Return Of The Unitard

As the term of the 43rd President of the United States finally winds down, George W. Bush has managed yet another 'surprise!' for Congress: he's still playing around with his pet goat, the theory of the Unitary President. This time, however, he's gone beyond his favorite tactic, the signing statement. Now, he's taking the position that a bill he signed into law will not be enforced because it is a constitutional infringement on his executive powers. The NY Times has the story (albeit buried, according to the NYT website, on page A16 of the print edition):

The Bush administration has informed Congress that it is bypassing a law intended to forbid political interference with reports to lawmakers by the Department of Homeland Security.

The August 2007 law requires the agency’s chief privacy officer to report each year about Homeland Security activities that affect privacy, and requires that the reports be submitted directly to Congress “without any prior comment or amendment” by superiors at the department or the White House.

But newly disclosed documents show that the Justice Department issued a legal opinion last January questioning the basis for that restriction, and that Michael Chertoff, the homeland security secretary, later advised Congress that the administration would not “apply this provision strictly” because it infringed on the president’s powers. [Emphasis added]

The Chief Privacy Officer (CPO) is supposed to review Homeland Security's policies for spying on Americans to make certain that those policies do not violate privacy rights guaranteed under the Constitution. The CPO is also required to keep track of complaints filed by citizens for privacy violations. Then, he is supposed to report directly to Congress without any interference by any of his "bosses" at DHS and the White House. In other words, this officer is supposed to be beyond politics, much as each executive agency's Inspector General is supposed to be.

Well, the Bush Administration is not having any of this, and summoned a legal opinion from the Department of Justice for cover. [Note: that opinion is published here in pdf format.] DOJ happily complied and gave the White House the opinion it wanted: the law is an intrusion on executive authority.

The NYT article makes it clear that the administration notified some members of Congress of its position on the issue a while back, and nobody that I know of quacked back until the Times discovered the ploy and began asking questions. Sen. Arlen Specter (R. Penn.), happily responded:

Senator Arlen Specter of Pennsylvania, the ranking Republican on the Senate Judiciary Committee, called the move “unconstitutional.” He said Mr. Bush should have vetoed the bill if he did not like the provision, and compared the situation to Mr. Bush’s frequent use of signing statements to reserve a right to bypass newly enacted laws.

“This is a dictatorial, after-the-fact pronouncement by him in line with a lot of other cherry-picking he’s done on the signing statements,” Mr. Specter said in a telephone interview. He added, “To put it differently, I don’t like it worth a damn.”

Now, that's the proper response except for the fact that it was delivered by Old Mr. Reliable who can be counted on to complain loudly just before he caves in to whatever the White House wants. I'm sure the fact that in just three months the next president might very well be a Democrat, and therefore not to be trusted with such awesome authority, has also registered with Sen. Specter.

So the dictatorship will continue right up until January 20, 2009, and all the secrets so assiduously hoarded will stay safely away from the light of day.

87 days.