If there is anything scarier than a president who thinks he is above the law, it is a president who thinks that journalists aren’t. That is the combined message from two major newspapers this week.
Last Sunday’s Boston Globe carried an alarming 4,500-word front-page article about President Bush and the Constitution. It seems that Bush has asserted the right to ignore “vast swaths of laws,” simply because he thinks that these laws are unconstitutional. Through the veil of objectivity, it is hard not to detect a note of disapproval here. Four times the article says that Bush has asserted this right “quietly,” a word often used in news stories to imply menace. Quoted against Bush are people such as “legal scholars” and “many legal scholars,” including “a professor who has studied the executive power claims Bush made during his first term,” a “professor who studies executive power” and a “professor who specializes in executive-power issues.” Quoted in his defense are “former administration officials” and “[s]ome administration defenders,” as well as others who have served in or support the Bush administration.
The article is specifically about “signing statements,” in which the president offers his interpretation of an act of Congress as he signs it into law. This was an innovation of the Reagan administration, intended to give courts something other than a law’s legislative history—that is, Congress’ side of the story—in any future dispute over its meaning. Bush often signs a law and says that parts of it are unconstitutional at the same time. Sneaky!
To put pursuers off the scent, the Globe reports, Bush often obeys and enforces the very laws he says are unconstitutional. Even the fact that Bush has never vetoed a single act of Congress is part of his quiet executive power grab, because it denies Congress the “chance to override his judgments.”
The Globe does not report what its cadre of professors of executive power think that a president should do when called upon to enforce or obey a law he or she believes to be unconstitutional. It’s not an easy question. Some connoisseurs of “quiet” constitutional power grabs point to Marbury v. Madison, the 1803 case in which the Supreme Court established its power to have the last word in constitutional interpretation, as the beginning of a power grab by the judicial branch. That judicial power is not in the Constitution in so many words. The logic of Marbury was that every officer of the government has an obligation to follow the Constitution, and courts get the last word in any dispute over its meaning simply because their opportunity to express a view comes last procedurally. The Constitution is like a hot potato, and the judges are holding it when the music stops.
The tradition of judicial review is almost universally accepted, and it has served this country very, very well. What was dangerous about the Reagan administration’s signing-statements initiative was the claim that a president is entitled to govern according to his or her own interpretation of the Constitution even after the courts have ruled. This is a recipe for near-dictatorial executive power, not to mention governmental chaos, in which no fundamental issue can ever be resolved. But the Globe does not even suggest that Bush is claiming the right to thumb his nose at the courts in this way.
The complications come when the courts haven’t, or haven’t yet, ruled on the subject at hand. In that situation, shouldn’t the president—who swears to “preserve, protect, and defend” the Constitution—follow his own sincere beliefs about what the Constitution requires? Well, yes and no. It depends on how unclear the issue really is and how plausible the president’s interpretation. A president shouldn’t force the courts to rule again and again on some issue because the specific facts of each case are slightly different. More than that: After 220 years of constitutional interpretation, the doctrines are pretty thick on the ground. As a general rule, even on some novel issue, the president ought to follow the Constitution as he sincerely imagines that the courts will see it, rather than as he wishes they would see it. On the other hand, even the Supreme Court does change its mind occasionally. And the president, like anyone else, has the right to present a test case. But this is a right best used sparingly.
Bottom line: It is not necessarily an outrage for the president to run the government according to his own interpretation of the Constitution. And it is certainly not an outrage for the president to simply state his view and then do nothing about it. Legitimate outrage comes when the president acts in flagrant violation of the Constitution, defending his actions unconvincingly, disingenuously, or not at all. And Bush has offered plenty of grist for this mill in his assertion of the right to kidnap people off the streets, keep them locked up for years without a trial or even a public acknowledgment of their existence, to torture them, and so on. But nailing him simply for stating his views on a constitutional issue, without even asking whether those views are right or wrong, is wrong.
It’s wrong especially when contrasted with another current fever running through the nation’s editorial pages: the ongoing issue of leaks and anonymous sources. Many in the media believe that the Constitution contains a “reporter’s privilege” to protect the identity of sources in circumstances, like a criminal trial, in which citizens ordinarily can be compelled to produce information or go to jail. The Supreme Court and lower courts have ruled and ruled again that there is no such privilege. And it certainly is not obvious that the First Amendment, which seems to be about the right to speak, actually protects a right not to speak. Yet many in the media not only believe that it does. They believe passionately that it is not merely OK but profoundly noble to follow their own interpretation and ignore the Supreme Court’s.
Why must the president obey constitutional interpretations he disagrees with if journalists don’t have to? Upholding the Constitution is actually part of his job description. It is not part of theirs.
Last Sunday, the same day as the Globe piece, the New York Times had a front-page article about the other shoe waiting to drop in these leak cases. The Bush administration might go beyond forcing journalists to testify about the sources of leaks. It might start to prosecute journalists themselves as recipients of illegal leaks. As with the Globe story, this turns out to be a matter of pugnacious noises by the Bush administration. Actual prosecutions of journalists for receiving or publishing leaks are “unknown,” the Times article concedes. But this could change at any moment.
Well, maybe. It would be odd for the Bush administration to take up this particular cause at this particular moment, since the fellow most eager for evidence from journalists is the special prosecutor investigating the Bush administration. But it wouldn’t be constitutionally crazy. Maybe you can find an implied journalist’s privilege in the First Amendment’s guarantee of a free press, but you’ve got to look pretty hard. Why should the Constitution allow the government to prosecute the provider of stolen government information but not the knowing recipient or to prosecute all other recipients of such information (like two lobbyists currently under investigation) but not journalists?
Maybe journalists sincerely believe they are entitled to such constitutional special treatment. Maybe they are even right about this, and the courts are wrong. But who wants to live in a society where every citizen and government official feels free to act according to his or her own personal interpretation of the Constitution, even after the Supreme Court has specifically said that this interpretation is wrong? President Bush would top my list of people I don’t want wandering through the text and getting fancy ideas. But why should he stay out of the “I say what’s constitutional around here” game if his tormentors in the press are playing it?