When references to King George III aren’t enough

Andrew Sullivan attacks President Bush’s “signing statement” regarding the McCain Amendment banning the use of torture. Bush’s statement was: “The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power.”
Sullivan’s attack invokes the obligatory comparison to King George III and the stock assertion of a “breathtaking” presidential power grab. But does Sullivan’s analysis support his rhetoric?
Sullivan doesn’t deny that the president has certain inherent powers that flow from his role as commander-in-chief. And the assertion of such power is hardly a breathtaking approach shared only by George III and George W. Bush. All modern presidents claim such power and Bill Clinton did so aggressively under less exigent circumstances than those that confront this president.
So the issue is this — what does the president do when Congress passes a law that he thinks may unconstitutionally infringe on his inherent powers as commander-in-chief? I’m no expert in this area, but it seems to me that the president has four options: (1) veto the law, (2) sign it but don’t obey it, (3) sign it and obey it even when that means ceding his inherent authority to protect the country, and (4) sign it but state that he will construe the law in way that’s consistent with his constitutional authority.
The second and third options don’t seem very good, so that leaves the first and fourth — a veto or a signing statement. If the law cannot plausibly be construed as constitutional, the president should exercise the veto option. Otherwise, the use of a signing statement seems to make sense.
But what if the legislation is veto proof? In that instance, the president ultimately has only three options, and the case for the signing statement is strong. The president would be acting far less democratically if he refused fully to enforce the law without signaling his intentions. And the president would be violating his oath to uphold the Constitution, to the detriment of the nation’s security, if he failed to take measures to protect the country in deference to an act of Congress he thinks is unconstitutional.
There’s another dimension to this debate in the context of the McCain Amendment. As Charles Krauthammer has noted, McCain himself has said he does not want the president to follow a prohibition against torture in all circumstances. That’s how McCain gets around a major objection to his legislation — the need to use extreme interrogation techniques in extreme situations, such as where we have captured a terrorist who knows the location of a nuclear device soon to be detonated in the U.S. In a sense, then, McCain has made his own “signing statement” signaling that he does not really want the president to give up all of his inherent authority to interrogate high value terrorism suspects.
Clearly, we’re dealing here with an extraordinary issue as to which both Congress and the president are doing a considerable amount of jockeying. Bush’s jockeying seems far more defensible than Sullivan makes it out to be, and invoking King George doesn’t advance the analysis.
JOHN adds: Every now and then someone writes something so damn smart that all I can say is, I wish I’d done it myself. A good proportion of those pieces are written by Paul and Scott. Which makes me feel only a little better; I still wish I’d written it myself.

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