I've long claimed that the Bush administration's justifications for the expansion of executive power amount to a reinterpretation of the power of the presidency as monarchical. On Friday, that argument picked up an important new ally: Sen. Sheldon Whitehouse.
Whitehouse - the former Attorney General for the state of Rhode Island - along with fellow senators from the Intelligence and Judiciary committees, was granted limited access to the Justice Department's legal opinions on executive authority, and yesterday afternoon he summarized what he had learned as follows:
1. An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.2. The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II.
3. The Department of Justice is bound by the President’s legal determinations.
Here is how he interprets those rules:
1. “I don’t have to follow my own rules, and I don’t have to tell you when I’m breaking them.” 2. “I get to determine what my own powers are.” 3. “The Department of Justice doesn’t tell me what the law is, I tell the Department of Justice what the law is.”
There's really nothing new here, I suppose, but it is nice to see this issue getting some much needed attention from members of the Senate. Bush may not ever undo the damage he has done to the constitution, so it will be up to the Senate in 2009 to do so.
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