Above the Law...?

Article 2 - The Executive Branch
Section 2 - Civilian Power over Military, Cabinet, Pardon Power, Appointments

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Article 2 - The Executive Branch
Section 3 - State of the Union, Convening Congress

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

If you will notice, in these relevant sections of the U.S. Constitution, there is no mention made of the ability of the President or Executive Branch to make laws. That power lies solely with Congress. The interpretation of law lies, not with the President or the Executive Branch, but with the Judicial Branch. The only powers the President or Executive Branch has with respect to laws passed by Congress lies with signing them into law or vetoing them in toto, and the enforcement of said laws.

Yet President Bush, after signing the renewal of the USA PATRIOT Act, issued a signing statement which seems to place the president above the law. Now, signing statements are a tool which has been commonly used for a number of years by presidents to voice their opinions on laws passed by Congress which contain provisions they find disagreeable, but insufficient to justify a veto of the bill. That's all they were used for until Dubbyuh swaggered into the White House.

The signing statement on PATRIOT Act renewal was quietly issued after all the cameras had been turned off...The press corps had been dismissed, and nobody was around to witness this bit of skullduggery. The signing statment, in short, says that Dubbyuh does not feel bound by the notification provisions of the Act which requires that the Executive Branch inform Congress of how the powers outlined in the Act were being used. This information could be witheld at his discretion, citing potential damage to "foreign relations or national security". Notice that "national security" is sucking hind teat to "foreign relations". Dubbyuh goes on to say that, "The executive branch shall construe the provisions . . . that call for furnishing information to entities outside the executive branch . . . in a manner consistent with the president's constitutional authority to supervise the unitary executive branch and to withhold information . . . ".

But, just what is this "unitary executive branch"? Again, looking back to the powers outined for the Executive Branch in Article 2, Sections 2&3, there is no mention of a "unitary executive branch". The root of this doctrine lies in what is known as the "coordinate construction approach", which states that, "...all three branches of the federal government have the power and duty to interpret the Constitution." But the Bush administration takes this notion to its extreme in asserting that this view allows him to actually over-rule or even go around the Legislative and Judicial branches. To quote Jennifer Van Bergen from her article for Findlaw's Writ:

This is a form of presidential rebellion against Congress and the courts, and possibly a violation of President Bush's oath of office, as well.

After all, can it be possible that that oath means that the President must uphold the Constitution only as he construes it - and not as the federal courts do?

And can it be possible that the oath means that the President need not uphold laws he simply doesn't like - even though they were validly passed by Congress and signed into law by him?

In short, the president has declared in this signing statement, and others, that he stands outside the law, and is a law unto himself. And this clearly stands outside the scope of Presidential powers as outlined in Article 2 of the Constitution and, in my uneducated opinion, falls within the realm of high crimes and misdemeanors as outlined in Article 2, Section 4 of the Constitution.

If the President continues to go unchallenged by Congress in this arena, Congress may as well pack their bags and go home, as they will have allowed themselves to slip into irrelevance. Their services will no longer be needed, as the President has usurped the power of Congress to make laws. The Judicial branch may soon be relegated to the same status, as newly appointed Justice Samuel Alito is a long time supporter of just such unlimited presidential power.

This abuse of power by the Bush administration poses an unprecedented threat to the very rule of law withint this nation, and the Constitution upon which these laws rest. Such power gathered into the hands so few people, with no accoutability to speak of, represents a deadly threat to democracy and its institutions in this country.

Other Resources:

The Problem with Presidential Signing Statements: Their Use and Misuse by the Bush Administration - John Dean

Bush shuns Patriot Act requirement - Charlie Savage The Boston Globe

Alito & the Ken Lay Factor - Robert Parry