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Franking Privilege



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David Broder is sometimes called the dean of the Washington press corps.  (As someone who works in academe, I sometimes wonder why “dean” is considered a term of praise elsewhere.)  I guess in some circles this means that attention must be paid when Broder pronounces something “important.”  Well, in his latest column the dean notices the terribly, terribly important speech given by Rep. Barney Frank (D.-MA) on the House floor a week ago, in which Frank railed against President Bush’s putatively “plebiscitary” notion of the presidency, and claimed that the president doesn’t believe in the Constitution’s checks and balances.  The performance wasn’t exactly Webster’s Second Reply to Hayne, and I can’t quite tell which parts impressed Broder the most—the modest and plausible argument that the president would help himself out if he’d come to Congress for legislative assistance a little more often; or the incoherent account of how our Constitution works that underpinned Frank’s case against Bush; or the downright exaggerations and fabrications with which the speech was liberally peppered.  Judging by what Broder chose to highlight from this hour-long oration, I suspect it was the last of these features.

Frank asserts that Bush believes in “plebiscitary democracy,” in which “a leader is elected, but once elected has almost all of the power.”  This makes Bush more like Hugo Chavez than anyone else Frank can think of.  The president is “radically trying to change the nature of our democracy,” because he believes only in a “democracy of the strong man.”  Frank’s evidence for this radicalism of Bush’s amounts to one word—saying he was “the decider,” a perfectly respectable word (far older than the clunky 20th-century “decision-maker”) that Frank mocks as “not a word that you find often in American history.”

But in what context did Bush use the word, the one time he has used it on the record?  It was in response to the umpteenth press variation on “why don’t you fire Donald Rumsfeld?” that Bush used it, five years into his presidency (see here).  His answer:

I have strong confidence in Don Rumsfeld. I hear the voices, and I read the front page, and I know the speculation. But I’m the decider, and I decide what is best. And what’s best is for Don Rumsfeld to remain as the Secretary of Defense.

Since it is well-settled in law and in constitutional tradition that only the president can fire the Secretary of Defense, the pseudo-controversy over Bush’s “I’m the decider” remark is like an episode of Seinfeld, a show about nothing.

Frank also thinks that Bush approached the hallowed FISA statute after the war began and “said no, I do not like that. That is too confining, so I will ignore it.”  But this is not the administration’s argument at all.  In a lengthy letter (PDF here) to Sen. Specter the other day (admittedly, after Frank’s speech, but the argument is not new), the Justice department again sets forth its view that the Terrorist Surveillance Program does not constitute a circumvention of FISA, but is fully authorized by the authorization to use force that Congress passed in September 2001.  Frank is free to disagree with that argument, but he is disingenuous to pretend the administration’s view is something else entirely, or constitutes some claim to the power to “ignore” laws at will.

In the same vein is Frank’s complaint about presidential signing statements.  Here is his characterization of that practice by the administration:

[T]hey say, okay, here is the deal, we will sign it, but when we sign it, we will say that we are really signing these parts and not the other parts, because we consider some of it unconstitutional, so we will ignore it. That is a wholly unconstitutional approach.

The President has a right to say, this is unconstitutional, I don’t like it. His job then is to veto the bill. But what he does is he picks and chooses; he thinks the legislation is a supermarket. He walks in, he takes some from here, some from there, he discards what he doesn’t like.

 

And here is the official, on-the-record position of the administration, in testimony by Deputy Assistant Attorney General Michelle Boardman in a recent Senate hearing on this subject:

 

It is important to establish at the outset what presidential signing statements are not: an attempt to “cherry-pick” among the parts of a duly enacted law that the President will choose to follow, or an attempt unilaterally to redefine what the law is after its enactment. Presidential signing statements are, rather, a statement by the President explaining his interpretation of and responsibilities under the law, and they are therefore an essential part of the constitutional dialogue between the branches that has been a part of the etiquette of government since the early days of the Republic. Nor are signing statements an attempt to “override” duly enacted laws, as some critics have suggested. Many constitutional signing statements are an attempt to preserve the enduring balance between co-equal branches, but this preservation does not mean that the President will not enforce the provision as enacted.

 

Can Rep. Frank come up with one—just one—example of a signing statement by President Bush where his description of the practice is more accurate than Ms. Boardman’s?  His speech is devoid of any examples, which is telling.

It is hard to pick one’s favorite misplaced accusation in this speech.  Here’s a strong candidate: “The argument that democracy, that collaboration with the Congress, that judicial review, that an independent media, that these somehow detract from our ability to defend ourselves is not only morally flawed, it is factually wrong.”  Yeah, you could say that.  You could also say that no one in the Bush administration has ever made that argument.

But then, this is a fellow who thinks that “the process of briefing Members of Congress is supposed to be part of the constitutional mandate for collaboration.  It does not come from Miss Manners; it comes from the Constitution.”  (This moment of sheer inanition was quoted by Broder as one of his favorite lines.)

I’m all for a culture of consultation between the branches of government, so far as is practicable.  But does Rep. Frank have a Constitution with some stuff in it that my copy is missing?


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