Presidential Infallibility

by digby

Atrios flags this catch by Weldon Berger regarding Bush’s use of “signing statements” (which I admit I only vaguely understood until until recently.) Weldon writes:

Bush doesn’t veto bills because in his view, he doesn’t have to; he can simply ignore the ones he doesn’t like.

The administration have made that argument explicit, but only in terms of the president’s capacity as “commander in chief” during an endless war, as with the National Security Agency’s warrantless wiretapping, the decisions to ignore various Geneva Conventions and the selective suspension of habeas corpus. According to the Hutcheson story, though, it isn’t only legislation dealing with national security issues that the White House asserts the right to ignore.

The Hutcheson story lays out how Bush has used these signing statements:

President Bush agreed with great fanfare last month to accept a ban on torture, but he later quietly reserved the right to ignore it, even as he signed it into law.

Acting from the seclusion of his Texas ranch at the start of New Year’s weekend, Bush said he would interpret the new law in keeping with his expansive view of presidential power. He did it by issuing a bill-signing statement – a little-noticed device that has become a favorite tool of presidential power in the Bush White House.

In fact, Bush has used signing statements to reject, revise or put his spin on more than 500 legislative provisions. Experts say he has been far more aggressive than any previous president in using the statements to claim sweeping executive power – and not just on national security issues.

“It’s nothing short of breath-taking,” said Phillip Cooper, a professor of public administration at Portland State University. “In every case, the White House has interpreted presidential authority as broadly as possible, interpreted legislative authority as narrowly as possible, and pre-empted the judiciary.”

Signing statements don’t have the force of law, but they can influence judicial interpretations of a statute. They also send a powerful signal to executive branch agencies on how the White House wants them to implement new federal laws.

In some cases, Bush bluntly informs Congress that he has no intention of carrying out provisions that he considers an unconstitutional encroachment on his authority.

“They don’t like some of the things Congress has done so they assert the power to ignore it,” said Martin Lederman, a visiting professor at the Georgetown University Law Center. “The categorical nature of their opposition is unprecedented and alarming.”

Lest anyone think that this is a unique practice of the Bush administration, the article points out that other presidents have issued signing statements too. But Bush has made a fetish out of them by issuing more than 500 of them, often specifically citing the Presidential Infalliibility Doctrine (aka the “Unitary Executive Theory”).

Here’s what I find fascinating about that. Other presidents issued signing statements to bills. (I have no idea if they also cited the Presidential Infallibility Doctrine.)But they were almost always working with a congressional majority of the other party. You can see why a president would want to establish his interpretation of a hard fought negotiation with political opponents. So, although I am appalled at the idea of unchecked presidential power under any circumstances, I can at least see the logic of a typically authoritarian Republican using these tactics when dealing with a liberal Democratic congress. But you have to ask yourself why he can’t get laws passed exactly the way he wants them to in his rubber stamp congress? He couldn’t get Bill Frist, his own handpicked puppet, and Tom DeLay, his own Tony Soprano, to pass bills in language that he could agree with? After 9/11?

The answer is of course he could have. He chose not to:

The roots of Bush’s approach go back to the Ford administration, when Dick Cheney, then serving as White House chief of staff, chafed at legislative limits placed on the executive branch in the aftermath of the Watergate scandal and other abuses of power by President Nixon. Now the vice president and his top aide, David Addington, are taking the lead in trying to tip the balance of power away from Congress and back to the president.

Weldon Berger puts it this way:

The upshot of this is that until someone gets around to challenging the White House, Congress is just an advisory body with the authority to dole out bucketloads of cash. For now, we have a coup.

I can’t help but chuckle mordantly at these chickenshit congressional Republicans who have laid down their integrity and their duty to the constitution for this spoiled little Dauphin and his evil grey eminence, Dick Cheney. But then, they’ve been paid handsomely in mountainous piles of pork, so I suppose they’ve been amply rewarded for their pusillanimous gluttony.

Barring a filibuster, it looks as if Alito will be confirmed on a party line vote (or close to it.) There is little doubt in my mind that he believes in this doctrine. However, after Bush vs Gore, I also no longer have any illusions that the Supreme Court is above partisan politics. I suspect that Alito and others will have qualms about codifying the Unitary Executive Theory because someday a Democratic president could face a Republican congress.

But it doesn’t matter. The president doesn’t believe that the Supreme Court has the power to rule on the issue of presidential power in the first place. I’m sure the Federalist Society will come up with an appropriate remedy should a Democrat ever become president and decide to exercise the same power.

If you are interested in going deeply into this topic, Michael Froomkin is an expert on this doctrine of presidential infallibility (aka “the Unitary Executive Theory”) and has been writing about it for quite some time:

[This is] an argument popular with the Federalist Society, but not taken seriously by mainstream academics, for unlimited, uncontainable, Presidential power. The so-called “unitary executive” argument is set out most clearly in a Harvard Law Review article, Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1155 (1992). My explanation as to why this article is profoundly wrong and dangerous can be found at A. Michael Froomkin, The Imperial Presidency’s New Vestments, 88 Nw. L. Rev. 1346 (1994), which in turn sparked separate and not entirely consistent answers from each of the two authors of the Structural Constitution article. My rebuttal article Still Naked After All These Words, 88 Nw. L. Rev. 1420 (1994) is also online.

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