Congress v. Bush

By Dan Froomkin
Special to
Tuesday, July 25, 2006; 11:58 AM

As the United States wages war in the name of democracy, the question arises: What kind of democracy do we ourselves have in a time of war?

We may be getting a better idea if, as Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) is proposing, Congress grants itself the authority to sue President Bush over his "signing statements."

Bush's prodigious use of signing statements to assert his authority to ignore congressionally-passed statutes is unprecedented. Many of those demurrals in particular assert his mandate to wage war without interference from the other branches of government.

As a result, Specter's bill has the potential to spark a historic battle over the separation of powers.

Here's the transcript of Specter's speech on the Senate floor yesterday.

He noted yesterday's release of a report from an American Bar Association blue-ribbon panel, which concluded that Bush's signing statements undermine the rule of law and the constitutional system of separation of powers. He recalled the hearing that the Senate Judiciary Committee held on the subject a month ago.

And he announced: "During the course of the hearing before the Judiciary Committee, in my capacity as chairman, I made the request to Bruce Fein, who had been a lawyer in the Department of Justice during the Reagan administration, to take the lead and prepare legislation on the subject. Mr. Fein and my staff have been working on legislation. It is my expectation that, before the weekend, we will submit legislation to the Senate which will give the Congress standing to seek relief in the Federal courts in situations where the President has issued such signing statements and which will authorize the Congress to undertake judicial review of those signing statements, with the view to having the President's acts declared unconstitutional. That is our view as to the appropriate status of these signing statements."

I wrote about the Bar Association report in yesterday's column .

The topic came up ever-so-briefly at yesterday's White House press briefing , where spokesman Tony Snow continued to insist that the statements aren't such a big deal -- while punting on a direct response to the report.

Said Snow: "Keep in mind -- actually, in some ways, if you've read the signing statements -- because these have been cast as acts of civil disobedience, and they're not. The President does not have the luxury of practicing civil disobedience. The laws that have been enacted must be executed by the government. A great many of those signing statements may have little statements about questions about constitutionality. It never says, we're not going to enact the law. Furthermore, quite often, there are suggestions about ways to proceed that would be absolutely consistent with the congressional intent, and at the same time, consistent with the White House's views of the constitutional rights and privileges of the executive branch.

"We have not had time to digest it. The ABA got it into -- was issuing press releases before we got a hard copy. Give us a little bit of time to take a look, because we're being bombarded with quotes without having been given access to the document, itself. I think it's probably -- in fairness to them, we'll take a look. And you can follow up in coming days, because I'll keep asking our legal counsel."

Dick Polman blogs for the Philadelphia Inquirer: "I haven't heard talk like this from the legal establishment since Richard Nixon's executive excesses during Watergate."

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