Sen. Sheldon Whitehouse (D-RI) delivered an important speech today full of shocking information, if it's still possible to be shocked by the Bush administration. As a member of the Senate Intelligence Committee, Whitehouse has access to the Justice Department's secret legal determinations. He then was able to get some of the determinations declassified, or at least the summaries he wrote down while reading them in a secure room. This is how he characterizes three of them:
1. An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.
2. The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President's authority under Article II.
3. The Department of Justice is bound by the President's legal determinations.
In other words, the president is the law. Whitehouse concludes:
When the Congress of the United States is willing to roll over for an unprincipled President, this is where you end up. We should not even be having this discussion. But here we are. I implore my colleagues: reject these feverish legal theories.
There is, of course, little reason for Whitehouse to be optimistic this will happen. Still, it's a surprise to see even one senator demonstrating he cares about these issues, and explaining them in a way normal people can understand.
For more, see Marcy Wheeler's typically cogent commentary.