President cites powers of his office
President Bush has quietly claimed the authority to disobey more than
750 laws enacted since he took office, asserting that he has the power to set
aside any statute passed by Congress when it conflicts with his interpretation
of the Constitution.
Among the laws Bush said he can ignore are military rules and regulations,
affirmative-action provisions, requirements that Congress be told about immigration
services problems, ''whistle-blower" protections for nuclear regulatory
officials, and safeguards against political interference in federally funded
Legal scholars say the scope and aggression of Bush's assertions that he can
bypass laws represent a concerted effort to expand his power at the expense
of Congress, upsetting the balance between the branches of government. The Constitution
is clear in assigning to Congress the power to write the laws and to the president
a duty ''to take care that the laws be faithfully executed." Bush, however,
has repeatedly declared that he does not need to ''execute" a law he believes
Former administration officials contend that just because Bush reserves the
right to disobey a law does not mean he is not enforcing it: In many cases,
he is simply asserting his belief that a certain requirement encroaches on presidential
But with the disclosure of Bush's domestic spying program, in which he ignored
a law requiring warrants to tap the phones of Americans, many legal specialists
say Bush is hardly reluctant to bypass laws he believes he has the constitutional
authority to override.
Far more than any predecessor, Bush has been aggressive about declaring his
right to ignore vast swaths of laws -- many of which he says infringe on power
he believes the Constitution assigns to him alone as the head of the executive
branch or the commander in chief of the military.
Many legal scholars say they believe that Bush's theory about his own powers
goes too far and that he is seizing for himself some of the law-making role
of Congress and the Constitution-interpreting role of the courts.
Phillip Cooper, a Portland State University law professor who has studied the
executive power claims Bush made during his first term, said Bush and his legal
team have spent the past five years quietly working to concentrate ever more
governmental power into the White House.
''There is no question that this administration has been involved in a very
carefully thought-out, systematic process of expanding presidential power at
the expense of the other branches of government," Cooper said. ''This is
really big, very expansive, and very significant."
For the first five years of Bush's presidency, his legal claims attracted little
attention in Congress or the media. Then, twice in recent months, Bush drew
scrutiny after challenging new laws: a torture ban and a requirement that he
give detailed reports to Congress about how he is using the Patriot Act.
Bush administration spokesmen declined to make White House or Justice Department
attorneys available to discuss any of Bush's challenges to the laws he has signed.
Instead, they referred a Globe reporter to their response to questions about
Bush's position that he could ignore provisions of the Patriot Act. They said
at the time that Bush was following a practice that has ''been used for several
administrations" and that ''the president will faithfully execute the law
in a manner that is consistent with the Constitution."
But the words ''in a manner that is consistent with the Constitution"
are the catch, legal scholars say, because Bush is according himself the ultimate
interpretation of the Constitution. And he is quietly exercising that authority
to a degree that is unprecedented in US history.
Bush is the first president in modern history who has never vetoed a bill,
giving Congress no chance to override his judgments. Instead, he has signed
every bill that reached his desk, often inviting the legislation's sponsors
to signing ceremonies at which he lavishes praise upon their work.
Then, after the media and the lawmakers have left the White House, Bush quietly
files ''signing statements" -- official documents in which a president
lays out his legal interpretation of a bill for the federal bureaucracy to follow
when implementing the new law. The statements are recorded in the federal register.
In his signing statements, Bush has repeatedly asserted that the Constitution
gives him the right to ignore numerous sections of the bills -- sometimes including
provisions that were the subject of negotiations with Congress in order to get
lawmakers to pass the bill. He has appended such statements to more than one
of every 10 bills he has signed.
''He agrees to a compromise with members of Congress, and all of them are there
for a public bill-signing ceremony, but then he takes back those compromises
-- and more often than not, without the Congress or the press or the public
knowing what has happened," said Christopher Kelley, a Miami University
of Ohio political science professor who studies executive power.
Many of the laws Bush said he can bypass -- including the torture ban -- involve
The Constitution grants Congress the power to create armies, to declare war,
to make rules for captured enemies, and ''to make rules for the government and
regulation of the land and naval forces." But, citing his role as commander
in chief, Bush says he can ignore any act of Congress that seeks to regulate
On at least four occasions while Bush has been president, Congress has passed
laws forbidding US troops from engaging in combat in Colombia, where the US
military is advising the government in its struggle against narcotics-funded
After signing each bill, Bush declared in his signing statement that he did
not have to obey any of the Colombia restrictions because he is commander in
Bush has also said he can bypass laws requiring him to tell Congress before
diverting money from an authorized program in order to start a secret operation,
such as the ''black sites" where suspected terrorists are secretly imprisoned.
Congress has also twice passed laws forbidding the military from using intelligence
that was not ''lawfully collected," including any information on Americans
that was gathered in violation of the Fourth Amendment's protections against
Congress first passed this provision in August 2004, when Bush's warrantless
domestic spying program was still a secret, and passed it again after the program's
existence was disclosed in December 2005.
On both occasions, Bush declared in signing statements that only he, as commander
in chief, could decide whether such intelligence can be used by the military.
In October 2004, five months after the Abu Ghraib torture scandal in Iraq came
to light, Congress passed a series of new rules and regulations for military
prisons. Bush signed the provisions into law, then said he could ignore them
all. One provision made clear that military lawyers can give their commanders
independent advice on such issues as what would constitute torture. But Bush
declared that military lawyers could not contradict his administration's lawyers.
Other provisions required the Pentagon to retrain military prison guards on
the requirements for humane treatment of detainees under the Geneva Conventions,
to perform background checks on civilian contractors in Iraq, and to ban such
contractors from performing ''security, intelligence, law enforcement, and criminal
justice functions." Bush reserved the right to ignore any of the requirements.
The new law also created the position of inspector general for Iraq. But Bush
wrote in his signing statement that the inspector ''shall refrain" from
investigating any intelligence or national security matter, or any crime the
Pentagon says it prefers to investigate for itself.
Bush had placed similar limits on an inspector general position created by
Congress in November 2003 for the initial stage of the US occupation of Iraq.
The earlier law also empowered the inspector to notify Congress if a US official
refused to cooperate. Bush said the inspector could not give any information
to Congress without permission from the administration.
Many laws Bush has asserted he can bypass involve requirements to give information
about government activity to congressional oversight committees.
In December 2004, Congress passed an intelligence bill requiring the Justice
Department to tell them how often, and in what situations, the FBI was using
special national security wiretaps on US soil. The law also required the Justice
Department to give oversight committees copies of administration memos outlining
any new interpretations of domestic-spying laws. And it contained 11 other requirements
for reports about such issues as civil liberties, security clearances, border
security, and counternarcotics efforts.
After signing the bill, Bush issued a signing statement saying he could withhold
all the information sought by Congress.
Likewise, when Congress passed the law creating the Department of Homeland
Security in 2002, it said oversight committees must be given information about
vulnerabilities at chemical plants and the screening of checked bags at airports.
It also said Congress must be shown unaltered reports about problems with visa
services prepared by a new immigration ombudsman. Bush asserted the right to
withhold the information and alter the reports.
On several other occasions, Bush contended he could nullify laws creating ''whistle-blower"
job protections for federal employees that would stop any attempt to fire them
as punishment for telling a member of Congress about possible government wrongdoing.
When Congress passed a massive energy package in August, for example, it strengthened
whistle-blower protections for employees at the Department of Energy and the
Nuclear Regulatory Commission.
The provision was included because lawmakers feared that Bush appointees were
intimidating nuclear specialists so they would not testify about safety issues
related to a planned nuclear-waste repository at Yucca Mountain in Nevada --
a facility the administration supported, but both Republicans and Democrats
from Nevada opposed.
When Bush signed the energy bill, he issued a signing statement declaring that
the executive branch could ignore the whistle-blower protections.
Bush's statement did more than send a threatening message to federal energy
specialists inclined to raise concerns with Congress; it also raised the possibility
that Bush would not feel bound to obey similar whistle-blower laws that were
on the books before he became president. His domestic spying program, for example,
violated a surveillance law enacted 23 years before he took office.
David Golove, a New York University law professor who specializes in executive-power
issues, said Bush has cast a cloud over ''the whole idea that there is a rule
of law," because no one can be certain of which laws Bush thinks are valid
and which he thinks he can ignore.
''Where you have a president who is willing to declare vast quantities of the
legislation that is passed during his term unconstitutional, it implies that
he also thinks a very significant amount of the other laws that were already
on the books before he became president are also unconstitutional," Golove
Defying Supreme Court
Bush has also challenged statutes in which Congress gave certain executive branch
officials the power to act independently of the president. The Supreme Court
has repeatedly endorsed the power of Congress to make such arrangements. For
example, the court has upheld laws creating special prosecutors free of Justice
Department oversight and insulating the board of the Federal Trade Commission
from political interference.
Nonetheless, Bush has said in his signing statements that the Constitution
lets him control any executive official, no matter what a statute passed by
Congress might say.
In November 2002, for example, Congress, seeking to generate independent statistics
about student performance, passed a law setting up an educational research institute
to conduct studies and publish reports ''without the approval" of the Secretary
of Education. Bush, however, decreed that the institute's director would be
''subject to the supervision and direction of the secretary of education."
Similarly, the Supreme Court has repeatedly upheld affirmative-action programs,
as long as they do not include quotas. Most recently, in 2003, the court upheld
a race-conscious university admissions program over the strong objections of
Bush, who argued that such programs should be struck down as unconstitutional.
Yet despite the court's rulings, Bush has taken exception at least nine times
to provisions that seek to ensure that minorities are represented among recipients
of government jobs, contracts, and grants. Each time, he singled out the provisions,
declaring that he would construe them ''in a manner consistent with" the
Constitution's guarantee of ''equal protection" to all -- which some legal
scholars say amounts to an argument that the affirmative-action provisions represent
reverse discrimination against whites.
Golove said that to the extent Bush is interpreting the Constitution in defiance
of the Supreme Court's precedents, he threatens to ''overturn the existing structures
of constitutional law."
A president who ignores the court, backed by a Congress that is unwilling to
challenge him, Golove said, can make the Constitution simply ''disappear."
Common practice in '80s
Though Bush has gone further than any previous president, his actions are not
Since the early 19th century, American presidents have occasionally signed
a large bill while declaring that they would not enforce a specific provision
they believed was unconstitutional. On rare occasions, historians say, presidents
also issued signing statements interpreting a law and explaining any concerns
But it was not until the mid-1980s, midway through the tenure of President
Reagan, that it became common for the president to issue signing statements.
The change came about after then-Attorney General Edwin Meese decided that signing
statements could be used to increase the power of the president.
When interpreting an ambiguous law, courts often look at the statute's legislative
history, debate and testimony, to see what Congress intended it to mean. Meese
realized that recording what the president thought the law meant in a signing
statement might increase a president's influence over future court rulings.
Under Meese's direction in 1986, a young Justice Department lawyer named Samuel
A. Alito Jr. wrote a strategy memo about signing statements. It came to light
in late 2005, after Bush named Alito to the Supreme Court.
In the memo, Alito predicted that Congress would resent the president's attempt
to grab some of its power by seizing ''the last word on questions of interpretation."
He suggested that Reagan's legal team should ''concentrate on points of true
ambiguity, rather than issuing interpretations that may seem to conflict with
those of Congress."
Reagan's successors continued this practice. George H.W. Bush challenged 232
statutes over four years in office, and Bill Clinton objected to 140 laws over
his eight years, according to Kelley, the Miami University of Ohio professor.
Many of the challenges involved longstanding legal ambiguities and points of
conflict between the president and Congress.
Throughout the past two decades, for example, each president -- including the
current one -- has objected to provisions requiring him to get permission from
a congressional committee before taking action. The Supreme Court made clear
in 1983 that only the full Congress can direct the executive branch to do things,
but lawmakers have continued writing laws giving congressional committees such
Still, Reagan, George H.W. Bush, and Clinton used the presidential veto instead
of the signing statement if they had a serious problem with a bill, giving Congress
a chance to override their decisions.
But the current President Bush has abandoned the veto entirely, as well as
any semblance of the political caution that Alito counseled back in 1986. In
just five years, Bush has challenged more than 750 new laws, by far a record
for any president, while becoming the first president since Thomas Jefferson
to stay so long in office without issuing a veto.
''What we haven't seen until this administration is the sheer number of objections
that are being raised on every bill passed through the White House," said
Kelley, who has studied presidential signing statements through history. ''That
is what is staggering. The numbers are well out of the norm from any previous
Some administration defenders say that concerns about Bush's signing statements
are overblown. Bush's signing statements, they say, should be seen as little
more than political chest-thumping by administration lawyers who are dedicated
to protecting presidential prerogatives.
Defenders say the fact that Bush is reserving the right to disobey the laws
does not necessarily mean he has gone on to disobey them.
Indeed, in some cases, the administration has ended up following laws that
Bush said he could bypass. For example, citing his power to ''withhold information"
in September 2002, Bush declared that he could ignore a law requiring the State
Department to list the number of overseas deaths of US citizens in foreign countries.
Nevertheless, the department has still put the list on its website.
Jack Goldsmith, a Harvard Law School professor who until last year oversaw
the Justice Department's Office of Legal Counsel for the administration, said
the statements do not change the law; they just let people know how the president
is interpreting it.
''Nobody reads them," said Goldsmith. ''They have no significance. Nothing
in the world changes by the publication of a signing statement. The statements
merely serve as public notice about how the administration is interpreting the
law. Criticism of this practice is surprising, since the usual complaint is
that the administration is too secretive in its legal interpretations."
But Cooper, the Portland State University professor who has studied Bush's
first-term signing statements, said the documents are being read closely by
one key group of people: the bureaucrats who are charged with implementing new
Lower-level officials will follow the president's instructions even when his
understanding of a law conflicts with the clear intent of Congress, crafting
policies that may endure long after Bush leaves office, Cooper said.
''Years down the road, people will not understand why the policy doesn't look
like the legislation," he said.
And in many cases, critics contend, there is no way to know whether the administration
is violating laws -- or merely preserving the right to do so.
Many of the laws Bush has challenged involve national security, where it is
almost impossible to verify what the government is doing. And since the disclosure
of Bush's domestic spying program, many people have expressed alarm about his
sweeping claims of the authority to violate laws.
In January, after the Globe first wrote about Bush's contention that he could
disobey the torture ban, three Republicans who were the bill's principal sponsors
in the Senate -- John McCain of Arizona, John W. Warner of Virginia, and Lindsey
O. Graham of South Carolina -- all publicly rebuked the president.
''We believe the president understands Congress's intent in passing, by very
large majorities, legislation governing the treatment of detainees," McCain
and Warner said in a joint statement. ''The Congress declined when asked by
administration officials to include a presidential waiver of the restrictions
included in our legislation."
Added Graham: ''I do not believe that any political figure in the country has
the ability to set aside any . . . law of armed conflict that we have adopted
or treaties that we have ratified."
And in March, when the Globe first wrote about Bush's contention that he could
ignore the oversight provisions of the Patriot Act, several Democrats lodged
Senator Patrick J. Leahy of Vermont, the ranking Democrat on the Senate Judiciary
Committee, accused Bush of trying to ''cherry-pick the laws he decides he wants
And Representatives Jane Harman of California and John Conyers Jr. of Michigan
-- the ranking Democrats on the House Intelligence and Judiciary committees,
respectively -- sent a letter to Attorney General Alberto R. Gonzales demanding
that Bush rescind his claim and abide by the law.
''Many members who supported the final law did so based upon the guarantee
of additional reporting and oversight," they wrote. ''The administration
cannot, after the fact, unilaterally repeal provisions of the law implementing
such oversight. . . . Once the president signs a bill, he and all of us are
bound by it."
Lack of court review
Such political fallout from Congress is likely to be the only check on Bush's
claims, legal specialists said.
The courts have little chance of reviewing Bush's assertions, especially in
the secret realm of national security matters.
''There can't be judicial review if nobody knows about it," said Neil
Kinkopf, a Georgia State law professor who was a Justice Department official
in the Clinton administration. ''And if they avoid judicial review, they avoid
having their constitutional theories rebuked."
Without court involvement, only Congress can check a president who goes too
far. But Bush's fellow Republicans control both chambers, and they have shown
limited interest in launching the kind of oversight that could damage their
''The president is daring Congress to act against his positions, and they're
not taking action because they don't want to appear to be too critical of the
president, given that their own fortunes are tied to his because they are all
Republicans," said Jack Beermann, a Boston University law professor. ''Oversight
gets much reduced in a situation where the president and Congress are controlled
by the same party."
Said Golove, the New York University law professor: ''Bush has essentially
said that 'We're the executive branch and we're going to carry this law out
as we please, and if Congress wants to impeach us, go ahead and try it.' "
Bruce Fein, a deputy attorney general in the Reagan administration, said the
American system of government relies upon the leaders of each branch ''to exercise
some self-restraint." But Bush has declared himself the sole judge of his
own powers, he said, and then ruled for himself every time.
''This is an attempt by the president to have the final word on his
own constitutional powers, which eliminates the checks and balances that keep
the country a democracy," Fein said. ''There is no way for an independent
judiciary to check his assertions of power, and Congress isn't doing it, either.
So this is moving us toward an unlimited executive power."