ACSBlog: The Blog of the American Constitution Society

Adam Cohen has an op-ed in today's New York Times where he observes that "the founders wanted the 'people’s branch' to be strong, but the Bush administration has usurped a frightening number of Congress’s powers — with very little resistance."

He notes that the administration's nominee for Attorney General believes "a president can defy laws if he or she is acting within the authority 'to defend the country,'" and would likely refuse to follow federal law and refer to a grand jury for criminal prosecution, upon Congress' request, a witness who invokes executive privilege in response to a Congressional subpoena.

Cohen argues that Congress has allowed its power to erode. He cites the President's use of signing statements and a GAO report that concludes, "in nearly one-third of the cases . . . after President Bush issued a signing statement objecting to a provision of a new law, his administration did not implement [the law] as written."  He adds the "Senate has routinely confirmed judicial nominees who make no secret of their belief that the president’s power should be sweeping, and Congress’s sharply cut back."

Cohen makes a series of prescriptions for Congress to regain its attenuated powers:

[Congress] can start by speaking out about the importance of Congressional power the way the administration has talked about deferring to the commander in chief. Congress should pass laws that support its own power — like a bipartisan one that Senator Arlen Specter, Republican of Pennsylvania, has introduced to nullify the impact of signing statements.

The Senate should refuse to confirm nominees who do not take Congressional power seriously. And Congress should make clear that if the executive branch will not enforce its subpoenas, it will use its own “inherent contempt” powers to do so.

As a side note, ACS made available the first comprehensive index of presidential signing statements issued between 2001 and 2007.  It was compiled by Professor Neil Kinkopf, author of a prior ACS Issue Brief on Signing Statements and the President's Authority to Refuse to Enforce the Law, released last year.