Text 1563, 211 rader
Skriven 2006-06-28 20:49:00 av BOB KLAHN (1:123/140)
Ärende: Bush above the law.
===========================
    Caught in the Middle

By Brian Friel, National Journal
<http://www.nationaljournal.com/about/njweekly>

 Is President Bush defying Congress? That is what critics say
 he's doing when he signs bills into law but also issues "signing
 statements" challenging the constitutionality of provisions in
 those laws.

 Bush has issued signing statements for more than 100 laws in
 which he argues that Congress has stepped unconstitutionally on
 a variety of presidential powers, from his role as
 commander-in-chief to his authority to conduct foreign policy to
 his control of the executive branch. The pronouncements imply
 that his administration isn't going to carry out any such
 mandates.

 Critics say that the signing statements are being used to
 counter congressional attempts to direct executive branch
 actions, part of a broader Bush administration effort to expand
 executive power.

 Signing statements gained prominence in December, when Bush
 issued a declaration in response to an amendment banning
 torture of prisoners in U.S. custody. The law's language had
 been brokered with the White House by Sen. John McCain, R-Ariz.,
 but Bush declared he would construe the 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 judicial power."

 Though the administration says it does not use torture, critics
 said the statement gave the executive branch wiggle room to
 torture prisoners.

 Criticism of signing statements has been rising ever since. The
 Boston Globe published a series of articles beginning in April
 questioning the use of the statements on some 750 provisions.
 Senate Judiciary Committee Chairman Arlen Specter, R-Pa., wants
 Attorney General Alberto Gonzales to come to Capitol Hill to
 explain the use of signing statements. "The president has
 asserted his authority to pick and choose what he likes and what
 he doesn't like in legislation," Specter said on the Senate
 floor on May 26.

 The American Bar Association has launched a skeptical review.
 "It is an issue that really implicates the very foundation of
 our democracy," ABA President Michael Greco, a Boston lawyer,
 said in an interview. "The Founders created equilibrium among
 the three branches, and there is concern that the executive
 branch has created an imbalance in that equilibrium."

 The administration's interpretation of part of the torture
 amendment, concerning whether prisoners at Guantanamo Bay have
 the right to appeal their detention in federal court, is being
 considered by the Supreme Court and lower courts -- which have
 never used a signing statement to determine a statute's meaning.

 Meanwhile, however, most of the signing statements issued by
 Bush -- and past presidents, for that matter -- seem largely
 symbolic and do not necessarily change how agencies implement
 legislation, according to some scholars and a review of the
 implementation of several statements. Though the president's
 lawyers may raise legal arguments against congressional actions,
 bureaucrats across the federal government are reluctant to
 challenge the appropriators and committee chiefs who control
 their budgets.

 For the past three years, for example, Congress has included in
 major appropriations bills a provision blocking funding for an
 Office of Personnel Management review of the fairly common
 practice of "legislative branch details," in which executive
 branch employees spend as long as a year working in the Capitol
 Hill offices of members of Congress or congressional committees.

 In a signing statement, the Bush administration seemed to
 suggest that it would conduct the review of details anyway,
 explaining that the provision would be construed "consistent
 with the president's constitutional authority to supervise the
 unitary executive branch and as commander-in-chief, and
 recognizing that the president cannot be compelled to give up
 the authority of his office as a condition of receiving the
 funds necessary to carry out the duties of his office."

 Despite those assertions of authority, OPM abandoned its effort
 to monitor legislative branch details. "It just never took
 effect," OPM spokesman Michael Orenstein said.

 Bush also objected to a provision in last year's highway bill
 that instructed the Transportation Department to consult with
 lawmakers on appointments to a motorcycle safety council. Bush
 said he would interpret the provision "as calling for, but not
 mandating, such consultation." Nonetheless, the Transportation
 Department has been accepting advice from members of Congress on
 who should serve on the panel, letters from lawmakers to the
 department show.

 Several presidential and legal scholars said that the signing
 statements are best viewed as part of the constant struggle for
 supremacy between the legislative and executive branches, and
 that they usually serve as signals of principle that the
 president sends to Congress in that struggle.

 But on an informal basis, the agencies under the president and
 the committees that oversee them tend to cooperate on the
 implementation of policy. Louis Fisher, a specialist at the law
 library at the Library of Congress, said that Justice Department
 lawyers, the Office of Management and Budget, and the White
 House may issue such broad policy statements, but "the rest of
 government is just trying to get things done."

 Fisher, formerly an analyst at the Congressional Research
 Service, wrote in a November 2005 CRS report that congressional
 committees continue to exercise significant control over the
 actions of federal agencies, despite Bush's objections and those
 of past presidents who have argued that the agencies report to
 the White House, not to Capitol Hill.

 In 1983, the Supreme Court ruled that Congress could not force
 agencies to clear their actions with a congressional committee
 because such a requirement would violate separation-of-powers
 rules.

 The next year, appropriations committees included seven
 provisions in laws requiring agencies, NASA among them, to seek
 prior approval of actions from the committees. President Reagan
 implied that he would ignore the requirement. The House
 Appropriations Committee retaliated, saying that it would simply
 withhold money from NASA.

 Then-NASA Administrator James Beggs and appropriators ended up
 working out an informal procedure in which the appropriators
 would still get to pre-approve NASA decisions. Most agencies
 continue to operate under such arrangements with appropriations
 and authorizing committees; Fisher found that the budget manuals
 for the departments of Defense, Energy, Transportation, and
 Treasury all instruct agency officials to make sure that
 congressional committees approve of their plans.

 "If Congress wants to batter the agency head, they're going to
 get what they want," Fisher said. "All the legal arguments melt
 away."

 Christopher Kelley, a political scientist at Miami University
 of Ohio, said the signing statements are intended to influence
 executive branch officials perhaps even more than they are meant
 to influence courts. "Starting with the Reagan administration,
 [presidents] have put a lot of effort in trying to get the
 bureaucracy to bend toward the president's position," Kelley
 said.

 Kelley said that agencies may not follow through on some
 statements that are not particularly important to the
 administration, but they do heed others. In 2002, for example,
 Bush announced in the signing statement for the Sarbanes-Oxley
 corporate accountability law that he would interpret
 whistle-blower rights more narrowly than Congress had written
 them.

 Labor Department Solicitor Eugene Scalia followed through on the
 president's interpretation, issuing a brief adhering to Bush's
 guidelines. The department backed down, however, after pressure
 from lawmakers (and Scalia's departure from Labor).

 "In most of the cases where [presidents] make a challenge, most
 of them are not carried out," Kelley said. "They pick their
 battles."

 A Bush administration background paper says that presidents
 going back to James Monroe have issued signing statements,
 describing the practice as "an ordinary part of a respectful
 constitutional 'dialogue' between the branches." But Rep. Barney
 Frank, D-Mass., introduced a bill at the end of May that would
 create a procedure for Congress to overrule signing statements
 that challenge legislation.

 Frank said statements declaring portions of law
 unconstitutional are an abuse of power. "If we do something
 that's unconstitutional, he has two constitutional options:
 First, veto the bill. Secondly, arrange for it to go to court,"
 Frank said in an interview.

 Meanwhile, Bradley Patterson, a presidential scholar and a
 National Academy of Public Administration fellow, said the
 signing statements are part of a natural separation-of-powers
 struggle. "The president and the Congress are constantly
 conflicting and engaged in a massive and ancient conflict of
 influence and power," Patterson said. "It's kind of a game
 they're playing. Congress writes its statement in the law, the
 president writes his statement in the signing statement."

 And the bureaucrats who actually implement the laws are caught
 in between.

 This document is located at
 http://www.govexec.com/dailyfed/0606/061906ol.htm


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 ©2006 by National Journal Group Inc. All rights reserved.


BOB KLAHN bob.klahn@sev.org   http://home.toltbbs.com/bobklahn

... George W. Bush, the most corrupt man to hold the presidency in my lifetime.
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