As in the 18th century, America's problem is a usurping king called George.
IMAGINE A country with a different kind of monarch from the one we British are used to. Forget the nation-binding human monarch whom the Archbishop of Canterbury Rowan Williams praised so deftly this week. Imagine instead a monarch who, like many of Elizabeth II's ancestors, routinely reserved the right to override laws passed by the legislature, or who repeatedly asserted that the laws mean something they do not say. Imagine, in fact, King George of America.
On April 30, Boston Globe journalist Charlie Savage wrote an article whose contents become more astonishing the more one reads them. Over the past five years, Mr. Savage reported, President George W. Bush has quietly claimed the authority to disobey more than 750 laws that have been enacted by the United States Congress since he took office. At the heart of Mr. Bush's strategy is the claim that the President has the power to set aside any statute that conflicts with his own interpretation of the Constitution.
Remarkably, this systematic reach for power has occurred not in secret but in public. Go to the White House website and the evidence is there in black and white. It takes the form of dozens of documents in which Mr. Bush asserts that his power as the nation's commander-in-chief entitles him to overrule or ignore bills sent to him by Congress for his signature. Behind this claim is a doctrine of the "unitary executive," which argues that the President's oath of office endows him with an independent authority to decide what a law means.
Periodically, Congressional leaders come down from Capitol Hill to applaud as the President, seated at his desk, signs a bill that becomes the law of the land. They are corny occasions. But they are a photo-op reminder that American lawmaking involves compromises that reflect a balance between the legislature and the presidency. The signing ceremony symbolises that the balance has been upheld and renewed.
After the legislators leave, however, Mr. Bush puts his signature to another document. Known as a signing statement, this document is a presidential pronouncement setting out the terms in which he intends to interpret the new law. These signing statements often conflict with the new statutes. In some cases they even contradict their clear meaning. Increasing numbers of scholars and critics now believe they amount to a systematic power grab within a system that rests on checks and balances of which generations of Americans have been rightly proud and of which others are justly envious.
The Bush administration has often been charged with unilateralism in its conduct of foreign affairs. But a similar disregard for the rule of law underlies this domestic strategy. Article 1, Section 1 of the U.S. Constitution states: "All legislative powers herein granted shall be vested in a Congress of the United States." Section 7 says that if the President refuses to sign a law, the Congress can override him. But Mr. Bush has never vetoed a bill. Instead he signs bills into law and then unilaterally redefines them his way.
The contrast between the rhetoric of the public ceremony and the self-authorisation in the later signing statements is large. Take, for example, the renewal of the USA Patriot Act on March 9. During the signing ceremony Mr. Bush stressed that the law had been a bipartisan effort involving Congress and the White House. In the subsequent signing statement, however, he states that he does not feel bound to report to Congress (as the act requires) and would "withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the executive, or the performance of the executive's constitutional duties."
Or take the contrast after Mr. Bush signed an overwhelmingly supported Congressional bill last year outlawing the torture of detainees. On the face of it the new law was explicit, strengthening what Mr. Bush described as "values we hold dear" and extending a domestic ban on torture to cover U.S. actions around the world. But the signing statement on December 30 carefully undermined that claim. It asserted that "the executive branch shall construe [the law] in a manner consistent with the constitutional authority of the president ... as commander in chief," adding that this approach would "assist in achieving the shared objective of the Congress and the president ... of protecting the American people from further terrorist attacks." In other words, circumstances might arise in which torture might still be authorised.
The Bush White House did not invent the presidential signing statement; it goes back to the 19th century. But the frequency and ambition of Mr. Bush's signing statements go far beyond his predecessors. Whereas earlier presidents issued signing statements of a highly specific nature, those of Mr. Bush are repeatedly broad and unspecific. Above all, they make claims to enhanced executive power that impinge on profound issues of liberty such as torture or wiretapping.
Too late in the day for comfort, Mr. Bush's approach is coming under greater scrutiny. In February the bipartisan Constitution Project warned of "the risk of permanent and unchecked presidential power." Last week, the American Bar Association announced an independent inquiry into the practice. A powerful article in the New York Review of Books by veteran writer Elizabeth Drew has also given the subject higher saliency.
To their credit, even some Bush supporters are alarmed. If Bill Clinton had done what Mr. Bush is doing, Republican Senator Chuck Hagel has pointed out, Congress would be up in arms. If Mr. Bush were to bequeath the powers he claims to Hillary Clinton, the Right would soon go berserk with indignation at the threat to American values. Which is why the most pertinent comment so far on the President's strategy has come from the anti-tax conservative Grover Norquist.
He told Ms. Drew: "If you interpret the Constitution's saying that the President is commander-in-chief to mean that the President can do anything he wants and can ignore the laws, you don't have a Constitution: you have a king."
It is not anti-American to warn about what Mr. Bush is doing. On the contrary, it is profoundly pro-American. In 1776, Americans issued their declaration of independence. They demanded a new form of government in place of the "repeated injuries and usurpations" to which they had been subjected. In the long list of grievances that followed, the first was that King George had "refused his assent to laws, the most wholesome and necessary for the public good."
That suddenly has a contemporary ring. Now, as then, America's problem is a usurping king called George.
Guardian Newspapers Limited 2006