Bush power grab a serious constitutional challenge charges Senator Feinstein

President evades national law on military torture,
immigration policy and domestic surveillance,
former San Francisco mayor alleges

US Senator Dianne Feinstein (D-California) warns President Bush is intent
on a unitary executive form of government.
Photo(s) by Luke Thomas

By Pat Murphy and Luke Thomas

Copyright fogcityjournal.com 2006

May 31, 2006

President Bush evades constitutional limitation on presidential war powers and sidesteps constraining legislation he signs into law, US Senator Dianne Feinstein said in San Francisco Tuesday.

Both actions constitute "a serious constitutional challenge," Feinstein asserted.

Feinstein asserts the Bush Administration has engineered a policy to purposefully circumvent and manipulate the US Constitution framework of inherent checks and balances.

"This administration has, in my view, implemented a multi-pronged ongoing effort to concentrate power under the Executive, contrary to our constitutional framework," the former San Francisco mayor told members of the Queen's Bench Bar Association.

Bush appointee Kevin Ryan among those listening.
Ryan serves as United States Attorney for the Northern California District.

"Under the Bush Administration our country is experiencing a fundamental change in direction... to tip the balance of power between the branches of government."

By use of signing statements - presidential addenda to congressional bills signed into law - Bush creates presidential executive authority not to implement the very provisions he's signed into law, Feinstein charged.

"For anyone who is not familiar with signing statements I think it is important to understand exactly what they are," she continued.

"A signing statement is a written pronouncement about a statute and generally includes his legal interpretation of the law before him for signature or veto.

"Under President Bush these statements often include language which asserts that the president will not follow the statute based on his belief of its interference with his 'plenary authority.'

"I want to be clear about this point, in these statements President Bush is arguing that he will ignore parts, or whole, of the very statute that he has signed into law."

Bush has used signing statements to assert presidential right not to implement national law on military use of torture, immigration policies, and provisions of the Patriot Act, Feinstein stated..

By asserting such presidential right, Bush usurps the judiciary by claiming the presidency "has the authority to interpret - not execute - but interpret the law"

"Thereby, in a sense, acting as a judge as well as the executive."

The Bush Administration has issued more signing statements than all previous presidents combined.

President Monroe began the use of signing statements.

A total of 322 such statements were signed from the Monroe Administration through the Clinton Administration, with the Bush Administration issuing 435 signing statements in its first term of office.

The current presidency also exerts broad authority of a unitary executive, Feinstein maintained.

"The Bush Administration is also expanding its authority by implementing the concept of the unitary executive.

"This theory essentially states that all executive authority resides with the presidency, meaning that all executive power must be exercised only by those who report to him in the executive branch."

"The US Supreme Court directly engaged in the debate in the case Morrison v. Olson. In a 7-1 decision authored by Chief Justice Rehnquist, the court upheld the independent counsel statute and in doing so unequivocally and explicitly rejected the theory of the unitary executive.

"Yet despite the Morrision decision, the Bush Administration has aggressively resurrected the concept of the unitary executive and used it as justification for many of its actions.

"For example the consolidation of authority and power under the president calls into question the independence of almost 50 government agencies, including:

-- Federal Election Commission

-- Federal Reserve System

-- Office of Government Ethics

-- Office of the Special Council"

In addition, Bush has used the unitary executive concept to broaden presidential war powers, stated Feinstein.

"Throughout this administration President Bush has asserted that since the constitution dictates that the president shall be commander in chief, that he - as the unitary executive - has the exclusive authority to dictate the parameters of this power.

"While the language of Article II does make the president commander in chief, the Bush Administration's interpretation of what that means simply ignores the full text of the constitution.

"This language is clear. It is the congress that is invested with the power to define the parameters and regulate our armed forces, the acts of war, and its incidents."

Legal constraints on domestic surveillance are sidestepped by unitary executive privilege Bush claims, the Democratic senator said.

"In 1978 congress passed a law after six years of careful consideration called the Foreign Intelligence Surveillance Act (FISA).

Yet, the "Bush Administration has asserted that it has the authority to conduct domestic surveillance programs without receiving either a warrant, or other FISA court approval based on his Article II authority.

"In making this argument the administration has argued that congress has no power to check or limit the president from exercising his authority and 'inherent' power to wage war against our enemies..

That assertion usurps both congressional and judiciary authority, Feinstein challenged.

"If the Bush Administration is correct then this would constitute a fundamental shift in the balance of powers between the branches of government.

"It essentially means the president can do whatever he wants in the name of national security without having to answer to the legislature or the judiciary."

In a related matter, US Senator Barbara Boxer (D-California) yesterday announced she will introduce a resolution calling for withdrawal of American troops from Iraq within six months.

Barbara Boxer

Boxer sits on the Senate Foreign Relations Committee.

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