Debate on Hill over power of the president

What should Congress do if the president refuses to enforce a law – or some part of it he deems unconstitutional?

It's a question that has simmered in the GOP-controlled Congress over issues ranging from post-9/11 national security to the use of torture in the war on terror.

But it resurfaced on Capitol Hill this week, as lawmakers consider giving President Bush line-item veto authority and, behind the scenes, negotiate with the White House over Mr. Bush's claim that he has authority to conduct domestic wiretapping without a warrant, despite a 1978 law that says otherwise.

"The real issue here is whether the president can cherry-pick what he likes," said Sen. Arlen Specter (R) of Pennsylvania, chairman of the Senate Judiciary Committee, as he opened a hearing Tuesday on presidential signing statements.

Such statements – issued when presidents sign bills into law – are a long White House tradition. Bush has produced a record total – more than 750 of them – that lay out his interpretation of the new law to Congress, the courts, and the public.

"The president hasn't vetoed any bills, but basically he has done a personal veto. He has said which laws he will not follow and ... put himself above the law, even the same law he has signed," said Sen. Patrick Leahy of Vermont, the ranking Democrat on the Judiciary panel.

Not all Republicans are as enthused as chairman Specter and Senate Democrats over this line of questioning, especially as lawmakers head into fall elections that could change control of both houses of Congress.

"This is a fascinating topic, mainly something law students and lawyers can love," said Sen. John Cornyn (R) of Texas, a member of the Judiciary Committee, who notes that the practice of presidents issuing signing statements goes back to 1821.

"As a practical matter, I don't know what impact it has.... It promotes public discourse and discussion about what the roles of the legislative branch and the executive branch are," he added.

Testifying for the Bush administration, Michelle Boardman, deputy assistant attorney general in the Office of Legal Counsel at the US Department of Justice, said that signing statements serve a "legitimate and important function" and are not an abuse of power.

"Congress should not fear signing statements, but welcome the openness they provide," she said. "The president must execute the law faithfully, but the Constitution is the highest law of the land. If the Constitution and the law conflict, the president must choose," she said.

Also testifying before the committee, Nicholas Rosenkranz, a law professor at Georgetown University Law Center in Washington, called the "recent brouhaha" over presidential signing statements "largely unwarranted."

But for Chairman Specter, who helped the White House move new powers under the USA Patriot Act through the Senate, the issue comes down to basic respect for balance of powers – and for the Congress. After personally negotiating with the White House over issues such as the Patriot Act and the torture ban, he questioned why objections would not have been raised at that time.

"Wouldn't it be better as a matter [of] comity for the president to come to the Congress and say: I want these exceptions in the bill," rather than asserting them in a presidential signing statement, Specter asked.

When the question was not answered to his satisfaction, he called for answers in writing. ("My office in the Justice Department is flooded," Ms. Boardman said. "It will take a week.")

For Specter and some other Senate Republicans, what tipped the issue was the president's signing statement of the fiscal 2006 Defense authorization bill, which included a ban on torture that had passed the Senate by a wide margin. That statement claimed the right to make exceptions to that ban.

Pressing the issue, Sen. Edward Kennedy (D) of Massachusetts asked Boardman to provide a list of laws that President Bush has decided not to enforce.

"I cannot give you that list," Boardman said.

"No, then who can? Is there any way for the public to know the president has made a judgment that he is not going to enforce a law?" he asked.

It's an issue that Democrats in both the Senate and House are developing for fall elections. Last week. House Democrats introduced a resolution requiring the president to notify Congress if the president "makes a determination to ignore a duly enacted provision of law."

"For far too long, Congress has stood by and watched while President Bush has slowly expanded the unilateral powers of the presidency at the expense of the rest of the government and the people," said Senator Kennedy at Tuesday's hearing.

"This administration has issued signing statements at an astonishing rate to express the view that it does not have to comply with the laws that Congress has passed," added Sen. Russ Feingold (D) of Wisconsin, who has called for a censure of President Bush. "I believe that is dangerous to our system of government."

However arcane, the debate is "part of a much broader spectrum of issues that has to do with separation of powers," says Carl Tobias, a law professor at the University of Richmond in Virginia.

The American Civil Liberties Union welcomed the Senate Judiciary Committee's hearing as an opportunity to "highlight this administration's disregard for the law," said Caroline Fredrickson, director of the ACLU Washington Legislative office.