Part 7 of a series on the McCain amendment: Bush and the separation of powers

Overview

Bush's position in his signing statement for the McCain amendment is based on the separation of powers as expressed in the Constitution and judicial decisions. Part 7 will analyze Bush's claim in a limited fashion. A full analysis could fill an entire book, and even I do not feel like undertaking that task. Instead, Part 7 will present some of the basic elements of this portion of Constitutional law and show why, in the context of the McCain amendment and one of the reasons given by Bush for opposing it, Bush's signing statement is bullshit.

Bush's argument

Bush’s argument will be that:

1. Article II, Section 2 of the Constitution makes him Commander in Chief of the military.
2. Article II, Section 1 of the Constitution vests all the executive power of the government in the President.
3. Supreme Court rulings establish that the President has primacy in matters of national security and foreign affairs.
4. The question of interrogation of detainees falls within his duties and powers as described in 1-3; therefore, the Congress–through the McCain amendment--cannot place any limits on his powers.

A brief look at the legal bases for Bush's argument

Article II, Section 2 of the Constitution says "The President shall be commander in chief of the Army and Navy of the United States[.]"

Article II, Section 1 of the Constitution says "The executive power shall be vested in a President of the United States of America." The FBI, CIA, State Department, and the Department of Justice are all part of the Excecutive branch.

As for the judicial decisions, they are numerous--and varied. For purposes of this post, I am going to present some of the authorities that best support Bush's position. A good discussion of some of those decisions appears in the dissenting opinion by Justice Thomas in Hamdi v. Rumsfeld, issued on June 28, 2004. Here are some excerpts from the opinion (citations to the applicable authorities are listed in the opinion) which support Bush's argument:

• The Founders intended that the President have primary responsibility--along with the necessary power--to protect the national security and to conduct the Nation's foreign relations.
• John Marshall explained that "[t]he President is the sole organ of the nation in its external relations, and its sole representative with foreign nations."
• With respect to foreign affairs as well, the Court has recognized the President's independent authority and need to be free from interference.
• That is why the Court has explained, in a case analogous to this one, that "the detention[,] ordered by the President in the declared exercise of his powers as Commander in Chief of the Army in time of war and of grave public danger[, is] not to be set aside by the courts without the clear conviction that [it is] in conflict with the Constitution or laws of Congress constitutionally enacted." Ex parte Quirin, 317 U. S. 1, 25 (1942). See also Ex parte Milligan, 4 Wall. 2, 133 (1866) (Chase, C. J., concurring in judgment) (stating that a sentence imposed by a military commission "must not be set aside except upon the clearest conviction that it cannot be reconciled with the Constitution and the constitutional legislation of Congress"). This deference extends to the President's determination of all the factual predicates necessary to conclude that a given action is appropriate. (emphasis added).

Hamdi in general, and Justice Thomas's dissent in particular, are not directly applicable to issues involving the McCain amendment, but the above principles nonetheless support Bush's argument. I must say, however, that there are other portions of Thomas's dissent which controvert Bush's argument, but in this post I am trying to present only elements which support Bush's argument.

So, for the sake of argument, let's assume that Bush's argument is correct.

Bush's argument shows that one of his reasons for opposing the McCain amendment is yet another false, disingenuous statement.

Recall that Bush claimed the McCain amendment was unnecessary because there were already laws which did the same thing. Bush also claimed that he would follow those laws. So why then did Bush issue a signing statement saying that he reserves the right to ignore the McCain amendment? How is that any different from saying that he does not have to obey any of the existing laws covering the same subject matter? Bush, through his signing statement on the McCain amendment basically said that he does not have to follow any law passed by Congress that deals with torture or related activity. So for him to say that there are existing laws that he will follow is just out and out bullshit.

And this is typical of Bush and the rest of his administration.

If Bush's argument is correct, then he--or any other President--never has to comply with any law created through the legislative process that relates to the military, national security, or foreign affairs.