Debate Heats Up over Executive Powers

Copyright © 2009 National Public Radio®. For personal, noncommercial use only. See Terms of Use. For other uses, prior permission required.

STEVE INSKEEP, host:

Now most of the questions asked of Judge Alito at his Supreme Court confirmation hearings last week centered on issues of executive power. That's an issue that's been around Washington for centuries, executive vs. congressional power, and now some in Congress believe the balance has shifted too far toward the White House. Here's NPR's Brian Naylor.

BRIAN NAYLOR reporting:

During his questioning of Alito, Senator Patrick Leahy of Vermont, the ranking Democrat on the Judiciary committee, asked him for his view on the breadth of the president's powers.

(Soundbite of hearings)

Senator PATRICK LEAHY (Democrat, Vermont): Could he order our intelligence agencies to do something that was specifically prohibited by statute?

Judge SAMUEL ALITO (Supreme Court Nominee): He has to follow the Constitution and the laws of the United States. He has to take care that the laws are faithfully executed.

NAYLOR: But some members of Congress are wondering just how faithfully Mr. Bush intends to execute one law in particular, a ban on the use of torture and degrading or inhuman treatment in interrogating detainees. It passed by overwhelming margins in Congress, but a signing statement issued by the White House said the executive branch, quote, "shall construe the law in a manner consistent with the constitutional authority of the president as commander in chief." Some interpret that to mean the president can order the use of torture if he deems it necessary, not what Republican Senator Lindsey Graham of South Carolina, a co-sponsor of the measure, had in mind at all.

Senator LINDSEY GRAHAM (Republican, South Carolina): The signing statement was a bit unnerving to me because we rejected the idea of a presidential waiver. And we've been trying to make the point to Judge Alito that in a time of war, the president has many powers as commander in chief to protect us, but he's not above the law. So if we have a statute preventing torture, we have a statute requiring the humane treatment of detainees, I don't believe that the commander in chief's responsibilities by themselves would allow the president to ignore that statute.

NAYLOR: While some lawmakers appear to be standing up to the president on the issue of torture, in many other areas, the Republican-controlled Congress has helped erode its own power by bending over backwards to accommodate him. James Thurber, a political science professor at the American University in Washington, says it's only natural that a Republican Congress is not eager to investigate a Republican president, but even considering that reality, he says this Congress has been downright timid about challenging the president.

Professor JAMES THURBER (American University): For example, there have been no rigorous oversight hearings on the Hill about the war. Even about Katrina, there were a few, but they were not hard-hitting, so they've gone along with the president in terms of expansion of executive privilege, presidential signing statements. Even on this NSA tapping controversy, they haven't really pushed back on the president.

NAYLOR: That shows signs of changing. Senate committees plan hearings on the domestic surveillance program next month. Later this month, a hearing on the recent mine disaster in West Virginia is planned. Thurber says even if they were interested in tough oversight, Republican congressional leaders have been hamstrung by their own internal struggles.

Prof. THURBER: We have a leader in the Senate that finds it very difficult to bring in six to eight moderates behind a party position in the House of Representatives. It's imploding right now after Tom DeLay's departure. There's a battle over leadership there. Therefore, there's no central core of authority in the party on the Hill, and when that happens, you go along with the president.

NAYLOR: It's a far cry from 1995 when Republicans took control of Congress for the first time in 40 years. There was a palpable sense of energy then to change the status quo and impose an agenda on the White House rather than the other way around. There were even questions as to whether then-President Clinton was relevant. Senator Graham, elected as a freshman member of the House in 1994, says there is a big difference between now and then.

Sen. GRAHAM: The big difference between now and '94 is that we're at war and the commander in chief role is playing a dominant position legally and politically. Congressmen and women and senators are reluctant to challenge a president about military decisions during a time of war. We're being afraid of being accused of micromanaging the war, and I think too much so. I think we've been AWOL as a body when it comes to dealing with the war on terror.

NAYLOR: Graham says that's now changing, and Congress is starting to get involved, but as long as one party controls the White House and Congress, don't expect to see much shift in the flow of power along Pennsylvania Avenue.

Brian Naylor, NPR News, the Capitol.

INSKEEP: It's MORNING EDITION from NPR News.

Copyright ©2009 National Public Radio®. All rights reserved. No quotes from the materials contained herein may be used in any media without attribution to National Public Radio. This transcript is provided for personal, noncommercial use only, pursuant to our Terms of Use. Any other use requires NPR's prior permission. Visit our permissions page for further information.

NPR transcripts are created on a rush deadline by a contractor for NPR, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of NPR's programming is the audio.