BUSH AT HIS LOWEST EBB WITH DEMOCRATIC CONGRESS? UNFORTUNATELY JUST THE OPPOSITE!

More than 55 years have passed since the famous Supreme Court decision in the Steel Seizure Case (Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)) where Justice Jackson wrote his famous concurrence on the powers of the presidency vis-a-vis the support or opposition of Congress. We need to take another look at Jackson's discussion of where or when the president's powers are at a zenith and where they are at their lowest, depending on the express or implied will of Congress.

Over the last year, we have watched a Congress, ruled by the Democrats in both houses, powerless to impose its will on a president whose party, though in a minority in the Senate, still is able to thwart the will of a majority (51 Democratic senators, including "independent" Liebermann) by its power to continue debate ad infinitum through the traditional "filibuster." It takes 60 senators to stop the filibuster and bring the issue to a vote on the senate floor.

Because the Democrats cannot do this, they find themselves stymied in the senate. Therefore, none of their programs can be enacted. Take the S-CHIP program which would expand the children's health insurance program by some 35 billion and cover more children currently without any health insurance or with costly health coverage their families cannot really afford. The Republicans in the senate opposed the program following Bush who claimed it was too expensive and would take business away from private insurers. After all, Bush said, children could always receive care from hospital emergency rooms. The result, no S-CHIP expansion. Bush and the Republicans won, notwithstanding the majority in both house and senate controlled by Democrats. So here we have a president getting his way in spite of congress.

Jackson wrote:

"When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter."

The question I ask - given the opposition of both houses of Congress, is it clear that the powers of President Bush have been at their lowest ebb? And the answer must be, no. To the contrary, given the make-up of the senate, Bush has exercised considerable powers. In fact, on all major pieces of legislation, Bush has won and the Democrats in Congress have lost.