May 22, 2006

The Bush administration, without court authorization, collects our telephone records and eavesdrops on calls involving U.S. residents to and from foreigners. It refuses to rule out wiretapping of fully domestic calls. Meanwhile, the administration is building military bases in Iraq and throughout the Persian Gulf. And now the president is about to formally militarize the southern border, the better to keep out Mexicans seeking economic opportunity.

To underscore grounds for concern, the administration has pronounced a theory of presidential power that should alarm anyone who wants government power limited. Under the Unitary Executive doctrine of the Bush Justice Department and many conservative legal theorists, the executive branch has enough implied and inherent powers during wartime to negate the checks and balances ordinarily provided by Congress and the courts. Considering that the Bush administration's "war on terror" is vague enough to last indefinitely and assumes a global battlefield, the Unitary Executive doctrine is a blueprint for despotism that Napoleon would have envied.

As Gene Healy and Timothy Lynch write in a new Cato Institute study, "Power Surge: The Constitutional Record of George W. Bush," "The Bush administration's view of executive power ... amounts to the view that, in time of war, the president is the law, and no treaty, no statute, no coordinate branch of the U.S. government can stand in the president's way when, by his lights, he is acting to preserve national security."

Thus the president can order the "interrogation" of prisoners in any manner, regardless of what laws and treaties Congress has approved. This is declared in the infamous "torture memos" generated by Justice and Defense Department officials a few years ago. In addition, the president can seize anyone, including American citizens, on American soil, declare him an enemy combatant, and hold him indefinitely without charge or judicial review.

As if this weren't enough, the president reserves the right to ignore Congress when it passes any other kind of legislation, despite his constitutional obligation "to take Care that the Laws be faithfully executed." According to the Boston Globe, on more than 750 occasions, far more than all previous presidents combined, President Bush has attached a "signing statement" to legislation he has signed, declaring that he is not bound by provisions he regards as unconstitutional. So instead of vetoing bills he thinks are constitutionally flawed and giving Congress an opportunity to override his action, Bush asserts the right to pretend the laws were not enacted. As Bruce Fein, a conservative constitutional scholar with integrity, said, "This is an attempt by the president to have the final word on his own constitutional powers, which eliminates the checks and balances that keep the country a democracy. There is no way for an independent judiciary to check his assertions of power, and Congress isn't doing it, either. So this is moving us toward an unlimited executive power."

Moreover, those who argue that the president has complete discretion in the conduct of foreign policy and war make short shrift of Congress's explicit power to declare war. They also ignore other congressional powers enumerated in the Constitution that relate to the military. So although the Constitution designates the president commander in chief, it also gives Congress the power to "make Rules concerning Captures on Land and Water" and "to make Rules for the Government and Regulation of the land and naval Forces."

Presidential power is hardly unlimited.

Yet, admittedly, the case is not a slam-dunk for limits on presidential power. This debate can and will go on indefinitely -- which only shows that perhaps the late-eighteenth-century anti-Federalist skeptics about the Constitution, who warned of the presidency's neo-monarchical powers, were on to something.

Scott McPherson is a policy advisor at The Future of Freedom Foundation.

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Samuel Bostaph is head of the economics department at the University of Dallas and an academic advisor to The Future of Freedom Foundation

Anthony Gregory is a policy advisor at The Future of Freedom Foundation

James Bovard is the author of Attention Deficit Democracy (Palgrave, January 2006) and Terrorism & Tyranny (Palgrave, 2003), and is policy advisor at The Future of Freedom Foundation

Benedict LaRosa is a historian and writer and serves as a policy advisor to The Future of Freedom Foundation

Bart Frazier is program director at The Future of Freedom Foundation.

Sheldon Richman is senior fellow at The Future of Freedom Foundation in Fairfax, Va., author of Tethered Citizens: Time to Repeal the Welfare State, and editor of The Freeman magazine. Visit his blog “Free Association."

Mr. Hornberger is founder and president of The Future of Freedom Foundation. Send him email.

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