- The Washington Times - Tuesday, March 26, 2002

To paraphrase patriot Patrick Henry on King George III, President Franklin Roosevelt's court-packing scheme provoked a congressional backlash; President Richard Nixon's war powers and impoundment abuses were answered with the War Powers Resolution and the Budget Control and Impoundment Act; and President George Bush should be chastened by these examples.

But instead Mr. Bush is seeking to arrogate power that would have stunned the Founding Fathers, and setting the stage for congressional counterpunching. If the president persists down this worrisome road failing to see that the Constitution's separation of powers is a matter of degree, not of absolutes then Mr. Bush may leave the White House with lesser prerogatives than when he arrived.

The gauntlet has been thrown down on three fronts. Homeland Security Director Tom Ridge, a presidential adviser, is balking at testifying before Congress about counterterrorism policies and coordination within the executive branch. The director's views are sought in conjunction with pending legislation that would erect a statutory anti-terrorism czar with greater clout than Mr. Ridge now commands. No classified information has been requested. The congressional demand, pertinent to its oversight and lawmaking functions, stands on firm constitutional ground. As the United States Supreme Court explained in Watkins vs. United States (1957), congressional investigative power "encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.

It comprehends probes into the departments of the federal government to expose corruption, inefficiency or waste."

President Bush, nevertheless, insists that presidential advisers are constitutionally shielded from congressional oversight. But that custom has never received Supreme Court endorsement, and has never been unyielding.

President Ronald Reagan's national security advisers, Robert McFarlane and John Poindexter, testified before Congress regarding arms sales to Iran; their counterpart under President Bill Clinton, Samuel R. Berger, testified about Haiti; and President Gerald Ford himself testified about the pardon of Nixon.

More important, the congressional oversight and informing functions would be crippled if presidential advisers, ipso facto, were shielded from scrutiny. They could be endowed with policy and management authorities traditionally vested in Cabinet officers yet would operate in secrecy.

History speaks volumes. In foreign affairs, President Woodrow Wilson's Col. Edward House, President Roosevelt's Harry Hopkins, and President Nixon's Henry Kissinger were far more powerful than were their anemic secretaries of state, Robert Lansing, Cordell Hull and William Rogers, respectively. Indeed, to illustrate the potential policy interchangeability of the two offices, one subject to oversight and the other not, under Mr. Bush's outlandish claim Mr. Kissinger occupied both simultaneously during the Ford administration.

And if that claim were sustained generally, to evade congressional oversight of Mr. Bush's legal policies, authority could be transferred informally or sotto voce from the attorney general to the White House Counsel. Presidential advisers on domestic policy could be similarly appointed to superintend Cabinet Councils to avoid uncomfortable or embarrassing scrutiny by the legislative branch. The informing function of Congress, its most pressing responsibility according to President Woodrow Wilson, would be lacerated.

If President Bush continues his mulishness, then a congressional reaction should be expected. Congress might either prohibit appropriated funds from paying for presidential advisers, make their appointments subject to Senate advise-and-consent authority under Article II, section 2, clause 2 of the Constitution, or challenge Mr. Bush in court where it is likely to prevail.

Indeed, under the standards expounded by the Supreme Court in Buckley vs. Valeo (1976) and Morrison vs. Olson (1988), Mr. Ridge is probably a "principal officer" of the United States whose appointment without Senate confirmation is unconstitutional.

President Bush's concealment from Congress of Vice President Richard Cheney's Energy Task Force discussions with Enron officials, whose underwriting of Bush campaigns has been lavish, is equally ill-conceived.

Disclosure is necessary to dispel the appearance of impropriety or conflicts of interest that shadow the task force recommendations and undermine public confidence in government. Attorney General John Ashcroft has already recused himself from Enron matters because of previous campaign contributions; and, Secretary of Army Thomas White, a former Enron tycoon, has followed suit.

Mr. Bush's fretting that breaching the confidentiality of Enron's lobbying would drive away private advice encroaches on the hallucinogenic. Who of any repute has scoffed at an Oval Office invitation because an iron-clad promise of secrecy was not forthcoming?

In sum, under the balancing test elaborated by the United States Court of Appeals for the District of Columbia Circuit in Senate Select Committee vs. Nixon (1974), Congress would probably defeat the president in a judicial tussle over the Enron communications.

President Bush is also seeking to marginalize Congress by concluding a major nuclear arms reduction pact with Russia in the guise of an executive agreement or coordinated unilateral declarations.

Such arms control agreements have been traditionally conceived as treaties, as with SALT I and the ABM covenant, thus constitutionally requiring Senate review and ratification by a two-thirds majority.

The Founding Fathers involved the Senate because they feared executive waywardness or treachery. As Alexander Hamilton observed in Federalist 75: "[I]t would be utterly unsafe and improper to intrust that [treaty making] power to an elective magistrate of four years' duration. … The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a president of the United States."

President Bush should be wary of wishing for clashes with Congress and the Supreme Court over claimed constitutional turf. He might get what he wishes for, and be worse off for it.


Bruce Fein is general counsel for the Center for Law and Accountability, a public-interest law group headquartered in Virginia.


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