Blank checks, no balances
Boston Globe Editorial
BENJAMIN FRANKLIN'S warning that the Founding Fathers had created ''a republic, if you can keep it" came home this week with The Boston Globe's report that President Bush had once again added a signing statement to a bill, undermining the intent of Congress. Bush said he would not be held to the USA Patriot Act's requirement that the Justice Department keep closer track of the FBI's new powers and report on their use to Congress. Weeks before, Bush used a signing statement to exempt himself from Senator John McCain's antitorture amendment.
Senator Patrick Leahy of Vermont, a Democrat, is raising the alarm about this erosion of the system of checks and balances that has underpinned US democracy from the start. Similarly, former Supreme Court Justice Sandra Day O'Connor is concerned about attacks on the judiciary that threaten its independence.
The genius of the Founding Fathers was to give the three branches of government -- Congress, the executive, and the judiciary -- enough power to keep any one or two branches together from pushing the country either toward mob rule or dictatorship. The system works as long as one branch does not usurp the authority of the others.
But in a speech earlier this month O'Connor said she saw a danger of encroachment by Congress on the courts. She referred to efforts to strip courts of their authority on certain issues and mentioned threatening language used by a congressman and a senator against the courts as a result of judges' refusal to adhere to the wishes of Congress and President Bush in the Terri Schiavo case last year.
According to NPR's Nina Totenberg, who heard the speech, O'Connor warned of what happens to countries with emasculated judiciaries. ''It takes a lot of degeneration before a country falls into dictatorship," she said, ''but we should avoid these ends by avoiding these beginnings." In a 2004 decision that the administration could not keep enemy combatants from appealing their detention in court, O'Connor struck a similar theme: ''We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."
When Bush crossed his fingers behind his back on the antitorture bill, Senators McCain and John Warner, both Republicans, issued a statement saying Congress had specifically denied the president the waiver authority he claimed in the signing statement. They said the Armed Services Committee would monitor implementation of the law ''through strict oversight." By the same token, Congress will have to insist on the reports required by the Patriot Act or watch as the principle of separation of powers turns into the practice of separation of the powerless.