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A Constitutional Crisis of Cheney’s Making?


The Boston Globe’s Charlie Savage has a follow-up article on Presidential signing statements — building on his previous piece of fantastic reporting on the issue — and this one concentrates on the role of Dick Cheney and David Addington in shaping the Administration’s "unitary executive" theories and actions. 

We’ve done quite a bit of reporting and discussion on the constitutional issues that have arisen in the Bush Administration — from illegal domestic spying without a warrant; to unconstitutional disregard of separation of powers issues in a whole host of topics, including the signing statements that keep getting appended to legislation in direct contravention of the "congress makes the laws, the executive enforces them" premise; to a failure altogether to recognize that the laws apply to everyone, even the President of the United States.

But this Boston Globe piece seems to tie all the loose ends of all this into a coherent whole — with Dick Cheney and his obsession with "restoring" executive power to what he sees as Nixonian levels as its guiding force.

The President has appended signing statements to more than 705 pieces of legislation.  In a lot of cases, this has not had to do with clarification in terms of an ambiguity or some other minor point — but has, in fact, changed the meaning of the legislation itself.  In other words, instead of following the constitutional mandate, the Executive Branch is now effectively legislating on its own.

Not exactly following the ‘strict construction’ model of Constitutional interpretation there, are we, sir?

But in frequency and aggression, the current President Bush has gone far beyond his predecessors.

All previous presidents combined challenged fewer than 600 laws, Kelley’s data show, compared with the more than 750 Bush has challenged in five years. Bush is also the first president since the 1800s who has never vetoed a bill, giving Congress no chance to override his judgments.

Douglas Kmiec , who as head of the Office of Legal Counsel helped develop the Reagan administration’s strategy of issuing signing statements more frequently, said he disapproves of the “provocative" and sometimes “disingenuous" manner in which the Bush administration is using them.

Kmiec said the Reagan team’s goal was to leave a record of the president’s understanding of new laws only in cases where an important statute was ambiguous. Kmiec rejected the idea of using signing statements to contradict the clear intent of Congress, as Bush has done. Presidents should either tolerate provisions of bills they don’t like, or they should veto the bill, he said.

"Following a model of restraint, [the Reagan-era Office of Legal Counsel] took it seriously that we were to construe statutes to avoid constitutional problems, not to invent them," said Kmiec, who is now a Pepperdine University law professor.

Does it sink in at all for George Bush that the Reagan Administration’s signing statement architect thinks that Bush has gone way, way over the line? That his actions overreach constitutional boundaries for separation of powers issues? I doubt it — because the engineer of all of this for the Bush Administration has been Dick Cheney, and his legal surrogate, David Addington. Apparently, Bush has simply been along for the policy ride on this one.

The office of Vice President Dick Cheney routinely reviews pieces of legislation before they reach the president’s desk, searching for provisions that Cheney believes would infringe on presidential power, according to former White House and Justice Department officials.

The officials said Cheney’s legal adviser and chief of staff, David Addington , is the Bush a dministration’s leading architect of the “signing statements" the president has appended to more than 750 laws. The statements assert the president’s right to ignore the laws because they conflict with his interpretation of the Constitution.

The Bush-Cheney administration has used such statements to claim for itself the option of bypassing a ban on torture, oversight provisions in the USA Patriot Act, and numerous requirements that they provide certain information to Congress, among other laws.

Previous vice presidents have had neither the authority nor the interest in reviewing legislation. But Cheney has used his power over the administration’s legal team to promote an expansive theory of presidential authority. Using signing statements, the administration has challenged more laws than all previous administrations combined.

“Addington could look at whatever he wanted," said one former White House lawyer who helped prepare signing statements and who asked not to be named because he was describing internal deliberations. "He had a roving commission to get involved in whatever interested him."

A roving Executive Branch commission to get involved in any legislation that interested Dick Cheney or David Addington before it ever hit the President’s desk? Influencing the DoJ attorneys to do likewise to make Cheney happy? Does this start to sound familiar in terms of thestories that were floated that the CIA was shaping its findings to make Dick Cheney happy after repeated meetings with the Veep and Scooter Libby?  Anyone else seeing a pattern here?

Look, I think the US Constitution is pretty clear in Article I as to where the legislative powers of government are vested:

Section 1. All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives….

Section 8. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities and current coin of the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;–And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

Pretty straight forward, isn’t it? The President’s recourse if he disagrees with legislation is also quite clear — he can veto the legislation and see if his veto holds up to the potential override vote of Congress.  And that is it.

The fact that this has now been ongoing for five years — with no real pushback from the Rubber Stamp Republican Congress — is appalling.  The fact that it crept through the entire executive branch, and especially the DoJ, is beyond appalling:

Knowing that Addington was likely to review the bills, other White House and Justice Department lawyers began vetting legislation with Addington’s and Cheney’s views in mind, according to another former lawyer in the Bush White House.

All these lawyers, he said, were extremely careful to flag any provision that placed limits on presidential power.

“You didn’t want to miss something," said the second former White House lawyer, who also asked not to be named.

That Dick Cheney has been obsessed with the powers of the Executive and the unitary executive theories since well before his days in the Ford Administration is documented in the Boston Globe article. It is well worth a thorough read.  That George Bush has signed off on this — and allowed the Cheney/Addington theory to permeate his entire legal structure throughout the executive branch is beyond appalling.  And I keep coming back to Swopa’s Empty Suit theory as I read this and think about it — just who exactly IS in charge?

I’d say that this is high time for some much-needed Congressional oversight, but I’m not holding my breath that the Rubber Stamp Republican Congress gives a rats ass that it has traded in its mandate and Constitutional duties for a few shiny baubles and a pat on the head from Dick Cheney.  Shame on all of them.

(Walter Pincus does offer a tiny sliver of hope for oversight on at least one intelligence issue this morning — and good on Sen. Ron Wyden.  And may I say, it’s about damn time.)

(H/T to reader Blank Kludge for the heads up on the Boston Globe article this morning.)

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com