It was not enough to elect him president. Now they’ve gone and crowned him king. Of course he’s been acting like a king for some time now. The Supreme Court simply formalized it. It happened in the case with the cumbersome name of Hein, Director, White House Office of Faith-based and Community Initiatives, et al. v. Freedom From Religion Foundation, Inc. et al. The cumbersomeness of the name could not hold a candle to the cumbersomeness of the conservative majority’s reason for explaining why if the king does wrong using his own money even when provided by the taxpayers, his subjects cannot challenge him. It was not the king’s first foray into the world of the unbridled.
It started with what are informally known as signing statements. Mr. Bush has adopted the practice of appending to whatever legislation sent to him that offends the royal nose, a signing statement. In the signing statement he lets it be known that he may ignore the law signed by him. The most famous signing statement was appended to a law that forbade torturing enemy combatants. That law was passed following the 2005 hearings to determine the suitability of Alberto Gonzales to become the chief law enforcement officer in the United States. During those hearings it was learned that Mr. Gonzales believed that torturing people overseas was permissible since the U.S. Constitution does not apply at overseas prisons.
Senator McCain, who knows better than any other legislator now serving what torture is like, promptly introduced a bill explicitly banning cruel, inhuman, and degrading treatment of detainees in U.S. custody anywhere in the world. When the legislation passed with a veto proof majority notwithstanding the opposition of Messrs. Bush and Cheney, Mr. Bush donned his nicest turncoat, called a press conference and with Mr. McCain at his side praised the legislation. After the press conference, when everyone had gone home he doffed his turn-coat and appended a “signing statement” in which he said in so many words he would construe the law as he saw fit. Speaking anonymously, because he wasn’t supposed to be speaking at all, a palace spokesman said: “Of course the president has the obligation to follow this law [but] he also has the obligation to defend and protect the country as the commander in chief, and he will have to square those two responsibilities in each case. We are not expecting that those two responsibilities will come into conflict, but it’s possible that they will.” Having learned of the wonders that can be wrought by the signing statement, we have now been introduced to the privileges of the Executive Order (EO).
By means of an EO the king can expand his authority. When Dick Cheney asserted for convoluted reasons that an EO mandating oversight of the handling of classified materials in White House offices did not apply to him, its express language notwithstanding, the president announced that as its promulgator he knew what it meant and it did not apply to the office of either the President or the Vice-President. The Supreme Court has now gone him one better. It has said that the king’s subjects may not challenge the king’s use of funds of the exchequer when they are spent in furtherance of an EO.
In the Hein case the court said that taxpayers as taxpayers did not have standing to challenge the president’s use of taxpayers’ funds in support of faith-based activities in violation of the Establishment clause of the Constitution when the funds were spent pursuant to an EO and not from funds specifically allocated by Congress for purposes proscribed by the Constitution. As the Court explained: “[T]he expenditures at issue here were not made pursuant to any Act of Congress. Rather, Congress provided general appropriations to the Executive Branch to fund its day-to-day activities. . . . Those expenditures resulted from executive discretion, not congressional action.”
The dissent explained why the majority was wrong even though the majority opinion is now the law of the land. Speaking for the rational branch of the court, Justice Souter said: “When executive agencies spend identifiable sums of tax money for religious purposes, no less than when Congress authorizes the same thing, taxpayers suffer injury. And once we recognize the injury as sufficient for Article III, there can be no serious question about the other elements of the standing enquiry: the injury is indisputably ‘traceable’ to the spending . . . .” Continuing Justice Souter said: “[I]f the Executive could accomplish through the exercise of discretion exactly what Congress cannot do through legislation, Establishment Clause protection would melt away.” The majority would like that. So would George Bush. Then we might truly become a Christian nation, like the country from which we got our independence more than two decades ago, as Mr. Bush said when addressing the West Virginia Air National Guard on July 4, 2007.
CHRISTOPHER BRAUCHLI is a lawyer in Boulder, Colorado. He can be reached at: Brauchli.firstname.lastname@example.org.