REPUBLICANS are fond of labeling judges who issue sweeping decisions contrary to GOP positions as activist judges. They deride judges whose interpretations of the law are either too broad or too narrow depending on partisan philosophy and claim they exceed their authority by legislating from the bench. Usually members of the judiciary who commit such sins are bleeding-heart liberals, but not always.
Still, the notion of the judiciary assuming power that belongs to the legislative branch is so onerous to Republicans that attacks on activist judges are practically a party staple during any campaign. But the fact that the executive branch of government has been actively interpreting, revising, or disregarding legislation passed by Congress and signed into law has escaped similar wrath. The party faithful may have qualms about the enormous, ongoing expansion of presidential power under the Bush Administration, but few are willing to challenge the White House on the growing constitutional crisis.
One who is willing to take on the establishment is Pennsylvania Sen. Arlen Specter. The Republican chairman of the Senate Judiciary Committee opened hearings this week on President Bush s prolific use of bill signing statements, in which he reserves his right to uphold or ignore parts or all of legislation approved by lawmakers often photographed at the official signing ceremonies with Mr. Bush.
Only after the show is over and everyone has gone home does the President quietly file another document. It s called a signing statement that lays out his interpretation of the new law to Congress, the courts, and the public. The signing statements are indeed a long White House tradition that dates back to Andrew Jackson and are penned mostly to help execute the law.
But Mr. Bush has gone far beyond the customary purview of his predecessors, topping them all in appending such statements to laws he signs. More than one of every 10 bills he has signed an unprecedented 750 have been accompanied by statements invoking his right to interpret congressional laws on everything from whistleblower protections to how Congress oversees the Patriot Act. And a pattern has emerged with laws requiring congressional oversight.
That stipulation practically guarantees a presidential signing statement mitigating any report to Congress which would necessarily limit executive power over the legislative branch. In the sixth year of his presidency, Mr. Bush has yet to issue a single veto. And now we know why.
Rather than give Congress the opportunity to override his judgments with a two-thirds majority in each house, he simply dispenses with hundreds of signing statements nullifying whatever sections of the bill he finds objectionable. The dictator mindset flourishes at 1600 Pennsylvania Ave. This administration does not feel bound to enforce many news laws passed by Congress.
By insisting that such unilateral tactics help him uphold the Constitution and defend the nation s security, argues Senator Specter, the President can do an end-run around the veto process and get away with it. For five years the Bush Administration has exploited 9/11 whenever and wherever to achieve its agenda. Part of that is to reduce Congress to a cowering enclave of subordinates afraid to appear unpatriotic or unsupportive of the President in uncertain times.
Washington lawmakers who have made a habit of acquiescing to the White House rule of law allow themselves to become increasingly irrelevant in the functioning of any federal code of laws. By issuing hundreds of signing statements President Bush makes a mockery of the legislative branch, playing accommodating lawmakers for chumps regardless of party affiliation.
Republican Sen. John McCain of Arizona held long, intense negotiations with the White House and congressional allies before finally winning the President s signature on a bill banning the torture of detainees.
Before the ink was dry the President had asserted his right to ignore it. All it took was appending yet another statement to the bill duly recorded in the federal register that declared official reservations like the executive branch shall construe section so-and-so in a manner consistent with the constitutional authority of the President.
So without being specific, the President can construe a bill to mean whatever he wants it to, even if his interpretation is completely opposite from legislative intent as in the McCain amendment. Why presidential objections to that measure and others couldn t have been openly raised and resolved during the negotiations is vexing. After the President reserved the right to make exceptions to a ban on torture that had passed the Senate by a wide margin, some Senate Republicans like Mr. Specter decided enough was enough.
Still, as the GOP heads into fall elections, the resolve of other Republicans to deride or even question an activist President bent on legislating from the Oval Office is weak.
There s less here than meets the eye, concluded Sen. John Cornyn, a Texas Republican. But activist judges exceeding their authority by attempting to legislate from the bench are always fair game.