Bush versus Marbury v. Madison

Who ultimately gets to decide what's constitutional and what's not?

The Great Decider (known more formally as President George W. Bush), who else?

What, you were thinking that was a job for, maybe, the U.S. Supreme Court? That's pre-9/11 thinking.

No, according to The Boston Globe's excellent Charlie Savage, Bush has taken it upon himself to decide which laws are worth enforcing and which he can skip.

Cenk Uygur blogs on this elsewhere on this site, but the story is so appalling and so important that it really cannot be mentioned often enough.

From the Globe:

President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution. ... Legal scholars say the scope and aggression of Bush's assertions that he can bypass laws represent a concerted effort to expand his power at the expense of Congress, upsetting the balance between the branches of government. The Constitution is clear in assigning to Congress the power to write the laws and to the president a duty ''to take care that the laws be faithfully executed." Bush, however, has repeatedly declared that he does not need to ''execute" a law he believes is unconstitutional.

It's a long, long story, but read it through to the end. If you notice presidential bleeding today, it's not the stigmata, it's wounds from getting nailed to the wall. Savage has chapter and verse on the constitutionality of these actions as well as examples of which laws Bush does not think need to be enforced.

Far more than any predecessor, Bush has been aggressive about declaring his right to ignore vast swaths of laws -- many of which he says infringe on power he believes the Constitution assigns to him alone as the head of the executive branch or the commander in chief of the military.

Many legal scholars say they believe that Bush's theory about his own powers goes too far and that he is seizing for himself some of the law-making role of Congress and the Constitution-interpreting role of the courts.

This reflects again a fascinating tension -- cognitive dissonance? -- for conservatives who loudly decry jurists who allegedly find fantastical inherent powers into the Constitution ... and yet are quite happy for the president to find all kinds of inherent powers of his own.

Bush has also challenged statutes in which Congress gave certain executive branch officials the power to act independently of the president. The Supreme Court has repeatedly endorsed the power of Congress to make such arrangements. For example, the court has upheld laws creating special prosecutors free of Justice Department oversight and insulating the board of the Federal Trade Commission from political interference.

Nonetheless, Bush has said in his signing statements that the Constitution lets him control any executive official, no matter what a statute passed by Congress might say.

The question of who gets final say on constitutional issues has been settled law for, oh, 200+ years. But it's been resettled in the mind of the Great Decider.

[NYU Law professor David] Golove said that to the extent Bush is interpreting the Constitution in defiance of the Supreme Court's precedents, he threatens to ''overturn the existing structures of constitutional law."

A president who ignores the court, backed by a Congress that is unwilling to challenge him, Golove said, can make the Constitution simply ''disappear."

But wait, the Bush apologists will argue that he's not doing anything that his predecessors have not done before.

Since the early 19th century, American presidents have occasionally signed a large bill while declaring that they would not enforce a specific provision they believed was unconstitutional. On rare occasions, historians say, presidents also issued signing statements interpreting a law and explaining any concerns about it.

But it was not until the mid-1980s, midway through the tenure of President Reagan, that it became common for the president to issue signing statements. The change came about after then-Attorney General Edwin Meese decided that signing statements could be used to increase the power of the president.

...

Still, Reagan, George H.W. Bush, and Clinton used the presidential veto instead of the signing statement if they had a serious problem with a bill, giving Congress a chance to override their decisions.

But the current President Bush has abandoned the veto entirely, as well as any semblance of ... political caution ... In just five years, Bush has challenged more than 750 new laws, by far a record for any president, while becoming the first president since Thomas Jefferson to stay so long in office without issuing a veto.

''What we haven't seen until this administration is the sheer number of objections that are being raised on every bill passed through the White House," said Kelley, who has studied presidential signing statements through history. ''That is what is staggering. The numbers are well out of the norm from any previous administration."

Like I said, read the whole thing. And get angry.

PS: One more thing on the "everybody does it" defense. To the extent that previous presidents have decided they could ignore the laws of the country, they were wrong. To the extent that he has raised this to a high art, Bush is -- to coin a Bushism -- even wronger.