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Monday, 14 August 2006 10:19

Federal Judge OKs Law Signed by Bush Even Though the House Never Voted on It. We Need a Real Judiciary Again

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Last Friday, Federal District Judge John D. Bates conducted yet another feeble judicial capitulation to the Bush Administration when he ruled that it was acceptable for the president to sign a bill that had not been passed by Congress.

As many BuzzFlash readers may recall, a clerical error created a $2 billion discrepancy between two versions of the Deficit Reduction Act of 2005, which each respectively passed the House and Senate by the slimmest of margins. The mistake was quickly identified, but Bush rushed to sign the stingier copy - which cut two years off of Medicare coverage for certain medical equipment - despite being warned in advance that the bill he was about to approve had only been voted on by one half of Congress.

As we have previously noted about this story, the Constitution is pretty clear on how a bill becomes a law, and that's not it. If a teenager wrote a paper advocating this process in civics class, he or she would receive a failing grade. Nevertheless, Bush's lawyers are fervently trying to defend this fatuity instead of simply admitting for once that the president messed up. Hey, when you've gone through the trouble of putting jurists like Judge Bates on the bench, why not?

Bates' opinion (pdf) relies almost exclusively on dictum from Field v. Clark. But both houses of Congress passed the same bill in that case. It was also decided in 1892. What brilliant insight did Bates draw from this decision? His conclusion that any bill signed off to by the president and the presiding officers of the House and Senate is to be considered "complete and unimpeachable" proof of propriety, "thus precluding judicial consideration of any other evidence," including the congressional record and testimony from Congress or even the clerk who committed the error.

In other words, as long as the right three people have their signatures on a bill, the courts are powerless to say it can't be a law regardless of the circumstances. One can only imagine the fun Bush and Republican leaders could have if this ruling is not overturned (although they have given themselves quite a few powers extralegally already).

Sure enough, the Court considered and dismissed this very scenario in Field due to its apparent absurdity: "It is said that . . . it becomes possible for the speaker of the house of representatives and the president of the senate to impose upon the people as a law a bill that was never passed by congress. But this possibility is too remote to be seriously considered in the present inquiry." Unfortunately even Justice John Marshall Harlan, who was later famously able to foresee the dire consequences of Plessy v. Ferguson in his lone dissent, could not anticipate the unbridled levels of corruption and incompetence that George W. Bush has thus far achieved.

This isn't the first time Judge Bates has demonstrated his partisan agenda in a courtroom. As a deputy to Whitewater prosecutor Ken Starr during the 1990s, Bates helped override executive privilege to secure evidence from the Clintons. As one of Bush's early federal court selections not long afterwards, he ruled that Tricky Dick Cheney didn't have to reveal to congressional investigators who was on his energy task force or what they did because of executive privilege. Last year Bates refused relief for Omar Khadr, a Canadian citizen captured in Afghanistan at the age of 15 and sent to Guantanamo Bay as an "enemy combatant," who simply wanted to stop interrogation techniques such as beatings, threats of rape, and the use of his body as a "human mop" to wipe urine off the floor (Bates said this "would present a grave risk to the public interest"). Bates also ruled that the recording industry could acquire the names of online music downloaders from internet service providers, although his decision was later overturned on appeal.

To his credit, Bates did stand up to the White House once, demanding that they make some response to credible allegations that Ahmed Abu Ali, an American citizen, was being held in Saudi Arabia on Bush's behalf in order use torture to extract a confession. When they were unable to do so (they never even tried), Ali was finally extradited and tried in an American court with most of his rights. Nevertheless, this may have been an instance when illegalities were so egregious that Bates was unable to look the other way, and its unclear how little of an explanation he would have accepted in order to leave Ali to rot oversees as he did to Khadr.

It's still probably a safe bet that Bates is otherwise onboard with the Bush agenda. After all, Chief Justice Roberts quietly appointed him to the secret United States Foreign Intelligence Surveillance Court last Febuary - nobody else knew until someone noticed Bates' online biography had been updated with the information a month later. Unfortunately, Bates took the old spot of Judge James Robertson, who quit in protest after it was revealed Bush had been bypassing the court to eavesdrop on U.S. citizens without warrants.

Last week's ruling shows how important it is these days to have an independent judiciary who isn't afraid to stand up to the executive branch when it breaks a law (not to mention 26 different laws, according to a recent report from Rep. Conyers). Too many federal judges have meekly deferred to executive privilege or "state secrets" regardless of how blatantly Bush might be tearing apart the Constitution. Just three weeks ago U.S. District Court Judge Matthew Kennelly in Chicago ruled that the ACLU couldn't sue AT&T for releasing phone records to NSA because the entire program was supposed to be confidential.

In Federalist 51, James Madison poignantly explained the importance of checks and balances: "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."

Despite his supposed direct connection to God, Bush is no angel. And that's exactly why we need controls like judicial review to keep him in line. Luckily, justice still has another opportunity in Conyers v. Bush, a lawsuit filed on behalf of congressional Democrats on the same issue.