Originally posted by Keyhole
If Senator Whitehouse has interpreted these "secret opinions" from the OLC right, Bush and co. are surely overstepping the boundaries for the
Executive Branch that were set in place by the Constitution.
With all due respect to the good Senator, I'm somewhat skeptical of his claims. I recognize that a certain amount of traditional puffery is expected
of speeches delivered in the Senate, but I think he is misrepresenting what he claims the Bush administration is doing as a political gambit.
There are also some significant differences between what he's saying and what you're saying, particularly with respect to the nature and role of the
Department of Justice, though there are gross conceptual errors in the case of both sources.
Before continuing, I would like to point out that I think there is plenty
to be concerned about when it comes to the Bush administration,
ranging from simple indiscretions to deliberate violations of law, but that is also why I think it is important not to muddy the waters with baseless
Also, I'm not a lawyer, so these are just my own opinions which may be wrong in various ways. Meanwhile, Senator Whitehouse has reminded us he is a
lawyer and a former U.S. Attorney, legal counsel to Rhode Island’s Governor, and State Attorney General.
So why do I feel qualified to criticize his claims?
Constitutional law is something I have a great deal of interest in, and is a subject I've studied in various ways for well over two decades. Nothing
anyone says, no matter what their credentials may be, can change the text of the Constitution, which is clearly written and easy to understand (at
least, when people bother to actually read it).
The fact that someone as distinguished as Senator Whitehouse is making claims and insinuations that are directly at odds with my own understanding of
constitutional law is certainly grounds for examining my own grasp of the subject, but does not necessarily mean I'm the one who's wrong -- and of
course I very much invite corrections where needed.
That said, let's go point by point:
Originally posted by Keyhole
(1.) Bush thinks he does not have to abide by previous Executive Orders.
This is the easiest to debunk, because executive orders
are issued by the
President as a means of exercising his executive power.
As the name implies, executive orders are not issued by Congress or the Supreme Court. Because they are issued by
the President, and not
the President, they are by nature not binding upon him.
That doesn't mean a President is free to make laws, but he is very much free to run the executive
as he sees fit, provided he does so in accordance with the law.
The implication that the President is somehow bound or limited by his own previous decisions or by the decisions of previous presidents has no
constitutional foundation whatsoever.
In other words, President Bush does not have to do what Presidents Washington, Lincoln, Roosevelt, Reagan or Clinton thought the President should do,
or even what he thought he should do yesterday.
That power is his alone, and he is free to change his mind whenever he wants -- again, provided he does so in accordance with the law (i.e. "take
Care that the Laws be faithfully executed").
Senator Whitehouse's complaints about Executive Order 12333 with respect to the Protect America Act are somewhat ambiguous. Congress passed the act
and the President signed it. That's how federal laws are made.
If he doesn't like the act's provisions regarding surveillance of U.S. citizens overseas, he as a Senator can push for an amendment, as he is in
fact doing with this speech regarding the Protect America Act.
For anyone to rely on or cite an executive order as a substitute for a federal law would actually be unconstitutional, as the Supreme Court ruled in
And indeed, after implying that executive orders are somehow binding on the Presedent, the Senator then goes on to say: "So unless Congress acts,
here is what legally prevents this President from wiretapping Americans traveling abroad at will: nothing. Nothing."
Senator Whitehouse first implies that executive orders are somehow binding on the President and that the Bush administration is wrong to think
otherwise, then in almost the same breath openly acknowledges they are not.
What does he actually believe is true?
Originally posted by Keyhole
(2) Bush thinks the President was given the power to decide what powers Article II gives to the President.The Department of Justice is suppose
to determine what the Constitution says, they are supposed to determine the powers that Article II in the Constitution are given to the President.
This one is somewhat more vague from a constitutional perspective, but the assertions you've added regarding the role of the Department of Justice
are flat out self-contradictory.
Because the Department of Justice
is part of the executive branch, and
thus falls under the authority of the President. The head of the DOJ, the Attorney
, is appointed by, serves at the pleasure of and reports directly to the President.
So to say that the President has no authority to determine what powers he has, but rather a department that works for him does
makes no sense.
The DOJ's authority derives from presidential authority, not the other way around.
As for the President being able to decide what powers he has under Article II, that's somewhat more debatable and subject to semantic subterfuge, but
in the most practical sense and except as otherwise prescribed by law, it's true.
The Constitution grants the President "The executive Power" with very few explicit limitations, except as enumerated therein, and that "he shall
take Care that the Laws be faithfully executed".
Congress does have oversight and the Supreme Court can make rulings, as explained further below, but the Senator's descriptions of his own exercise
of oversight authority as a member of the Senate Select Committee on Intelligence and recent Supreme Court rulings indicate that both are functioning
Ironically enough -- it is indeed one of the roles of the Department of Justice to represent and advise the President on matters of law.
But they don't tell the President what to do. He's their
boss (or "Decider", if you prefer).
Originally posted by Keyhole
(3) Bush believes that the President can interpret the law. Now this one is just wrong! The Department of Justice is the branch of the
government that is supposed to interpret the law. They are the ones to decide what is legal and what isn't, NOT THE PRESIDENT!
As mentioned above, the assertion that the President is subordinate to the Department of Justice grossly misrepresents its role (but that is again
something you've apparently added and did not originate from the Senator).
This is also a case where hand-waving and innuendo cloud the facts.
Senator Whitehouse said: "The Department of Justice is bound by the President’s legal determinations."
He repeated it in a manner that implies it shouldn't be so, but the fact is it's true. The DOJ reports to and advises the President, not the other
way around. Just ask them.
In this case the Senator's implications seem calculated to either misrepresent the role of the DOJ in advising the President or to blur the
distinction between the President's powers and the powers of the Supreme Court.
It is quite true that as the vested body of judicial power one of the roles of the Supreme Court is to interpret the laws, but with regard to the
President, it does so in "Controversies to which the United States shall be a Party" -- in other words, when a case is brought before it. It is also
true that Supreme Court decisions are binding upon the President and everyone else, for that matter.
That doesn't mean the President needs to consult the Supreme Court every time he needs to make a decision (he has the Attorney General and other
attorneys for that), but rather that the Supreme Court (or a federal court) may choose to issue a ruling when a dispute is brought to trial.
It also most certainly doesn't prohibit the President from running the DOJ however he sees fit -- but again as always under the constraints provided
by federal law and the checks and balances maintained under the Constitution.
While the President can rely on and would generally be wise to heed the advice of the Attorney General, he is by no means required to do so.
I decided to post this rather lengthy rebuttal because I detest seeing constitutional matters misrepresented, regardless of who may do so. Every time
false statements are made about the Constitution, all Americans suffer the consequences.
Such claims are all the more grievous when uttered by a Senator on the floor of the U.S. Senate.
In this case, I suspect there's more political bluster than substance to Senator Whitehouse's accusations. In turn, these accusations have
apparently been inflated by others
into charges that don't even make
sense from a constitutional standpoint.
While I suppose the rule of "sausage and law" applies, I think the interests of the people of the United States would be better served by honest
criticism founded in law and fact than by misleading and overblown accusations proffered for political expediency.