Today's Boston Globe

SCOT LEHIGH
Our monarch, above the law

By Scot Lehigh, Globe Columnist | May 2, 2006

HAS GEORGE W. Bush come to believe he's king?

That's the question that springs to mind upon reading Charlie Savage's
front-page report in Sunday's Globe detailing the president's sotto
voce assertion that he can disregard laws if he thinks they impinge on
his constitutional powers.

That novel claim resides in the ''signing statements" the
administration issues outlining its legal interpretation of laws the
president has signed -- interpretations that often run contrary to the
statute's clear intent.

As Savage reports, Bush has registered hundreds of those reservations,
adding them to statutes on subjects ranging from military rules and
regulations to affirmative action language to congressionally mandated
reporting requirements to protections Congress has passed for
whistle-blowers to legal assurances against political meddling in
government-funded research.

Bush's position reduces to this: The president needn't execute the laws
as they are written and passed, but rather, has the right to implement
-- or ignore -- them as he sees fit. (Were it not for our pesky written
Constitution, perhaps George II could take his cue from Charles I,
dismiss Congress, and rule -- ah, govern -- without any legislative
interference whatsoever.)

Even members of the president's own party have balked at that claim.

After Republican Senator John McCain succeeded in passing a ban on the
torture of detainees in US custody, forcing it upon an unwilling White
House, the president's signing statement made it clear he thought he
could disregard the law if he deemed it necessary. That brought a
pointed rebuke from McCain and fellow Republican Senator John Warner.

Other presidents have periodically appended signing statements to
legislation, setting the objectionable precedent that Bush has followed
here. But as Savage reports, this president has taken it to a new
level, issuing such statements on more than 750 laws, or on more than
10 percent of the bills he has signed.

Rendering Bush's assertion more worrisome is this reality: Because so
much of what this administration does is shrouded in secrecy, it's hard
to know which laws are being followed and which are being ignored.

That makes it difficult for matters to ripen into a court challenge,
notes Boston attorney Harvey Silverglate. ''He is setting it up so that
the people hurt by what this administration is doing are unable to get
to court, because it is secret," Silverglate says.

We certainly do know that this president is ready to ignore even
established laws if he finds them too cumbersome. Although the Foreign
Intelligence Surveillance Act of 1978 prohibits warrantless
eavesdropping on Americans, Bush has authorized such snooping. In
trying to justify that, the administration has claimed that Congress's
post-Sept. 11 resolution authorizing force against terrorists somehow
imparted the authority for warrantless wiretapping.

That's farfetched, and members of the president's own party have said
as much.

Congressional figures of both parties have signaled a willingness to
consider the president's concerns with a wiretap-approval process that
is already all but pro forma.

The White House, however, has displayed little interest in meaningful
compromise.

Bush has a recourse if he doesn't agree with a newly passed law, of
course: He can veto it. (So far he hasn't exercised that prerogative
even once.)

But the president shouldn't be allowed to quietly disregard or
reinterpret provisions of a law he dislikes, for in doing so, he is not
protecting his own authority, but rather usurping the legitimate power
of Congress. Further, his assumption that it is within his purview to
decide whether a law is constitutional treads on ground that is the
clear province of the Supreme Court.

Thus far, the Republican congressional leadership has been dismayingly
compliant. But one Republican unwilling to let Bush interpret the law
as he sees fit is Senator Arlen Specter, chairman of the Senate
Judiciary Committee.

Specter, who is pushing legislation to have the closed-door FISA court
rule on the constitutionality of Bush's wiretapping program, noted last
week that he had filed -- but would not seek an immediate vote on -- an
amendment to block funding for any domestic eavesdropping until the
administration provides Congress with much more information.

It speaks volumes about the attitude of this White House that a member
of the president's own party would have to make such a move to protect
bedrock constitutional principles.

Yet it will probably take something much more dramatic than Specter's
tentative threat to remind George W. Bush that he's president, and not
king.