vietnam-era draft dodgers. But experts say Bush has taken claims of presidential power to a whole new level.

In the case of the torture ban, Bush said he would interpret the law "in a manner consistent with the constitutional authority of the president," with the goal of "protecting the American people from further terrorist attacks."

Because Bush has already claimed broad powers in the war on terror - including the right to bypass existing laws restricting domestic surveillance - legal experts and some members of Congress interpreted the statement to mean that he would ignore the torture ban if he felt it would harm national security.

Opponents of the ban say torture should not be ruled out in a case where abusive interrogation might prevent an imminent terrorist attack.

White House spokeswoman Dana Perino said Bush was defending a principle, not signaling his intention to ignore the torture prohibition.

"The president has said that we follow the law. Of course we will follow this law as well," she said.

Some members of Congress aren't so sure.

"He issues a signing statement that says he retains all of the inherent power that will permit him to go out and torture just the way they've gone ahead and tortured before," said Sen. Edward Kennedy, D-Mass. "That process is an arrogance of power."

Congress has clashed with Bush over signing statements before. In 2002, lawmakers from both parties vigorously objected when Bush offered a narrow interpretation of whistleblower protections in legislation on corporate fraud. After a series of angry letters from Congress to the White House, the administration backed down.

But monitoring the implementation of new laws is a complicated task, especially when Bush is ambiguous about his intentions. Cooper said Bush's assertion of his constitutional authority in dealing with the torture ban is typical of his approach.

"It doesn't explicitly say what he's going to do or not do, but it gives him the authority to do whatever he wants to do," Cooper said. "The administration has clearly concluded that the Republican-dominated Congress is not prepared to force a confrontation on a lot of these issues."

The roots of Bush's approach go back to the Ford administration, when Dick Cheney, then serving as White House chief of staff, chafed at legislative limits placed on the executive branch in the aftermath of the Watergate scandal and other abuses of power by President Nixon. Now the vice president and his top aide, David Addington, are taking the lead in trying to tip the balance of power away from Congress and back to the president.

They may soon have an ally on the Supreme Court. As a Justice Department lawyer in the Reagan administration, Supreme Court nominee Samuel Alito wrote a 1986 memo outlining plans for expanded use of presidential signing statements.

Although Alito told his bosses that the aggressive use of assertive signing statements "would increase the power of the executive to shape the law," he acknowledged doubts about their legal significance.

Reagan adopted the strategy and used signing statements to challenge 71 legislative provisions, according to Kelley's tally. President George H.W. Bush challenged 146 laws; President Clinton challenged 105. The current president has lodged more than 500 challenges so far.

Bush and his legal advisers offer a variety of arguments to support their claims to power. In their view, the Constitution's directive that "the president shall be commander in chief" gives Bush virtually unlimited authority on issues related to national security.

They also rely heavily on the "unitary executive" theory to resist congressional directives to federal agencies. The theory rests on the Constitution's clause that says that "executive power shall be vested in a president."

Bush has cited the theory, which has not been fully tested in court, more than 100 times in his signing statements.

Skeptics say the president and his advisers overlook the Constitution's checks and balances, noting that the Framers had a deep distrust of excessive executive power, having rebelled against a king. The Constitution gives Congress the power to declare war, and shared power over executive spending, for example.

Lawmakers from both parties have questioned Bush's assertion of his wartime authority.

"If you take this to its logical conclusion, because during war the commander in chief has an obligation to protect us, any statute on the books could be summarily waived," said Sen. Lindsey Graham, R-S.C.

"The Constitution says that if the president doesn't like it (a bill), he can veto it. And we have an opportunity to override the veto," Kennedy noted.

Some members of Congress from both parties also question the legal authority of presidential signing statements.

"He can say whatever he likes, I don't know if that has a whole lot of impact on the statute. Statutes are traditionally a matter of congressional intent," said Sen. Arlen Specter, R-Pa., the chairman of the Senate Judiciary Committee.

In 2003, lawmakers tried to get a handle on Bush's use of signing statements by passing a Justice Department spending bill that required the department to inform Congress whenever the administration decided to ignore a legislative provision on constitutional grounds.

Bush signed the bill, but issued a statement asserting his right to ignore the notification requirement.