CNN's political website on Sept. 24 listed 20 major issues in the 2008 presidential campaign: abortion, Afghanistan, Cuba, economic stimulus, education, energy, environment, free trade, guns, health care, homeland security, housing, immigration, Iran, Iraq, Israel, lesbian-gay issues, Social Security, stem-cell research, and taxes.
But someone in the press and media, including in the much-heralded TV “debates,” should ask McCain and Obama three questions on the vital issue of executive powers.
1. As president, will you renew the Bush administration's coercive practice of having the Justice Department issue secret legal opinions affecting presidential policy?
John Yoo in Justice's Office of Legal Counsel, which decides the legality of proposed presidential actions, secretly wrote and provided legal opinions — binding throughout the executive branch — allowing Bush to aggressively move against anyone the White House deemed connected to terrorism. Two of Yoo's major opinions involved (a) the terrorist surveillance program, and (b) approving extreme methods of torture, including waterboarding.
Vice President Dick Cheney and his legal henchman David Addington controlled this Legal Counsel process, according to Jack Goldsmith, a Republican lawyer who later replaced Yoo. Goldsmith challenged both the secretive methods and what he determined were Yoo's “flawed” opinions.
2. Will you, as president, continue the expanding administration activity of filing signing statements challenging Congress when giving your signature to new laws?
A signing statement — a legal order the president enters into the Federal Register when signing a bill — asserts how the administration will implement the new law, or not. With the signing statement, the president basically challenges Congress' authority in passing the law. This challenge, practically speaking, indicates the executive branch will be less than diligent in following the will of Congress, even ignoring the law.
According to Charlie Savage — a Boston Globe reporter who won a Pulitzer Prize for his investigations of the Bush presidency, including his signing statements — presidents historically have used such statements, but rarely. The activity expanded under Ronald Reagan, swelled under Bill Clinton, then exploded under the current President Bush. Our 42 presidents from Washington through Clinton had challenged 600 laws. Bush alone, through the summer of 2007, had attacked over 1,100.
The American Bar Association in 2007 publicly urged Congress to adopt legislation creating judicial-review procedures for “presidential signing statements that claim authority or indicate intent to disregard or decline to enforce the law being signed.” The ABA called signing statements “contrary to the rule of law and our constitutional system of separation of powers.”
Sen. Arlen Specter (R-PA) has introduced legislation to quell the presidential authority of signing statements. If it were to pass, Congress would logically need to override a Bush presidential veto for it to become law.
The Washington Post reported in February that McCain said, if elected, he won't use signing statements. Obama said there may be circumstances that necessitate the statements. But candidates, and presidents, have been known to change their minds. So it would be good to hear their official views as we close in on Election Day.
3. As president, would you continue the Bush effort of masking the anti-terrorist effort as a “war” — the administration's attempt to indefinitely extend executive power as commander-in-chief?
John C. Danforth — a former Republican U.S. senator from Missouri and ambassador to the U.N. under Bush from 2004 to 2005 — recently asked in The New York Times, “Is it sensible to speak of a ‘war' on terror, or is this a struggle that should be principally handled by law enforcement?”
Statements coming from the White House constantly refer to the “war” on terror, a Bush effort at absolute power. His presidential history shows that, as long as he can cite a state of war allowing him to act as commander-in-chief, he can promote the “unitary executive theory.” This legal theory argues that, as commander-in-chief, he is not bound by Congress or by law, essentially meaning he's not even answerable to the U.S. Supreme Court.
If that's not an effort at absolute power, then what is?
Roger Armbrust is editor-in-chief of the new Our National Conversation book series published by Parkhurst Brothers Inc. Publishers of Little Rock.