The Prez Is Out of Control

[[P O W E R]] * During Democrat Bill Clinton’s eight years in the White House, many right-wing critics advocated limiting his powers and redefining the U.S. presidency down to something more akin to what it had been prior to Franklin D. Roosevelt taking the oath of office in 1933: a caretaker position, with Congress being the principal engine of endeavor and change. Now, however, with George W. Bush holding tight to the reins of authority, some of those same critics have become, if not champions of Bush’s “imperial presidency,” certainly apologists for its rampant excesses.

Fortunately, The New York Times--despite its efforts in the cause of fair-minded journalism to make sense of Bush’s failures and endemic arrogance in its news columns--has become one of the most active and prominent critics of his power-mongering on its editorial pages. Today’s lead editorial, “The Imperial Presidency at Work,” leaves no doubt that “the paper of record” finds Bush’s attitude toward executive clout reprehensible and the need to curtail it both essential and urgent:

You would think that Senators Carl Levin and John McCain would have learned by now that you cannot deal in good faith with a White House that does not act in good faith. Yet both men struck bargains intended to restore the rule of law to American prison camps. And President Bush tossed them aside at the first opportunity.

Mr. Bush made a grand show of inviting Mr. McCain into the Oval Office last month to announce his support for a bill to require humane treatment of detainees at Guantánamo Bay and other prisons run by the American military and intelligence agencies. He seemed to have managed to get Vice President Dick Cheney to stop trying to kill the proposed Congressional ban on torture of prisoners.

The White House also endorsed a bargain between Mr. Levin and Senator Lindsey Graham of South Carolina, which tempered somewhat a noxious proposal by Mr. Graham to deny a court hearing to anyone the president declares to be an “unlawful enemy combatant.” ...

Mr. Bush, however, seems to see no limit to his imperial presidency. First, he issued a constitutionally ludicrous “signing statement” on the McCain bill. The message: Whatever Congress intended the law to say, he intended to ignore it on the pretext the commander in chief is above the law. That twisted reasoning is what led to the legalized torture policies, not to mention the domestic spying program.

Then Mr. Bush went after the judiciary, scrapping the Levin-Graham bargain. The solicitor general informed the Supreme Court last week that it no longer had jurisdiction over detainee cases. ...

Both of the offensive theories at work here--that a president’s intent in signing a bill trumps the intent of Congress in writing it, and that a president can claim power without restriction or supervision by the courts or Congress--are pet theories of Judge Samuel Alito, the man Mr. Bush chose to tilt the Supreme Court to the right.

The administration’s behavior shows how high and immediate the stakes are in the Alito nomination, and how urgent it is for Congress to curtail Mr. Bush’s expansion of power. Nothing in the national consensus to combat terrorism after 9/11 envisioned the unilateral rewriting of more than 200 years of tradition and law by one president embarked on an ideological crusade.

Meanwhile, Newsweek’s Jonathan Alter opines that the debate during last week’s Alito hearings, coming so soon after the outbreak of Bush’s domestic spying scandal (“Snoopgate”) and raising still further questions about a president’s right to disregard congressional oversight, suggests a looming constitutional crisis:

Remember, [Snoopgate] is not about whether it’s right or wrong to wiretap bad guys, though the White House hopes to frame it that way for political purposes. Any rational person wants the president to be able to hunt for Qaeda suspects wherever they lurk. The “momentous” issue (Alito’s words) is whether this president, or any other, has the right to tell Congress to shove it. And even if one concedes that wartime offers the president extra powers to limit liberty, what happens if the terrorist threat looks permanent? We may be scrapping our checks and balances not just for a few years (as during the Civil War), but for good.

Sens. Dianne Feinstein and Russ Feingold ably raised some of these questions last week; Al Gore is about to weigh in, too. But the Democratic Party as a whole cannot stay focused on the issue. Some activists keep jumping ahead to the remedy for the president’s power grab, which they say is impeachment. But that’s a pipe dream and a distraction from the task at hand, which is figuring out how to reassert Congress’s institutional role. This must by necessity involve Republicans, who control Congress. Unfortunately, most have so far shown little concern about being defenestrated by their president. ...

But “Snoopgate” is already creating new fissures on the right. The NSA story is an acid test of whether one is a traditional Barry Goldwater conservative, who believes in limited government, or a modern Richard Nixon conservative, who believes in authority. Alito is in the latter category. His judicial opinions suggest a deference to executive power, and he once pioneered presidential “signing statements” that are meant to help judges come down on the president’s side. ...

Alito embodies the inherent contradiction of the conservative movement. The nominee is an “originalist,” which means, as he said last week, that “we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption.” But at that time, the 18th century, the Founders could not have been clearer about the role of Congress in wartime. As James Madison put it, “In no part of the Constitution is more wisdom to be found than in the clause which confides the question of war and peace to the legislative and not to the executive branch.”

Alter concludes that “our whole system [of government] is on the line” right now. However, he doesn’t hold out much hope of a power rebalancing in Washington, D.C. At least not so long as the U.S. House is embroiled in a succession fight incited by the indictment and ouster of former Republican Majority Leader Tom DeLay (R-Texas), the Senate limps along with a weak and barely less scandalized GOP leader (Bill Frist), Republicans struggle to shrug off responsibility for the worst political corruption scandal since the congressional check-kiting outrage of the early 1990s, and the Democratic minority can only delay confirmations and legislation, but do little to curtail corruption and restore public faith in the federal government.

READ MORE: “Congress Should Restrain the President,” by David Boaz (Cato Institute); “An Imperial Presidency Based on Constitutional Quicksand,” by Ivan Eland (The Independent Institute); “Judge Alito, in His Own Words” (The New York Times).