One Branch, Two Twigs

It has not been that long, only 1998, since the Supreme Court struck down the line-item veto authority that Congress had conferred on President Clinton in 1996. What an extraordinary piece of legislation. Imagine, a Republican controlled legislature, so burdened by its inability to control rampant spending, giving the most despised Democratic president in decades the ability to pick through bills and discard all the bits and pieces he found to be, at his own discretion, excessive. Therein lies the power of election-year jitters.

Only two years after the Contract With America, the GOP was trying to back up its anti-spending rhetoric by giving a president from the party across the aisle unprecedented executive power.

A photograph from 1998, on the day of the Supreme Court ruling, shows Democratic Senators Carl Levin and Robert Byrd gleefully clutching their copies of the Constitution as they praise the wise and beneficent opinion of the Judicial Branch.

Possibly, it was a positive development that Congress came to the conclusion that it could not be wholly trusted with the nation’s coffers, but the line-item veto ripped billions of dollars of budget control from Congress’s hands, and had the potential to create a relationship between the White House and Congress that would have resembled a feudal system wherein a king lavishes lands and title on only loyal noblemen, and everyone else gets left behind.

Contrast this situation from the last presidency with today. During the presidency of George W. Bush, and most especially in the aftermath of the 9/11 attacks, Congress has allowed themselves to be marginalized. Unlike in 1996, however, the president has seized greater power much more than Congress has given it away, and in far more disturbing ways.

Little did Congress know, or admit publicly, that in passing a resolution to allow President Bush to conduct the war on terror as he saw fit, that he would interpret this as legal justification for applying a line-item veto to areas of the Constitution wherever he saw it as necessary. Over the last four years, the nation has seen just what this new executive behavior means.

Secret detentions, of Americans and foreigners alike, rendition of detainees to brutal regimes, sanctioned torture of detainees, and illegal, warrantless eavesdropping on Americans are the most recognizable of the Bush administration’s headline capturing activities. But the most insidious may have come with the nomination of Samuel Alito to the Supreme Court. With this nomination, President Bush has made public his desire to further expand the power of the presidency. Not just a conservative, but a man who believes wholeheartedly in the unitary executive, Judge Alito promises to rebut every challenge to the expansion of presidential power that makes its way to the courts, specifically, the signing statements that the president issues when he signs a bill.

In the past, these statements were little more than pomp, a way for the president to add his imprimatur to a bill beyond his signature, or a loose guide for conduct by his staff. President Bush is attempting to change the measure of these statements, however, by prescribing to them the weight of law itself. (Judge Alito, when he worked within the Reagan administration, was one of many advocates working then to garner this power for the presidency.) Therefore, if the president disagrees with the substance of a bill, as in the “torture amendment” passed by Congress at the close of the last session, he can attach a signing statement to the bill that for all intents and purposes negates the law. The statement attached to the torture amendment reads that the administration would interpret the law, “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 judicial power.”

The White House has sent a clear message that it believes it has the power to interpret a law to the point of rendering it non-existent. Whereas the line-item veto was threatening budget dispersals, this new wrinkle from the executive branch threatens to make Congress irrelevant. But how to cement this power completely, not just the Executive over the Legislative Branch, but the Executive over all the government? Enter Judge Alito.

When he becomes a Justice of the Supreme Court, Alito will be but one vote on a court of nine. However, the seat he will occupy, that of Justice Sandra Day O’Connor, has often been the deciding vote in matters up and down the entire spectrum of the Court’s docket. Alito appears to be a Justice who will overwhelmingly side not just with the conservative point of view, but also with the administration when cases of the unitary executive come before the Court. It looks more and more as if the Alito nomination, and the presumed legitimacy to executive power he will confer on the president in Supreme Court rulings, is phase 2 of a concerted effort to raise the power of the presidency to unassailable heights.

Instead of waiting for the court to bring the president to heel, as it has done in the past, Congress needs to reassert its authority in the letter of the law. Congress needs to make clear to the president that the Executive Branch does not, and should not, have the luxury of interpreting laws to suit its own desires. How they do this is up to them, whether it be new legislation or even censure, but it is clear that they can no longer expect the Supreme Court to restore powers they’ve either given away voluntarily, or had snatched from them by an administration increasingly beyond the bounds of the Constitution.