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President George W. Bush is attempting a bold, aggressive, and systematic consolidation of power in the government’s executive branch, and he’s practically daring Congress to stop him. He is currently defending the National Security Agency’s domestic spying program, authorized in apparent contravention of the Foreign Intelligence Surveillance Act. And Bush’s December signing statement for the defense appropriations bill asserted the authority to ignore its prohibition on cruel, inhuman, and degrading treatment. These actions are not outliers. According to Portland State University professor Phillip Cooper, by the end of 2004, Bush had issued 108 signing statements offering some 505 constitutional objections to statutory provisions. If Bush’s signing statements are correct, Congress has wildly overestimated its authority. But if Bush is incorrect and Congress has generally acted within its constitutional authority, is the president obeying these laws? If the NSA program is any guide, Bush may have secretly instructed the executive branch to ignore some of them. Because Bush’s stance suggests a dramatic shift in the balance of power between the executive and legislative branches, the administration’s critics are scrutinizing it. In the particular case of the NSA program, the Department of Justice has recently responded to critics with a lengthy and, in the view of many legal experts, paltry defense. The administration claims that FISA’s explicit prohibition on warrantless domestic spying was overruled implicitly (and unwittingly) by Congress’ Authorization for Use of Military Force against al Qaeda. It also claims that FISA’s limitations on domestic spying probably encroach upon the president’s Article II power as commander in chief. FLAWED SOLUTIONS Yet despite the focus on Bush’s power grab, little has been said about what can or should be done to slow the executive juggernaut. The few proposed solutions seem unlikely to reach the heart of the matter — namely, Bush’s view that Congress may not legislate the executive branch’s conduct in matters that he deems related to the (boundless) war on terror.
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Former Vice President Al Gore, for example, has demanded that Attorney General Alberto Gonzales appoint a special counsel to investigate the NSA program. But Gonzales seems unlikely to follow that advice, given that he wrote the administration’s recent defense of the program. Even if Gonzales agreed with Gore, appointing a special counsel would place one of the nation’s most important legal questions in the hands of a single lawyer. It’s difficult to understand how a special counsel’s pronouncement on Bush’s commander-in-chief power could be constitutionally authoritative, either in the president’s mind or in anyone else’s. Harvard Law School professor David Barron has proposed a solution that, while superior to Gore’s, still leaves room for improvement. Barron has suggested that Congress amend FISA to authorize suits by particular citizens facing an increased likelihood of NSA spying. This approach aims to permit the Supreme Court to weigh in on the separation-of-powers concerns raised by the tension between FISA and the NSA program. One problem with this proposal is that Bush has evidently made sympathy for the executive branch the litmus test for his recent Supreme Court nominations of John Roberts Jr. and Samuel Alito Jr. UP TO CONGRESS In any event, it’s doubtful that case-by-case adjudication would satisfactorily address what has become a wholesale encroachment on congressional prerogatives. In many instances, the president’s defiance of legislation will escape adjudication, either because no one will possess a right to sue or because Bush will successfully keep his defiance secret in the first place. Obviously, no one thought to challenge the NSA program’s validity before The New York Times revealed the program’s existence. In other instances, courts might follow a legal canon requiring statutory interpretations that avoid raising constitutional questions. The Supreme Court might hold, for instance, that the Authorization for Use of Military Force amended FISA’s prohibition on warrantless spying (even though it probably didn’t), just to avoid considering whether a prohibition on warrantless spying would violate Article II (even though it probably wouldn’t). Thus, the president might prevail in court even if he has overestimated his Article II powers. And if a private litigant somehow achieves a court victory against the administration, the victory might be hollow. No court can undo spying or inhuman treatment committed in America’s name. Nor is there any real assurance that the administration would respect an adverse ruling, much less constrain its expansive view of presidential authority when the next issue arises. Each new statute could trigger new presidential defiance, with only a remote possibility of a subsequent ruling vindicating Congress. Because special counsels and courts are unlikely to end Bush’s assault on congressional power, Congress should consider a response aimed at persuading the president to scale back his reliance on Article II and to respect existing and future legislation. A congressional response is preferable not only because of the pitfalls of other approaches but also because the underlying issues concern, at bottom, the administration’s relationship with Congress. The president has deliberately brought a fight to Congress’ doorstep, but (just as deliberately) not beyond the threshold. Although Bush apparently believes that Congress has written more than 500 unconstitutional statutory provisions, he has not vetoed a single bill. And administration officials have explained that they did not seek FISA amendments authorizing the NSA program because of the possibility that Congress would resist them. The administration instead opted to conduct the NSA program secretly. And now that the secret has been revealed, it argues that Article II and the Authorization for Use of Military Force permit the president to do almost anything he wants. Bush apparently believes he can gain more power through guerrilla warfare against Congress than through direct confrontation — otherwise known as the legislative process — and he’s probably right. It’s up to Congress, therefore, to trigger that confrontation. HISTORY LESSONS History can guide Congress’ response here because, although the extent of Bush’s assault on congressional power is arguably unprecedented, his methods aren’t. Many presidents have defied legislation — sometimes with good reason — and Congress has occasionally fought back. In the mid-1980s, for instance, President Ronald Reagan issued a signing statement declaring portions of the Competition in Contracting Act unconstitutional (because of powers it vested in the comptroller general). The administration subsequently directed executive branch officials not to implement the disputed provision. After a district court upheld the law’s constitutionality, Attorney General Edwin Meese testified to Congress that the administration disagreed with the lower court’s ruling and would continue its noncompliance. But Meese relented after the House Judiciary Committee — and, in particular, then-Chairman Peter Rodino (D-N.J.) — threatened to eliminate funding for the attorney general’s office, including funds for salaries. And Reagan and Meese got off easy, at least compared with President Andrew Johnson, who barely survived impeachment proceedings based on alleged statutory defiance. Ten of the 11 articles of impeachment approved by the House against Johnson concerned his removal of Secretary of War Edwin Stanton, allegedly in violation of the Tenure of Office Act of 1867. Johnson believed the act did not actually prohibit Stanton’s removal and was, in any event, unconstitutional. His stance mirrors the Bush administration’s view of FISA, which the administration says does not prohibit the NSA program and is probably unconstitutional, anyway. These historical examples do not by themselves prove that Bush deserves to be impeached or that Attorney General Gonzales deserves to lose his paycheck. Many presidents have ignored legislation without facing congressional backlash. And Johnson’s objection to the Tenure of Office Act was ultimately vindicated, when the Supreme Court struck down similarly restrictive legislation in 1926. But these examples show that Congress is not powerless against an overreaching executive, even one who regards laws as merely advisory. They also suggest that we should stop thinking of the weapons in Congress’ arsenal, including the power of the purse and the impeachment power, exclusively as instruments of partisan politics. Instead, we need to start seriously thinking of them as checks and balances necessary to preserve the constitutional division of power. And unless Bush is right that Congress should have virtually no say in how the war on terror is conducted (aside from signing the checks), our executive needs some serious checking and balancing. On Feb. 7, when the Senate Judiciary Committee begins hearings on the NSA program, we will begin to learn whether Bush’s power grab will spark a congressional showdown. It’s conceivable that the administration can be persuaded to engage the legislature, as opposed to ignoring it, without facing the threats levied against Johnson, Reagan, and Meese. But it would be wrong to suppose that Congress can regain influence on Bush’s war on terror without credibly threatening serious retaliation designed to make him think twice about current and future defiance. The first step toward winning a fight, after all, is acknowledging that you’re in one.

Matthew R. Segal is an associate in the D.C. office of Goodwin Procter. The views expressed are his own, not necessarily those of his firm.

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