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Bill Will Restore Congress’ Powers in an Era After Bush

The recent revelation that former Vice President Dick Cheney unilaterally decided to keep Congress in the dark about a CIA program targeting al-Qaida members for assassination comes as no surprise.

  • Emily Berman
Published: July 29, 2009

Published in Roll Call. (Sub. required)

The recent revel­a­tion that former Vice Pres­id­ent Dick Cheney unilat­er­ally decided to keep Congress in the dark about a CIA program target­ing al-Qaida members for assas­sin­a­tion comes as no surprise.

The last admin­is­tra­tion’s aggress­ive expan­sion of exec­ut­ive power is well-known. From surveil­lance prac­tices to energy policy and from politi­cized crim­inal prosec­u­tions to inform­a­tion about climate change, the Bush admin­is­tra­tion used its control over inform­a­tion to stifle dissent, to skew debate and to insu­late itself from account­ab­il­ity. It asser­ted the right to ignore duly enacted stat­utes. And it kept secret from Congress and the Amer­ican people many of its policies and the legal justi­fic­a­tion for those policies.

This is not news to any Member of Congress who tried over the past eight years to extract neces­sary inform­a­tion from the exec­ut­ive branch, who attemp­ted to discover the legal justi­fic­a­tions for exec­ut­ive branch programs, or who watched the pres­id­ent sign a bill into law while issu­ing a “sign­ing state­ment” claim­ing the power to disreg­ard all or part of that new law.

The consti­tu­tional system of checks and balances – designed by our nation’s founders to prevent the concen­tra­tion of power in any one branch of govern­ment – has become danger­ously distor­ted. This recent expan­sion of exec­ut­ive power is an endur­ing threat to our very system of demo­cratic govern­ment.

A bill that will be intro­duced this week, the Checks and Balances Restor­a­tion and Revital­iz­a­tion Act, goes a long way toward revers­ing the damage inflic­ted on the consti­tu­tional balance of powers. The bill recog­nizes that Congress has struggled in recent years to resist effect­ively aggress­ive asser­tions of exec­ut­ive power. The result has been an infringe­ment on Congress’ abil­ity to act as a coequal branch of govern­ment.

The bill provides Congress with new tools to combat certain meth­ods frequently used by the exec­ut­ive to thwart or under­mine Congres­sional author­ity. These new tools provide Congress with effect­ive means of chal­len­ging improper claims of exec­ut­ive priv­ilege, ensur­ing compli­ance with Congres­sional subpoenas, check­ing the use of pres­id­en­tial sign­ing state­ments to disreg­ard duly enacted laws and over­com­ing the Justice Depart­ment’s refusal to disclose legal opin­ions that give impun­ity to exec­ut­ive branch offi­cials for conduct that viol­ates the law.

First, the bill ensures that Congress will have access to the inform­a­tion it needs to perform its consti­tu­tional duties. The bill confirms the power of Congress to chal­lenge a claim of exec­ut­ive priv­ilege in court when the exec­ut­ive refuses to provide inform­a­tion. When nego­ti­ations fail, Congress will have a way to resolve the dispute and obtain any with­held inform­a­tion to which it is entitled.

The bill also creates new mech­an­isms to enforce Congres­sional subpoenas. Rather than depend on the exec­ut­ive branch to prosec­ute its own offi­cials for contempt of Congress, Congress could require a special coun­sel to prosec­ute such charges. And the bill provides that the House of Repres­ent­at­ives can go to court to collect any fines that it imposes on a contu­ma­cious witness under its inher­ent power to punish contempt.

When the pres­id­ent issues a “sign­ing state­ment” that he may disreg­ard or decline to enforce a duly enacted law, the bill allows Congress to bring a lawsuit to compel the pres­id­ent to enforce the law.

And the bill expands require­ments that the Justice Depart­ment report to Congress when the depart­ment concludes that a law is uncon­sti­tu­tional or other­wise not bind­ing on the pres­id­ent.

To date, the current admin­is­tra­tion has not made such extra­vag­ant claims of exec­ut­ive author­ity. But it is the nature of pres­id­ents to seek expans­ive powers. The framers of the Consti­tu­tion provided each branch “neces­sary consti­tu­tional means and personal motives to resist encroach­ments of the others,” James Madison said, so that “each may be a check on the other” and thus “a sentinel over the public rights.” Congress must be vigil­ant to protect Congress’ consti­tu­tional powers regard­less of who is pres­id­ent or which party is the major­ity in Congress.

The Checks and Balances Restor­a­tion and Revital­iz­a­tion Act gives Congress more effect­ive and flex­ible means to resist the encroach­ment of future pres­id­ents, so that Congress can protect its consti­tu­tional turf and thus protect the repub­lic from a danger­ous concen­tra­tion of power. Congress should pass the bill, and Pres­id­ent Barack Obama should put tempta­tion behind him and sign the act into law.