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Executive Power Outrage

By Dan Froomkin
Special to washingtonpost.com
Tuesday, June 6, 2006; 1:09 PM

When all is said and done, the biggest story of the Bush presidency will likely be its dramatic expansion of executive power -- engineered by Vice President Cheney, unchecked by a supine Congress, and underreported by the traditional media.

Every so often, of course, you'll see a Washington journalist take a step back to examine the big picture. Even a modest sign of defiance in the legislative or judicial branches can serve as a handy news peg.

And an excellent example of the species appears today in USA Today, where Susan Page writes: "After five years of a concerted White House campaign, there are tentative signs that Congress and the courts are beginning to push back against what has been the greatest expansion of presidential powers in a generation or more.

"Those pushing back include some congressional Republicans and conservative jurists who have been among President Bush's chief allies. The efforts surely would intensify if Democrats won control of the House or Senate in November's elections -- and with it the power to convene hearings and issue subpoenas."

Page cites such examples as the bipartisan condemnation of the FBI search of a congressional office and a Senate Intelligence Committee vote to demand that the administration notify all members of the committees about intelligence operations, not just some.

It ain't much, really. Even Page notes: "It's true that Congress generally hasn't used or even threatened to use its most potent weapons in a confrontation with the White House, such as issuing subpoenas or cutting off funding for programs."

But it's still a good excuse to call attention to the fact that the Bush Administration "has taken a series of actions to expand presidential powers."

Here's Page's handy list of "How Bush has asserted powers of the executive."

Page writes: "Analysts credit Bush's ability to prevail in large part to the aftermath of 9/11, which buttressed Americans' backing for a president with the power to battle a shadowy and terrifying foe. In the fiercely partisan climate of Washington, the Republican-controlled House and Senate generally have lined up behind Bush, not challenged him."

Signing Statements

Charlie Savage of the Boston Globe continues to play the one-man band on a wildly undercovered aspect of this underreported story: Bush's use of signing statements to flout the law.

Here's Savage over the weekend: "The board of governors of the American Bar Association voted unanimously yesterday to investigate whether President Bush has exceeded his constitutional authority in reserving the right to ignore more than 750 laws that have been enacted since he took office. . . .

"The ABA's president, Michael Greco, said in an interview that he proposed the task force because he believes the scope and aggressiveness of Bush's signing statements may raise serious constitutional concerns. He said the ABA, which has more than 400,000 members, has a duty to speak out about such legal issues to the public, the courts, and Congress. . . .

"William Sessions , a retired federal judge who was the director of the FBI under both Reagan and President George H.W. Bush, said he agreed to participate because he believed that the signing statements raise a 'serious problem' for the American constitutional system.

" 'I think it's very important for the people of the United States to have trust and reliance that the president is not going around the law,' Sessions said. 'The importance of it speaks for itself.' "

Another member, retired appeals court judge Patricia Wald, tells Savage that she is especially interested in studying how signing statements affect the federal bureaucracy.

Here, from the ABA, is the list of task force members .

The weekend before, Savage explained where all these signing statements are coming from: "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 administration's leading architect of the 'signing statements' the president has appended to more than 750 laws. . . .

"Cheney's office has taken the lead in challenging many of these laws, officials said, because they run counter to an expansive view of executive power that Cheney has cultivated for the past 30 years. Under the theory, Congress cannot pass laws that place restrictions or requirements on how the president runs the military and spy agencies. Nor can it pass laws giving government officials the power or responsibility to act independently of the president.

"Mainstream legal scholars across the political spectrum reject Cheney's expansive view of presidential authority, saying the Constitution gives Congress the power to make all rules and regulations for the military and the executive branch and the Supreme Court has consistently upheld laws giving bureaucrats and certain prosecutors the power to act independently of the president."

After an unprecedented number of signing statements, the White House laid low for a while.

But Cheney finally couldn't contain himself any longer, apparently. And here's the first Bush signing statement in three months , quietly filed away two weeks ago in response to the deeply threatening Coastal Barrier Resources Reauthorization Act of 2005 .

The law, sponsored by five Republicans from both houses, and passed by unanimous consent in the Senate and by voice vote in the House, directs the Secretary of the Interior to report to Congress on the creation of digital maps of the John H. Chafee Coastal Barrier Resources System units and other protected areas under a digital mapping pilot project.

But here's what Bush's signing statement says: "Section 3(c)(2) and section 4(c)(3)(C) and (D) purport to require executive branch officials to submit legislative recommendations to the Congress. The executive branch shall construe such provisions in a manner consistent with the Constitution's commitment to the President of the authority to submit for the consideration of the Congress such measures as the President judges necessary and expedient and to supervise the unitary executive branch."

In other words: You get your reports if I feel like giving them to you.

I wonder what the bill's sponsors -- including John Chafee's son, Sen. Lincoln Chafee of Rhode Island -- make of that. Maybe someone should ask them.

For More Information

For more on the Bush/Cheney expansion of executive power, see my May 3 column, Summer Grilling Season? ; my March 17 column, A Rebellion Around the Edges ; my December 19, 2005 column, Imbalance of Power? ; and my June 29, 2004 column, A Blow to the Executive Branch , which recounts the almost-forgotten Supreme Court ruling in which then-Justice Sandra Day O'Connor wrote "A state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. . . . Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."

Snowed Under

Neophyte press secretary Tony Snow yesterday committed the biggest blunder of his so-far hapless tenure.

Right out of the gates -- in answer to the very first question at yesterday's briefing , Snow made the startling assertion that the proposed constitutional amendment to ban gay marriage is a civil rights issue. Then he retreated into genuine or faked ignorance -- which is worse? -- about what he himself meant by civil rights.

"Q There is some criticism that the President's remarks today are merely intended to energize conservative supporters since there is little likelihood this is going to pass in the Senate. What's your response to that?

"MR. SNOW: Well, the response is, the President -- again, and we went through this last week, this is driven in many ways by the legislative calendar. The President is making his views known. Whether it passes or not, as you know, Terry, there have been a number of cases where civil rights matters have arisen on a number of occasions and they've been brought up for repeated consideration by the United States Senate and other legislative bodies."

CBS News correspondent Bill Plante couldn't let that one go:

"Q You mentioned civil rights. Are you comparing this to various civil rights measures which have come to the Congress over the years? Is this a civil right?

"MR. SNOW: Marriage? It actually -- what we're really talking about here is an attempt to try to maintain the traditional meaning of an institution that has maintained one meaning for a period of centuries, and for --

"Q Do you equate that with civil rights?

"MR. SNOW: No, I'm just saying, I think -- well, I don't know. How do you define civil rights?

"Q It's not up to me; up to you.

"MR. SNOW: Well, no, it's your question. So I need to get a more precise definition."

Gay Marriage Watch

Thomas M. DeFrank tells it like it is in the New York Daily News: "President Bush tossed another bone to his splintered political base yesterday, again embracing a doomed constitutional amendment banning gay marriage."

DeFrank adds: " 'He's not a homophobe and this isn't his thing,' a close Bush adviser said yesterday. 'But he has to do it.'

" 'The base needs shoring up,' echoed a GOP official, adding that many of Bush's most conservative supporters vigorously oppose his immigration reform package unveiled last month."

Michael Abramowitz and Charles Babington write in The Washington Post: " 'He does not want to be wrongly seen as driving this debate,' said Matt Daniels, president of the Alliance for Marriage, a leading advocate of the constitutional amendment and part of a small group of activists who met privately with Bush before his speech.

"Daniels and other conservatives professed themselves content with the president's statement, despite complaints from some of their allies that Bush should be doing more. . . .

"Bush appeared mindful of the minefield he was navigating yesterday. He appeared at a room in the Eisenhower Executive Office Building rather than the more symbolic Rose Garden, where activists were first told he would make his statement. The debate over the amendment, he said, should be conducted with 'tolerance and respect and dignity.' "

Jim Rutenberg writes in the New York Times: "Democrats have called the Republican push for the amendment a diversionary tactic that will not work this year, when voters are focused on other matters like rising gas prices and the war in Iraq. And some pollsters say the issue may not resonate as it did in 2004."

Bush spoke for all of 10 minutes .

Opinon Watch

E. J. Dionne Jr. writes in his Washington Post opinion column: "This month's offensive by President Bush and his allies in Congress against gay marriage and flag burning proves one thing: The Republican Party thinks its base of social conservatives is a nest of dummies who have no memories and respond like bulls whenever red flags are waved in their faces."

Eugene Robinson writes in his Washington Post opinion column: "The Decider's decision to whip up a phony crisis over same-sex marriage -- Values under attack! Run for your lives! -- is such a transparent ploy that even conservatives are scratching their heads, wondering if this is the best Karl Rove could come up with. Bush might as well open his next presidential address by giving himself a new title: The Distracter."

And here's Lou Dobbs at the top of the hour on CNN: "Tonight, the war in Iraq, record trade and budget deficits, failing public education, illegal immigration, border and port security. Those are some of the issues that the president and the U.S. Senate today did not take up. Instead, they took up the issue of gay marriage and the U.S. Constitution."

Pangloss Watch

Mark Silva blogged for the Chicago Tribune yesterday about how "the White House has taken to emailing updates on the news to all interested in reading the rest of the story. Today's synopsis of all the reasons that the forest is far greener than the media portrays it comes from Dan Bartlett, counselor to the president and author of a memo to all 'interested parties' circulated via White House email."

Silva publishes the whole memo, which is a classic in the art of spin.

Barlett's conclusion: "From uniting the world community in preventing Iran from making a nuclear weapon to successfully installing qualified officials at home, and from assisting the Iraqi people in setting up a unity government to overseeing a strong economy that continues to create jobs for American workers, President Bush's leadership is achieving a steady flow of results that do not always dominate the day's headlines on their own but that together represent real progress for the American people."

Earlier that morning, as I noted in yesterday's column , Karl Rove deputy Peter Wehner spread a similar message on The Washington Post's op-ed page, writing: "Off-key as it may sound in the current environment, a strong case can be made that in a number of areas there are positive trends and considerable progress."

Optimism is apparently a primary strategy at the White House. See also my May 18 column about Rove's chirpiness, and my March 21 column about Bush's incredible optimism.

ABC News's increasingly bizarre Note today publishes a fictionalized version of Bartlett's memo (without any disclosure to its readers). But I did like today's subhead: "The Bubble Gets Laminated."

Now, of course it's possible that things really are going better than they seem, and it's just the media's fault that the news is so grim, right?

So asked Washington Post media critic Howard Kurtz on his CNN show Sunday. Repeatedly.

Kurtz: "[W]ith rising casualties in Iraq and sinking poll numbers, is the president having a terrible year, or are the media just making it seem that way?"

And again: "Day after day the news from Iraq is consistently negative. Car bombs, roadside explosions and now disturbing allegations about the role of U.S. troops in the death of Iraqi civilians.

"President Bush's popularity is inextricably linked to developments in Iraq. His poll numbers have been low for months. Some Republicans are criticizing him on other issues, such as immigration, and the press seems to be constantly beating him up. Are the media accurately reflecting an administration that's lost its way or just piling on an embattled president?"

And again: "Has the Bush administration, which has gotten pretty bad coverage for the last year on all kinds of issues, including Iraq, gotten a raw deal from the press, or was that an accurate reflection of an administration that's had a pretty tough year?"

Neither of his guests -- not former Pentagon spokeswoman Torie Clarke, and certainly not Nation editor Katrina Vanden Heuvel -- took the bait.

Safavian Watch

Philip Shenon writes in the New York Times: "A former White House budget official acknowledged Monday that he had provided 'a lot of insight and advice,' including government information not available to the public, to the lobbyist Jack Abramoff in 2002."

Poll Watch

A new Gallup Poll finds Bush's approval rating up to 36 percent, with 57 percent disapproving. "This represents a modest improvement in that measure from recent weeks, a finding mirrored in several other national surveys. . . .

"While it is difficult to pinpoint a precise reason for Bush's improved rating, several events in recent weeks may have had an impact: Gas prices have stabilized (though they remain high), Bush's nomination of Henry Paulson as Secretary of the Treasury has been well-received, Bush addressed the nation regarding immigration, and he admitted some mistakes in his prior statements on the wars in Iraq and against Osama bin Laden.

"The June 1-4 poll shows about a 10 percentage-point increase in Bush's approval rating among Republicans, from 69% in the two May polls to 78% in the current poll."

Good One

Tony Snow did get off a wonderful line yesterday, in response to a question from Baltimore radio personality Lester Kinsolving, who asked him about Elisabeth Bumiller 's contention that "This White House, like all White Houses, is obsessed with the press."

Kinsolving: "My question, will you admit to this alleged obsession, or is this just one more New York Times exaggeration?"

Snow: "It's more a love affair than an obsession, Lester."

Off to the Border

Bush flies to Artesia, N.M., and Laredo, Tex., today to stump for his immigration proposals.

Ed Henry reports on CNN: "The jury is out on whether yet another trip down to the border will help the president break the stalemate on Capitol Hill over immigration reform, but it could help the White House in their efforts in trying to rebuild the president's image with another photo op down at the border, just like last month, when he headed down to the Arizona-Mexico border to highlight efforts to crack down on border security.

"You'll remember we saw some pictures of the president on an all- terrain vehicle, inspecting border activities. These trips square directly with what Time magazine reported back in April about what they referred to as an informal five-point recovery plan for the president by the new White House chief of staff, Josh Bolten. Point number one on that list, beef up the number of agents along the border, get the president down there to actually take some pictures. And Time magazine quoted one proponent of the Bolten plan as saying, 'It will be more guys with guns and badges. Think of the visuals. The president can go down and meet with the new recruits, he can go down to the border and meet with a bunch of guys and go around on an ATV.' "

Julie Mason blogs for the Houston Chronicle: "En route to Artesia, Air Force One is landing in Roswell, N.M. And today's date is 6/6/06, if anyone is keeping track."

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