Civics 101

In the lead editorial in today's Wall Street Journal Robert F. Turner, a former Reagan lawyer who specializes in intelligence law, argues that the President is bound by the Constitution and not laws enacted by Congress if they impinge on the power of the Presidency. Thus, he says, every President since Roosevelt has been justified in engaged in warrantless wiretapping in the name of national security.

I don't doubt that what Turner says about past Presidential action is true. But I think he is missing the point here. I can imagine a scenario where situations arise in national security issues that are not covered by existing law. Or, where quick action is required in the name of national security. But my understanding is that FISA was designed to cover just these kinds of situations. FISA approval, even if gained after the fact, brings the action under the umbrella of the law. I don't see what the problem is with this. Nobody, including the President is above the law.

But what I find incredible is this assertion by Turner:

Much contemporary debate over presidential claims of power to ignore "laws" fails to appreciate the modern congressional practice of enacting flagrantly unconstitutional statutes. This helps explain the increased use of presidential "signing statements" in recent decades. On June 11, 1976, Sen. Robert P. Griffin (R., Mich.) inserted a lengthy statement I'd drafted into the Congressional Record explaining why "legislative vetoes" of executive agency actions were unconstitutional. Seven years later, the Supreme Court echoed those arguments in reaching the same conclusion in the Chadha case. The congressional response? It has since enacted more than 500 new unconstitutional legislative vetoes.

Legislative vetoes? Does he mean laws? Laws drafted by the legislature and signed by the President? If the law is so "flagrantly" unconstitutional why is the President signing it?

Again, I think Turner is missing or perhaps distorting the issue here. This President doesn't on rare occasions issue a signing statement stating his disagreement with a particular aspect of a newly enacted law. He routinely, flagrantly, issues signing statements. He is above the law. He is dismissive of the whole constitutional process: "Go ahead and enact whatever laws you want; I am free to ignore them."

With this President we are not dealing with those rare shades of gray in the legislative process that all Presidents face, we are dealing with a rogue branch of the government bent on abusing power.