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The White House and the law

September 18, 2007 |  1:30 pm

With Alberto Gonzales out as attorney general and the new guy in the middle of a tug-of-war between the White House and Congress over executive powers, we thought we'd direct you to this interesting piece in the Nation by Charlie Savage, the Boston Globe's Pulitzer Prize-winning national correspondent and author of "Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy."

Contentions by the White House that George Bush enjoys more powers than many previous presidents have exercised has spawned a pretty significant constitutional debate, over everything from Gonzales' torture memo to Bush's use of signing statements to blunt elements of laws Congress passed that he didn't like. That's what vetoes are for, critics say.

In the Nation piece, Savage rounds up some intriguing assessments by some of the architects of the devices used by the Bush administration -- devices they conjured up themselves under the Reagan administration but intended for much more limited application.

Among them is Pepperdine University's Douglas Kmiec, a former Reagan administration lawyer who supports many of the Bush administration policies but has criticized the way the White House has glommed onto and expanded the use of signing statements that he helped revive more than 20 years ago. Savage writes:

Kmiec acknowledged the Reagan team's role in inflating the mechanism, but he insisted that they had used signing statements only for a much more modest purpose: to leave a record of the President's understanding of ambiguous laws for judges to consult during any future litigation. Kmiec rejected Bush's practice of using signing statements to instruct the executive branch to contradict the clearly expressed will of Congress, saying that a President instead ought to veto laws he dislikes. "Following a model of restraint, [the Reagan-era Office of Legal Counsel] took it seriously that we were to construe statutes to avoid constitutional problems, not to invent them," Kmiec told me. He added, "The President is not well served by the lawyers who have been advising him."

Which helps put into context some of the congressional reaction to the nomination of Michael B. Mukasey as attorney general. And you can expect to hear a few questions in the confirmation hearings about his views on the extent of executive power.

-- Scott Martelle

P.S.: It turns out Savage will be speaking about his book at 7:30 p.m. Thursday at the William Turner Gallery, 2525 Michigan Ave., Santa Monica, sponsored by the American Constitution Society.

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