Executive Power and the Election


The New York Review of Books asked a number of its high profile contributors for their take on the upcoming election (Spoiler Alert: They're all in favor of Barack Obama). Gary Wills made a particularly strong case for why the Republicans should lose:

When Dick Cheney was vetting the last two candidates for the [Supreme] Court, he did not really care about their views on abortion. He concentrated on their attitude toward the many executive usurpations of the Bush administration, and he was satisfied on this account with John Roberts and with Sam Alito.

When Charles Gibson was questioning Governor Palin, he should not have asked about the Bush Doctrine (a wavering concept, and touching only one matter, war). He should have asked for her views on the unitary executive—the question Cheney asked the Court nominees. That is what matters most to the Bush people. It affects all the executive usurpations of the last seven years—not only the right of the president to wage undeclared wars, but his right to create military courts, to authorize extraordinary renditions, secret prisons, more severely coercive interrogation, trials with undisclosed evidence, domestic surveillance, and the overriding of congressional oversight in every aspect of government from energy policy to health services.

The use of presidential signing statements to undermine federal law has been another aspect of Bush's executive power grab. As The Boston Globe's Charlie Savage has extensively reported, Bush has issued more than a 1100 signing statements claiming the authority to reject or ignore portions of the very laws he has just signed.

In December 2005, for instance, Bush signed the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act. This exhaustively titled bill was most notable for containing the so-called McCain Amendment, which prohibited "cruel, inhuman, or degrading treatment or punishment of persons under custody or control of the United States government."

At the time, the bill's passage was seen as a victory against waterboarding and other torture tactics. But consider the passage from Bush's signing statement that specifically refers to the McCain Amendment:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, 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 the judicial power.

President Bush, in other words, would be waging the War on Terror as he saw fit, regardless of what Congress or the courts had to say about it.