Des lois, des presidents, de la constitution... aux USA.

eff Jacoby
The scope of federal power








By Jeff Jacoby, Globe Columnist | October 24, 2007



"DO WE REALLY want presidents who sign laws that they think are unconstitutional?"


It was a debate over the Bush administration's conduct in the war on
terrorism. The discussion had turned to the president's heavy reliance
on "signing statements"
- written interpretations by President Bush of bills he has signed into
law, frequently including the claim that one or more sections of the
new law are unconstitutional and can therefore be ignored. One of the
speakers, a critic of the administration's aggressive efforts since
Sept. 11, 2001, to expand presidential power, was scornful.
"This
notion that presidents in our system of government don't have to carry
out laws authorized by Congress is absolutely preposterous," the
speaker said. "If that were the case - if Congress's laws are merely
advisory - why would you need a veto?" A president who disapproves of a
bill should say so in a veto message - that's why the Constitution
gives him veto power. Bush's hundreds of signing statements are an
"open power grab" that Americans should find intolerable. "We ought to
be adamantly opposed to any claim that the president doesn't have to
abide by laws that Congress has passed and he has signed."
That
may sound like Senator Hillary Clinton, who denounces the Bush
administration's "concerted effort . . . to create a more powerful
executive at the expense of both branches of government and of the
American people" and promises to sharply roll back the use of signing statements if she becomes president.
But the speaker wasn't Clinton, nor any other liberal or Democrat. It was former Georgia congressman Bob Barr,
a staunch conservative best known for his leading role in the 1999
impeachment of Bill Clinton. An outspoken defender of privacy rights
and other civil liberties, Barr has long decried what he calls the
"frightening erosion" of constitutional protections under Bush. At a
forum hosted by the Boston chapter of the Federalist Society, he was debating another staunch conservative: John Yoo,
a law professor at the University of California at Berkeley, and a
former Justice Department official whose thinking strongly influenced
the administration's claims of presidential power after Sept. 11.
In
a vivid illustration of the clash of ideas roiling the right these
days, the two had come to tangle over the Terrorist Surveillance
Program, the National Security Agency's warrantless interception of
phone calls and e-mails into and out of the United States as part of
the effort to defeat Al-Qaeda. Yoo acknowledged that the eavesdropping
seems inconsistent with the federal statute that ordinarily requires a warrant from the Foreign Intelligence Surveillance Court before such domestic spying can occur.But
these aren't ordinary times, Yoo emphasized. The purpose of the
Terrorist Surveillance Program is "to protect national security in
wartime - and historically warrants haven't been required to conduct
electronic surveillance of the enemy during wartime." A president is
not obliged to unquestioningly obey every act of Congress - especially
not if one impinges on his constitutional authority as
commander-in-chief.
Covert intelligence falls well within that
authority, he argued, and presidents have long ordered electronic
surveillance without regard to congressional or judicial strictures.
Long before Pearl Harbor, for example, President Franklin Roosevelt
"ordered the electronic surveillance of every communication in the
country, regardless of whether it was international or not, so that the
FBI could try to find Nazi saboteurs." FDR's order went far beyond
anything Bush has done, and did so "even though a Supreme Court
decision and a federal statute on the books at the time prohibited
electronic surveillance of any kind without a judicial warrant."
Barr
was having none of it. Yoo's argument, he said, amounts to a claim that
the three branches of the federal government are equal, but one is more
equal than others - and that way lies the loss of freedom. "Do we want
to live in a society where we know that any time we pick up the phone
and call somebody overseas . . . the government may be listening in?
That's the fundamental problem - what kind of society do we want to
live in?"
The bottom line, of course, is that there is no bottom
line. Disputes over the proper scope of federal power, and the
deference to which each branch is entitled, and the balance between
national security and civil liberty, have been a feature of American
life from the start. The struggle for political equilibrium is built
into our democratic architecture.The debates began long before
Bush arrived; they'll continue after he leaves. We should welcome them
as signs not just of factiousness, but of strength: Americans argue
about fundamental freedoms because Americans are fundamentally free.
Jeff Jacoby's e-mail address is jacoby@globe.com.© Copyright 2007 Globe Newspaper Company.