FEIN: Erosion on the Hill

COMMENTARY:

The executive-legislative conflict that surfaced last week over a Department of Homeland Security (DHS) privacy reporting obligation is now familiar.

The president assaults a legislative prerogative. Congress turns the other cheek, bettering the instruction of Jesus’ Sermon on the Mount.

The pattern began with the power of Congress to authorize the initiation of warfare, which the president usurped; it repeated with the power of Congress to regulate the collection of foreign intelligence through the Foreign Intelligence Surveillance Act, which the president defied; and, it reached its apogee with the power of Congress to oversee the executive branch to insure political and legal accountability, which the president pulverized by instructing former House Speaker Nancy Pelosi, California Democrat, even derailed a contempt citation against Mr. Rove in exchange for the votes of Blue Dog Democrats on the $750 billion bail-out legislation euphemistically styled the “Troubled Asset Relief Act of 2008.”

The latest presidential constitutional demarche concerns the congressional power to obtain nonclassified, nonconfidential information from the executive branch undistorted by the president’s political agenda. A law enacted in August 2007 requires that the DHS’ chief privacy officer to report annually about the department’s activities that affect privacy to Congress “without any prior comment or amendment” by superiors at the department or the White House.” The privacy officer is appointed by and serves at the pleasure of the secretary of DHS.

The directive that his privacy report be submitted directly to Congress was intended to advance twin purposes: to inform the public of DHS’ respect or disrespect for privacy to enable voters to adjust their political loyalties and campaign contributions accordingly; and, to provide Congress with a broadened array of expert assessments from inside the executive branch bearing on the need to maintain, augment, or subtract from existing privacy protections within DHS. Nothing in the August legislation muzzled the president from either transmitting to Congress a competing privacy assessment, or speaking about the matter to the public, or criticizing the privacy officer’s evaluation.

Further, the officer would be unlikely to write a privacy report putting the president or DHS in an unfavorable light because his tenure is dependent on the confidence of the DHS secretary. In sum, the privacy officer’s direct reporting obligation to Congress would be at most a pin prick in the president’s power to advise Congress about the need for DHS privacy legislation or to assess his own privacy performance.

But Justice Department opined that the Constitution endows the president with plenary control over subordinate executive branch officials immune from congressional regulation to protect against unauthorized disclosures or otherwise.

Members of Congress either yawned at the latest insult to their oversight powers or cursed loudly to the heavens.

As reported by Judiciary Committee, snarled: “This is a dictatorial, after-the-fact pronouncement by [Mr. Chertoff] in line with a lot of other cherry-picking he’s done on the signing statements.

To put it differently, I don’t like it worth a damn.” House Homeland Security Committee, speaking through a spokeswoman, thundered that he would be writing a letter inquiring how DHS prepared its latest privacy report. The request will almost certainly provoke the president to retort that an answer would transgress on his constitutional privilege to shield internal executive branch deliberations or maneuvers from congressional view.

The president’s claim to exclusive control over what executive branch officials communicate to Congress is constitutionally preposterous. James Madison, father of the Constitution, explained in the Federalist Papers that Congress transgresses on the president constitutional domain only when it exercises a “controlling” influence over an executive power. The law entitling Congress to receive privacy impact statements about DHS by the department’s chief privacy officer leaves the president’s power to propose or to criticize privacy legislation undisturbed. Neither does the direct communication impair the president’s control over the operational activities of DHS or its personnel. The president retains the power to fire any privacy officer who submits a report that the president believes undercuts his policy or political agendas; and, to insist the congressional report comply with executive orders regarding disclosures of classified information or presidential advice.

Further, the congressional reporting obligation is far less intrusive on the president’s control of executive branch personnel than countless other laws that have been sustained by the United States and testifies before Congress free from presidential oversight irrespective of their national security implications. And Congress has established independent counsels outside presidential control to prosecute national security or other crimes perpetrated by the president or his inner circle.

Mr. Chertoff’s defiance of the direct reporting law with impunity is the latest nail in the coffin of Congress’ informing and oversight functions - its cardinal responsibilities. Few members of Congress or the public understand or care about the shriveling profile of the national legislature in favor of the president. And fewer still are alarmed by Thomas Jefferson’s admonition: “If a nation expects to be free and ignorant, in a state of civilization, it expects what never was and never will be.”

Bruce Fein & Associates, Inc., and author of “Constitutional Peril: The Life and Death Struggle for our Constitution and Democracy.”