LJWorld.com weblogs Lehrence, KS
Equal to, not greater than
So I felt I owed it to myself to offer President Bush the courtesy of watching his final State of the Union address last night. I figured it was probably one of the last, if not the last time, that any substantial portion of the country would pay any significant attention to him before he rides off into the sunset to be commissioner of Major League Baseball.A friend emailed me earlier in the day to say that she would not be able to watch as she has no TV and wasn't able to load the video properly on her computer. My projection of his speech consisting of a variation on the standard themes of "war, tax cuts, war, strong economy, tax cuts, war, "I have built a great legacy," tax cuts, tax cuts, Saddam had WMD even if we haven't found them yet" proved to be somewhat close, though not quite right, unfortunately.The one thing that did catch my attention was the President's reference to the extensive use of earmarks by Congress to fund their "pet projects."As everyone knows, earmarking appropriations bills, often with projects entirely unrelated to the purpose of the bill, has become standard operating procedure in Congress. Stories of committing $200 million to a "bridge to nowhere" in Alaska are common fodder for critics of the practice. I am no defender of the tactic myself, but I am not sure I can support what the President proposed last night either.The President proclaimed to Congress and the American public that he will instruct all federal agencies directed to dispense funds from a Congressional earmark within a spending bill to refuse to initiate payment if the earmark wasn't specifically voted on by Congress. Many earmarks are commonly added late in the legislative process, usually after the voting has finished for the bill. As I said, I am not really in favor of this process, but I think the President is trying to throw a curveball here.Many Presidents have attempted to secure what is referred to as a "line-item veto," giving them the ability to veto specific portions of legislation without having to kill the entire bill. Nearly every state has given their governors the ability to do just this, including in Kansas.At the same time, the United States Supreme Court ruled in 1998 that the Line Item Veto Act of 1996, which gave President Clinton the ability to veto portions of bills, was unconstitutional. Interestingly, the Supreme Court rendered this decision in a case brought by Rudy Guiliani, who had sued the Clinton Administration over his veto of certain provisions pertaining to health care in the city of New York (now President Bush just vetoes entire health care bills). Nevertheless, I don't think I'd like a Clinton-Guiliani rematch this year.By informing us that he will instruct federal agencies not to fund earmarks specifically approved by Congress, I believe that the President is essentially attempting to invoke his "unitary executive" theory of the Presidency and unilaterally grant himself a line-item veto. The President's definition of the unitary executive is defined as:
Our reading of the text is reinforced by analysis of the constitutional structure. First, it is clear that the Constitution secures all federal executive power in the President to ensure a unity in purpose and energy in action. "Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number." The Federalist No. 70, at 392 (Alexander Hamilton). The centralization of authority in the President alone is particularly crucial in matters of national defense, war, and foreign policy, where a unitary executive can evaluate threats, consider policy choices, and mobilize national resources with a speed and energy that is far superior to any other branch.This model of super-constitutional, if not unconstitutional practice is nothing new for the administration of President George W. Bush. The Boston Globe already won a Pulitzer Prize detailing the President's use of "signing statements" to amend legislation as he sees fit, regardless of the will, intent or actual language of the bill passed by Congress. The President has even acknowledged breaking the law with regard to warrantless wiretapping, which is to say nothing of the outright torture of prisoners of war. Even Vice President Cheney apparently devised his own "top secret" classification system and refuses to publish even a daily schedule or the list of people on his taxpayer financed staff.Regardless of whether or not any President should or should not have the authority of a line-item veto, this President has clearly demonstrated that he believes he is above the law. The Supreme Court struck down the 1996 Line Item Veto bill precisely to prevent a President from acting above the law.This will be a great test of the independence of the United States Congress. Our Representatives will either continue to function as a coequal branch of government or the Executive Branch will emerge as a superior branch of government. Congress must not let the President assert power over the law.