THE PRESIDENT AND THE LAW

How far does the president’s authority reach? President Bush and others assert that it is farther than Congress might recognize. He contends that his inherent constitutional power and the Iraq war powers act permit him to order warrantless domestic wire tapping, prohibited by a 1978 statute.

And just last month, he asserted his right to bypass a law banning “cruel, inhuman and degrading” treatment of detainees suspected of terrorism. He had reluctantly agreed to that prohibition, embodied in an amendment proposed by Sen. John McCain and overwhelmingly adopted by both houses of Congress. But in signing the defense spending bill that included the amendment, Mr. Bush stated that he would “construe” the provision “in a manner consistent with the constitutional authority of the president” as commander in chief.

The issue of presidential power figures in the current confirmation hearings on the nomination of Samuel A. Alito Jr. for the Supreme Court. Judge Alito, as a Reagan administration lawyer, wrote a memo in 1986 arguing that when a president signs

a bill into law he should declare how he interprets it. “The president’s understanding of the bill should be just as important as that of Congress.”

Vice President Dick Cheney, defending the eavesdropping operation, said recently that the president “needs to have his constitutional powers unimpaired, if you will, in terms of the conduct of national security policy.” Mr. Cheney has led the way in expanding executive branch power. His office took a leading part in devising memos that justified the abuse and torture of prisoners, and he tried repeatedly to block the McCain amendment and then to exempt intelligence agencies from the ban.

In his Dec. 30 signing statement, Mr. Bush marshaled arguments for expanded presidential power. He referred to “constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the president … of protecting the American people from further terrorist attacks.”

True enough, the United States is still at war and the American public rightly fears some new threat on the scale of the 9-11 attacks.

Still, opposition is increasing to a seemingly unlimited growth of presidential power. Three key Republican senators have rejected Mr. Bush’s declaration that he can legally bypass the anti-torture ban. John W. Warner of Virginia, chairman of the Senate Armed Services Committee, and Sen. McCain of Arizona issued a joint statement rejecting the president’s position. They promised “strict oversight to monitor the administration’s implementation of the law.” Sen. Lindsey O. Graham, R-S.C., agreed with their statement.

Even in wartime and under terrorist threat, that’s what the Constitution’s checks and balances are all about.