The Founding Guys feared tyranny above all else. That’s why they crafted a Constitution with built-in protections against tyranny. These protections are referred to as “separation of powers” or “checks and balances.”

This page nicely explains the protections at an 11th-grade level. At the federal level, “separation of powers” calls for the government to be divided into three branches, with each branch having particular powers. At the same time, each branch has certain powers over the other branches. This is the “checks and balances” part — it prevents any one branch from gaining too much power over the other two. Here’s another kid-level page explaining the same thing. If you went to school in the United States you should have learned this stuff by no later than the sixth grade.

It appears Dear Leader napped through sixth grade Social Studies. Oh, he got the “separation of powers” part of the lesson. He likes that part. But the “checks and balances” part — not so much. Bush’s “unitary executive” doctrine says that he can ignore the other two branches of government whenever he likes, because any attempt to oversee or regulate what Bush wants to do is an encroachment on his powers.

What is the “unitary executive” doctrine? Jennifer Van Bergen wrote for FindLaw,

The unitary executive doctrine arises out of a theory called “departmentalism,” or “coordinate construction.” According to legal scholars Christopher Yoo, Steven Calabresi, and Anthony Colangelo, the coordinate construction approach “holds that all three branches of the federal government have the power and duty to interpret the Constitution.” According to this theory, the president may (and indeed, must) interpret laws, equally as much as the courts.

As a practical matter, since the executive branch is the one that executes and enforces law, this doctrine says the President can override whatever Congress and the Courts might think and put his own revision of law into effect. Van Bergen continues,

The coordinate construction theory counters the long-standing notion of “judicial supremacy,” articulated by Supreme Court Chief Justice John Marshall in 1803, in the famous case of Marbury v. Madison, which held that the Court is the final arbiter of what is and is not the law. Marshall famously wrote there: “It is emphatically the province and duty of the judicial department to say what the law is.”

Of course, the President has a duty not to undermine his own office, as University of Miami law professor A. Michael Froomkin notes. And, as Kelley points out, the President is bound by his oath of office and the “Take Care clause” to preserve, protect, and defend the Constitution and to “take care” that the laws are faithfully executed. And those duties require, in turn, that the President interpret what is, and is not constitutional, at least when overseeing the actions of executive agencies.

However, Bush’s recent actions make it clear that he interprets the coordinate construction approach extremely aggressively. In his view, and the view of his Administration, that doctrine gives him license to overrule and bypass Congress or the courts, based on his own interpretations of the Constitution — even where that violates long-established laws and treaties, counters recent legislation that he has himself signed, or (as shown by recent developments in the Padilla case) involves offering a federal court contradictory justifications for a detention.

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?

Also at FindLaw, John Dean wrote in “Vice President Cheney and The Fight Over ‘Inherent’ Presidential Powers: His Attempt to Swing the Pendulum Back Began Long Before 9/11,”

[Attorney General Alberto] Gonzales’ position is that the President can make his own rules, notwithstanding the existence of a federal statute – the Foreign Intelligence Surveillance Act (FISA) – that is directly on point, expressly prohibiting warrantless electronic surveillance. For the Attorney General to defend such a view defies “the equilibrium of our constitutional system” to use Chairman Specter’s words – treating Congress’ clear word on the matter, as if had never been spoken at all.

Warrantless wiretapping, moreover, is not just a separation-of-powers violation; it is also a federal crime.

In effect, Bush thinks he’s above the law.

Equally illogical is Vice President Dick Cheney’s position — and if anyone does not believe that Cheney is not behind this ruckus, they do not know Cheney or his history. Let me start by describing his give-no-quarter stance.

After the Attorney General’s testimony concluded, and given the doubts expressed about it by both Republicans and Democrats on the Senate Judiciary Committee, PBS newsman Jim Lehrer asked Cheney if President Bush would cooperate with Congress to “settle some of the legal disputes about the NSA surveillance program?” Cheney responded with a polite, hell no. (Incidentally, this was Cheney’s first interview with other than a conservative news person.) “We believe, Jim, that we have all the legal authority we need,” Cheney said. “[The President] indicated the other day he’s willing to listen to ideas from the Congress, and certainly they have the right and the responsibility to suggest whatever they want to suggest.”

The President will listen to ideas and suggestions from the Congress, but he will not follow a law it has written (and a prior President has signed into law) on the subject? This is not exactly a logical stance.

No, but it is setting us up for a nice constitutional crisis.

Joyce Appleby and Gary Hart write,

Relying on legal opinions from Attorney General Alberto R. Gonzales and Professor John Yoo, then working in the White House, Bush has insisted that there can be no limits to the power of the commander-in-chief in time of war. More recently the president has claimed that laws relating to domestic spying and the torture of detainees do not apply to him. His interpretation has produced a devilish conundrum.

President Bush has given Commander-in-Chief Bush unlimited wartime authority. But the “war on terror” is more a metaphor than a fact. Terrorism is a method, not an ideology; terrorists are criminals, not warriors. No peace treaty can possibly bring an end to the fight against far-flung terrorists. The emergency powers of the president during this “war” can now extend indefinitely, at the pleasure of the president and at great threat to the liberties and rights guaranteed us under the Constitution.

“We now confront a constitutional crisis,” say Appleby and Hart, who bring up some opinions offered by James Madison in the Federalist Papers to explain why this is not how it’s supposed to work. And, frankly, you don’t have to be a lawyer or constitutional scholar to see this is true.

Much has been made of the fact that Cheney et al. want to “restore” presidential power that Congress stripped away after Watergate. This bit of history leaves out the fact that by Nixon’s time presidential power had expanded to an unprecedented degree. It’s not as if Congress took powers away that had been assumed by all the other presidents before Nixon. Indeed, it was a common belief among Whigs that the President should do little more than execute the will of Congress. At various times — the latter part of the Andrew Johnson administration comes to mind — Congress pretty much ran everything, and the President was little more than a figurehead who was cleaned up and trotted out for ceremonial purposes. I’m not saying that was ideal; I’m just saying that’s how it was at times. What Cheney wants to restore is not some Golden Age of Constitutional Originalism; he just wants to restore the Golden Age of Nixon.

But what is disheartening — not surprising, but disheartening — is the degree to which allegedly “libertarian” conservatives either defend the “unitary executive” doctrine or swat it away as some niggling detail only important to liberals. Glenn Greenwald wrote about this here and elsewhere.

… many Bush defenders are now arguing, as they must, that a “wartime” President’s power is so vast that it even includes this law-breaking power.

But the same individuals peddling this theory are simultaneously objecting quite vigorously to the notion that they are bestowing George Bush with the powers of a King. Bill Kristol and Gary Stevenson, for instance, called such claims “foolish and irresponsible” in the very same Washington Post Op-Ed where they argued that Bush need not “follow the strictures of” (i.e., obey) the law, and the President himself angrily denied that he is laying claim to a “dictatorial position” in the very same Press Conference where he proudly insisted on the right to eavesdrop on Americans without a warrant even though FISA makes it a crime to do so.

Bush supporters argue that the unitary executive doctrine does not amount to giving Bush dictatorial power, but they’ve yet to articulate where the limits are. Instead, they wave the flaming WTC tower and insist Bush must have these powers to protect us from terrorists.

Susie Madrak wrote today,

People have this Saturday-matinee picture in their heads of what a coup looks like. It involves black-and-white footage of modern-day Nazis, and tanks in the street. They believe those who destroy our democracy will telegraph their intentions in such a way that any action movie fan will easily identify the bad guys.

It never occurs to them the bad guys won’t sell themselves as such, because we are a nation largely immune to political nuance. And that is why we are watching our great democratic experiment being flushed down the bowl.

God help us.

Along these lines — go read one of the all-time great anti-Bush rants. Jane Smiley says it all.

Junior is sneaking about behind Congress’s back and making up his own laws. For example, last week Charlie Savage of the Boston Globe described the signing of the renewed Patriot Act:

The bill contained several oversight provisions intended to make sure the FBI did not abuse the special terrorism-related powers to search homes and secretly seize papers. The provisions require Justice Department officials to keep closer track of how often the FBI uses the new powers and in what type of situations. Under the law, the administration would have to provide the information to Congress by certain dates.

So what did Bush do?

Bush signed the bill with fanfare at a White House ceremony March 9, calling it ”a piece of legislation that’s vital to win the war on terror and to protect the American people.” But after the reporters and guests had left, the White House quietly issued a ”signing statement,” an official document in which a president lays out his interpretation of a new law.

Sneaky.

In the statement, Bush said that he did not consider himself bound to tell Congress how the Patriot Act powers were being used and that, despite the law’s requirements, he could withhold the information if he decided that disclosure would ”impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive’s constitutional duties.”

Bush wrote: ”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 . . . ”

The statement represented the latest in a string of high-profile instances in which Bush has cited his constitutional authority to bypass a law.

How alarmed should we be about this “unitary executive” stuff? I think the answer is, very.

This FindLaw column of Jan. 9, 2006, by Jennifer Van Bergen provides some good background on signing statements and the unitary executive doctrine. First, let’s look at signing statements:

Presidential signing statements have gotten very little media attention. They are, however, highly important documents that define how the President interprets the laws he signs. Presidents use such statements to protect the prerogative of their office and ensure control over the executive branch functions.

Presidents also — since Reagan — have used such statements to create a kind of alternative legislative history.

The alternative legislative history would, according to Dr. Christopher S. Kelley [PDF], professor of political science at the Miami University at Oxford, Ohio, “contain certain policy or principles that the administration had lost in its negotiations” with Congress.

In other words, Bush can concede a point to Congress, which then writes a law for him to sign, and then after he signs it he writes up the part he had conceded and puts it back into the law.

The development of this particular constitutional end-run is attributed to Daddy Bush by Professor Kelly:

The Bush I administration, for example, worked with fellow Republicans in Congress to create an alternative legislative history on important bills. The alternative legislative history would contain certain policy or principles that the administration had lost in its negotiations with the Democrats. Thus when President Bush signed the bill into law, he would use the signing statement to direct executive branch agencies to the alternative legislative history as guidance of congressional intent.

No wonder Junior hasn’t felt the need to use his veto power. He essentially “vetoes” by rewriting law as he chooses.

Are these signing statements a new thing? Well, yes and no. Ms. Van Bergen says they started with James Madison.

From President Monroe’s administration (1817-25) to the Carter administration (1977-81), the executive branch issued a total of 75 signing statements to protect presidential prerogatives. From Reagan’s administration through Clinton’s, the total number of signing statements ever issued, by all presidents, rose to a total 322.

In striking contrast to his predecessors, President Bush issued at least 435 signing statements in his first term alone.

According to “The Legal Significance of Presidential Signing Statements,” prepared by Assistant Attorney General Walter Dellinger, November 3, 1993 [PDF], since Madison U.S. presidents have used signing statements two different ways.

First, presidents use signing statements “to explain to the public, and more particularly to interested constituencies, what the President understands to be the likely effects of the bill, and how it coheres or fails to cohere with the Administration’s views or programs.”

As I understand this, the President might write “OK, I signed the fool bill, but when we go ahead with this thing it’s going to turn everybody’s ears bright green. Don’t say I didn’t warn you.”

Second, presidents use signing statements “to guide and direct Executive officials in interpreting or administering a statute.” I haven’t found a specific example of this circumstance, but if anyone else finds one please post it in the comments.

For many years presidential signing statements were only used as explained above. And in all those years I don’t believe anyone was much bothered by them. But along came the Reagan Administration, and the Reaganites came up with a new and more controversial twist, which was —

… the use of signing statements to announce the President’s view of the constitutionality of the legislation he is signing. This category embraces at least three species: statements that declare that the legislation (or relevant provisions) would be unconstitutional in certain applications; statements that purport to construe the legislation in a manner that would “save” it from unconstitutionality; and statements that state flatly that the legislation is unconstitutional on its face. Each of these species of statement may include a declaration as to how — or whether — the legislation will be enforced. … More boldly still, the President may declare in a signing statement that a provision of the bill before him is flatly unconstitutional, and that he will refuse to enforce it.

Now, there’s nothing in the Constitution that says a President can’t express an opinion that a law is unconstitutional. The notion that the Supreme Court is the only and final arbiter of constitutionality developed in the years after the Constitution was ratified. But until Reagan if a President believed a law was unconstitutional he vetoed it. And then the bill went back to Congress, which could decide to override the veto, or not, or revise the bill per the President’s request.

But now the President has made himself the final arbiter of constitutionality. Even if an overwhelming majority of Congress were to disagree with the President’s interpretation of the Constitution — too bad. And in the case of law that is meant to provide some congressional oversight of questionable presidential practices — too dangerous.

John Dean wrote for FindLaw (January 13, 2006):

Given the incredible number of constitutional challenges Bush is issuing to new laws, without vetoing them, his use of signing statements is going to sooner or later put him in an untenable position. And there is a strong argument that it has already put him in a position contrary to Supreme Court precedent, and the Constitution, vis-à-vis the veto power.

Bush is using signing statements like line item vetoes. Yet the Supreme Court has held the line item vetoes are unconstitutional. In 1988, in Clinton v. New York, the High Court said a president had to veto an entire law: Even Congress, with its Line Item Veto Act, could not permit him to veto provisions he might not like.

The Court held the Line Item Veto Act unconstitutional in that it violated the Constitution’s Presentment Clause. That Clause says that after a bill has passed both Houses, but “before it become[s] a Law,” it must be presented to the President, who “shall sign it” if he approves it, but “return it” – that is, veto the bill, in its entirety– if he does not.

Following the Court’s logic, and the spirit of the Presentment Clause, a president who finds part of a bill unconstitutional, ought to veto the entire bill — not sign it with reservations in a way that attempts to effectively veto part (and only part) of the bill. Yet that is exactly what Bush is doing. The Presentment Clause makes clear that the veto power is to be used with respect to a bill in its entirety, not in part.

As I recall, Junior wants line item veto power, too. I’m not sure how he plans to get around SCOTUS on that.

Above I cited a document written by Walter Dellinger, Assistant Attorney General, in 1993. Dellinger expressed the opinion that that use of signing statements to, in effect, veto part of a piece of legislation was constitutional. This was before SCOTUS ruled on line-item vetoes, and I think it can be argued that Junior has taken the signing statement thing way further than past presidents. But be prepared for the “Clinton did it too” arguments from the Right if Bush’s use of signing statements ever heats up into a big controversy on the Blogosphere.

More on signing statements, from an editorial in today’s Boston Globe:

BENJAMIN FRANKLIN’S warning that the Founding Fathers had created ”a republic, if you can keep it” came home this week with The Boston Globe’s report that President Bush had once again added a signing statement to a bill, undermining the intent of Congress. Bush said he would not be held to the USA Patriot Act’s requirement that the Justice Department keep closer track of the FBI’s new powers and report on their use to Congress. Weeks before, Bush used a signing statement to exempt himself from Senator John McCain’s antitorture amendment. …

… When Bush crossed his fingers behind his back on the antitorture bill, Senators McCain and John Warner, both Republicans, issued a statement saying Congress had specifically denied the president the waiver authority he claimed in the signing statement. They said the Armed Services Committee would monitor implementation of the law ”through strict oversight.” By the same token, Congress will have to insist on the reports required by the Patriot Act or watch as the principle of separation of powers turns into the practice of separation of the powerless.

Remember, back in Daddy’s day, Daddy would work with Republicans in Congress to establish an “alternative legislative history” of a bill that could be imposed by Daddy’s fiat after the bill was signed. But Junior ain’t workin’ with anybody in Congress. He’s just making up his own laws. This is one clue that Junior is going further with the signing statements than any president has gone before.

Glenn Greenwald wrote today:

The Republicans and Democrats on the House Judiciary Committee submitted detailed questions to the Bush Administration regarding the NSA program, and the DoJ’s responses to both the Democrats’ questions and its responses to the Republicans’ are now available.

There are numerous noteworthy items, but the most significant, by far, is that the DoJ made clear to Congress that even if Congress passes some sort of newly amended FISA of the type which Sen. DeWine introduced, and even if the President “agrees” to it and signs it into law, the President still has the power to violate that law if he wants to. Put another way, the Administration is telling the Congress — again — that they can go and pass all the laws they want which purport to liberalize or restrict the President’s powers, and it does not matter, because the President has and intends to preserve the power to do whatever he wants regardless of what those laws provide.

The righties can make all the “Clinton did it too” arguments they can pile into a garbage truck. Junior’s out of control. He must be stopped.

A recent commenter wrote,

What I find baffling is how this Administration, along with the Republican party, are unable or unwilling to affect change despite holding all the cards. They control all three branches of government (yes, one could make arguments about Judicial, but they don’t make laws… yes, that too can be argued… I digress), but lately they seem content to lay blame on everyone else for the nations current woes/issues.

Well, NorthOf49, I’ve been running this comment through my head and I have an answer. Actually, a bunch of answers.

First, I think the Bush Administration and its congressional enablers came into power with a short list of goals that they reached pretty efficiently. These goals included providing “tax relief” for the wealthy, deposing Saddam Hussein, and consolidating power so that the Dems could never take it back. That last one may be unraveling (time will tell), but the first two items are well in hand. And they’ve made great progress on other goals, such as lowering the cost of labor and scrapping environmental protections that get in the way of exploiting resources for profit.

In the words of PZ Myers, “The Republican agenda is to turn the United States into a third-world shithole.” And you’ve got to admit they’ve gone a long way toward reaching that goal.

However, whenever We, the People, desire other actions by our government (like, maybe, not turning the U.S. into a third-world shithole) the Bushie motto is — that’s not my job.

For a glimpse into the Republican brain, catch this bit snipped from an Adam Nagourney-Elisabeth Bumiller New York Times article:

One person who met Mr. Rove said he attributed Mr. Bush’s problems more to external events, in particular Hurricane Katrina and Iraq, than to anything the White House did wrong.

That sentence may be a great litmus test of political proclivity. If you think it’s perfectly reasonable, you may be a rightie.

E.J. Dionne has a great column in WaPo today:

Is President Bush the leader of our government, or is he just a right-wing talk-show host?

The question comes to mind after Bush’s news conference this week in which he sounded like someone who has no control over the government he is in charge of. His words were those of a pundit inveighing against the evils of bureaucrats.

“Obviously,” said the critic in chief, “there are some times when government bureaucracies haven’t responded the way we wanted them to, and like citizens, you know, I don’t like that at all.” Yes, and if you can’t do something about it, who can?

After more than five years in office, President Bush seems weirdly oblivious to what his job actually is. I wrote about this recently here. We see time and time again — from the morning of 9/11 to Katrina to his I’ll leave it to future Presidents to clean up my mess in Iraq statement — that in times of crisis, when we need someone to take charge, set priorities, rattle cages, and otherwise make stuff happen, our President retreats into passivity. He reminds me of a rich kid who spills milk and waits for the maid to clean it up. It doesn’t even occur to him he could do the job himself.

And then there’s the incompetence factor. Shortly after Katrina I wrote a series called “Adventures in Problem Solving” — Part I, Part II, Part III, and Part IV. This series could have been called “A Chronicle of Staggering Ineptitude.” It documents that even when Bush gets a notion there’s something he ought to be doing — in this case, problem solve — he doesn’t know how to do it. And his administrative “team,” such as it is, isn’t any better at either problem solving or carrying out solutions.

I’ve ranted many times that in his entire sorry-ass life Dear Leader has not been much called upon to actually accomplish anything of a tangible nature, like build a bridge or put a product on the shelves. But if you look at the people around him you might notice they’re mostly “idea” people who have spent their careers flitting among government, academia, and right-wing think tanks. Even Dick Cheney, as CEO of Halliburton, had an unusually “hands off” role in running the company —

There was nothing improper about the unusually limited role expected of Cheney as head of a Fortune 500 company. He was recruited as CEO not long after a fortuitous five-day fishing trip in B.C. with several CEOs, including his predecessor at Halliburton, who was impressed by Cheney’s fireside tales of how he had reorganized the Pentagon. That revamp, which called for a 25 per cent reduction in personnel and the closing of 800 bases, laid the foundation for the allegations Cheney and George Bush would make in the 2000 campaign of how the Clinton-Gore team had run down America’s fighting strength.

At Halliburton, Cheney would be paid a total of $45 million in salary, bonuses, stock-option profits and stock-sale proceeds for his services. The principal function of this novice CEO was to be a high-priced lobbyist, using his contacts at the Pentagon and with kings, emirs and oil ministers to drum up business. The actual running of the $9 billion enterprise was delegated to Cheney’s future successor, David Lesar, who later explained, “On major types of things, I would tell Cheney what the decisions were.” [David Olive, “Dick Cheney’s Brilliant Career,” The Toronto Star, July 26, 2002]

Now, there’s nothing wrong with being an “idea” person, but at some point you need to work with “do” persons to get things done. But Bushies don’t seem to grasp the “do” thing. In fact, it seems to me that Bushies, and righties as a whole, lack appreciation for processes, procedures, and institutional structures — those evil bureaucracies — as well as professionalism in general. As someone who’s done some big-project managing I look at FEMA in the aftermath of Katrina and see a total institutional breakdown. Things like established procedures and institutional memory are what allow big, far-flung teams of people to work together in a time- and cost-efficient manner to accomplish tangible goals. Without them, even hard-working and intelligent people will blunder.

In the case of FEMA, it won’t do to have people trying to figure out what their job responsibilities are and who to go to for what after the disaster. But I’m sure that’s what was happening after Katrina.

Speaking of FEMA — this takes us to what we might call the priority problem. From an editorial in today’s New York Times —

Sometimes it’s hard to understand just how Michael Chertoff understands his title, secretary of homeland security. Take this week, when Mr. Chertoff appeared before executives of the chemical industry, whose plants remain one of the nation’s greatest vulnerabilities more than four years after 9/11. Mr. Chertoff did not chastise the industry for failing to protect chemical plants adequately. He proposed weak federal safety standards. He did not even fully embrace a recently introduced bipartisan Senate bill that would create meaningful standards.

Instead, Mr. Chertoff seemed perfectly content to defer on key security matters to an industry that contributes heavily to Republican campaigns but has proved to be dangerously unwilling to take public safety seriously.

I bet you can see how this ties back to the turning the United States into a third-world shithole agenda.

It should be obvious to anyone concerned about public safety that the nation needs strong, mandatory government rules to reduce these dangers [of a terrorist attack on a chemical plant]. Yet in his speech, Mr. Chertoff favored leaving crucial security decisions up to the chemical companies — a formula that puts too much weight on not inconveniencing industry, and too little on protecting the public.

Mr. Chertoff said requiring the industry to use safer chemicals would be “mission creep” — even though that would be precisely the kind of precautionary step that should be a core part of his department’s mission. Mr. Chertoff also spoke approvingly of “pre-emption,” the notion that if federal chemical plant safety rules are adopted, they should be written in a way that will invalidate tougher rules adopted at the state level. Pre-emption is high on the industry’s wish list, but it is not in the public interest.

You see the priority — handing out candy to Republican campaign contributers is more important than public safety. In such matters the Bushies are not incompetent at all. They’re quite good at it, in fact. We, the People might think Michael Chertoff ought to be directing his attention elsewhere, but from a Bushie perspective he’s doing just fine.

But I’ve been rattling on about the White House and ignoring Republicans in Congress. Part of the reasons Republicans in Congress are brazenly incompetent is, of course, that they’re working under the direction of the White House. But not everything is Bush’s fault, as Paul Krugman noted in a recent column (I’ll look for a public link). The out-of-control spending is more Congress’s fault; they’re the ones who write up the appropriations bills. And it’s stunning that the same people who complained about “big government” spending for so long became the biggest, most pork-filled spenders in history when it became their turn to write the bills.

The most obvious reason for this phenomenon is that, as most pork is designed to please campaign contributors and the home folks, we must assume Congress critters place getting re-elected over doing the right thing. Democrats are guilty of this, too. And with a no-veto president in the White House, there is no one to constrain Congress from its own worst impulses.

But it strikes me that the Republicans who for years complained about their minority status are acting like unsupervised children now that they’re in charge. With no adults around to tell them to eat their vegetables, do their homework, and go to bed on time, congressional Republicans have been living on pizza and twinkies and staying up all night to watch zombie movies. Let’s hope that after the midterm elections Mom and Dad will come back and make them behave.