‘EXECUTIVE POWER ON STEROIDS’

This headline did not appear in The New York Times, The Washington Post or even The Nation. Instead, it was on the generally Bush-supporting editorial page of The Wall Street Journal. The article was by Richard A. Epstein, a professor of law at the University of Chicago and a senior fellow at the conservative Hoover Institution at Stanford University.

Professor Epstein agreed with the Bush position that warrantless wiretaps don’t violate the constitutional ban on “unreasonable searches and seizures” and supports efforts to renew the Patriot Act.

But he accused President George W. Bush of “exceeding his constitutional powers in disregarding FISA,” the 1978 Foreign Intelligence Surveillance Act. He wrote that the president already has legal authority to “hound al-Qaida and follow FISA requirements for domestic warrants. If he wants to go further, he should seek explicit congressional authorization.”

The problem is that the Bush administration, by its actions and by many clear statements by Mr. Bush and Vice President Dick Cheney, has demonstrated that it won’t let Congress get into the eavesdropping program even to the extent of legalizing what the National Security Administration is already doing.

Mr. Cheney put it frankly in an interview on Feb. 7 on the PBS “NewsHour with Jim Lehrer.” He insisted that “we have all the legal authority we need with respect to the NSA program.” While welcoming congressional “suggestions,” he warned that corrective legislation would be both unnecessary and damaging to the national security and asserted that congressional leaders had agreed that it would “not be helpful.”

So the administration wants no congressional interference, and when it loses a round, President Bush sometimes resorts to a “signing statement,” a tool by which a president states his own interpretation of a law. When he signed a recent defense authorization bill containing the McCain amendment barring the “cruel inhuman and degrading” treatment of prisoners, Mr. Bush said the provision would be construed “in a manner consistent with the president’s constitutional authority to supervise the unitary executive branch.”

Note the phrase “unitary executive.” It is a constitutional theory that the Bush administration has frequently invoked. In its most extreme form, it claims supremacy of the executive branch over the legislative and judicial branches. Thus it justifies a president in ignoring or bypassing laws, treaties and court decisions.

Constitutional authorities differ as to how far the administration is pushing the theory. A test can come if the Democrats, joined by several Republicans, try to bring FISA in line with present practice. A signing statement could assert the president’s right to do anything he deems necessary as a war president. That would ignore the checks and balances that that both liberals and conservatives fear are already being skewed.