Even in its last throes, the Bush administration continues its uninterrupted lawlessness. As two recent stories by Charlie Savage of the New York Times revealed, President Bush ignored Congressional statutes requiring privacy disclosures by his Department of Homeland Security and non-discrimination in hiring by faith-based groups receiving federal funds. In twice turning his back on the rule of law, Bush again resorted to his favorite executive power-grabbing tools, the signing statement and "interpretation" by the DOJ's Office of Legal Counsel.
Savage, who won a Pulitzer Prize for his 2006 expose of Bush's unprecedented use of signing statements, revealed last Friday that the President is at again. The White House informed Congress that it is bypassing a law passed as part of the package of recommendation from the 9/11 Commission. Designed to prevent political interference with the Department of Homeland Security:
The August 2007 law requires the agency’s chief privacy officer to report each year about Homeland Security activities that affect privacy, and requires that the reports be submitted directly to Congress “without any prior comment or amendment” by superiors at the department or the White House.
But in a move ranking the Republican on Senate Judiciary Committee Arlen Specter (R-PA) deemed "unconstitutional" and "dictatorial," DHS Secretary Michael Chertoff told Congress the administration would not "apply this provision strictly" because it infringed on the president’s powers. And as Savage detailed, President Bush used a signing statement to thwart the will of Congress - and the law of the land:
The Bush administration defended the decision not to obey the statute. Erik Ablin, a Justice Department spokesman, said its legal view was consistent with what presidents of both parties had long maintained.
Mr. Ablin also said the administration had told Congress that the provision would be unconstitutional, but Congress passed the legislation - which enacted recommendations of the 9/11 Commission - without making the requested change. So the administration decided to sign the bill and fix what Mr. Ablin called its "defects" later.
In condoning illegal discrimination in hiring by religious charities receiving funds from American taxpayers, President Bush turned to his Office of Legal Counsel.
Once led by John Yoo (whose infamous memo defined torture as "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death"), the OLC in 2007 produced a memorandum claiming "the Bush administration says it can bypass laws that forbid giving taxpayer money to religious groups that hire only staff members who share their faith."
As Savage detailed on October 17th, the jaw-dropping Justice Department document makes patently illegal hiring practices the policy of the Bush administration:
The document signed off on a $1.5 million grant to World Vision, a group that hires only Christians, for salaries of staff members running a program that helps "at-risk youth" avoid gangs. The grant was from a Justice Department program created by a statute that forbids discriminatory hiring for the positions it is financing.
But the memorandum said the government could bypass those provisions because of the 1993 Religious Freedom Restoration Act. It sometimes permits exceptions to a federal law if obeying it would impose a “substantial burden” on people’s ability to freely exercise their religion. The opinion concluded that requiring World Vision to hire non-Christians as a condition of the grant would create such a burden.
Citing the plain language of the text and Supreme Court precedent, legal scholars like George Washington University's Ira C. Lupu deemed the DOJ's policy "a very big stretch." The ACLU's Christopher Anders aptly summed up President Bush's green light for religious discrimination, "It’s really the church-state equivalent of the torture memos."
As George W. Bush prepares to leave the White House to "replenish the ol' coffers," that statement will be just another grim chapter in his dark legacy of law-breaking.