What should Congress do if the president refuses to enforce a law – or some part of it he deems unconstitutional?

It's a question that has simmered in the GOP-controlled Congress over issues ranging from post-9/11 national security to the use of torture in the war on terror.

But it resurfaced on Capitol Hill this week, as lawmakers consider giving President Bush line-item veto authority and, behind the scenes, negotiate with the White House over Mr. Bush's claim that he has authority to conduct domestic wiretapping without a warrant, despite a 1978 law that says otherwise.

"The real issue here is whether the president can cherry-pick what he likes," said Sen. Arlen Specter (R) of Pennsylvania, chairman of the Senate Judiciary Committee, as he opened a hearing Tuesday on presidential signing statements.

Such statements – issued when presidents sign bills into law – are a long White House tradition. Bush has produced a record total – more than 750 of them – that lay out his interpretation of the new law to Congress, the courts, and the public.

"The president hasn't vetoed any bills, but basically he has done a personal veto. He has said which laws he will not follow and ... put himself above the law, even the same law he has signed," said Sen. Patrick Leahy of Vermont, the ranking Democrat on the Judiciary panel.

Not all Republicans are as enthused as chairman Specter and Senate Democrats over this line of questioning, especially as lawmakers head into fall elections that could change control of both houses of Congress.

"This is a fascinating topic, mainly something law students and lawyers can love," said Sen. John Cornyn (R) of Texas, a member of the Judiciary Committee, who notes that the practice of presidents issuing signing statements goes back to 1821.

"As a practical matter, I don't know what impact it has.... It promotes public discourse and discussion about what the roles of the legislative branch and the executive branch are," he added.

Testifying for the Bush administration, Michelle Boardman, deputy assistant attorney general in the Office of Legal Counsel at the US Department of Justice, said that signing statements serve a "legitimate and important function" and are not an abuse of power.

"Congress should not fear signing statements, but welcome the openness they provide," she said. "The president must execute the law faithfully, but the Constitution is the highest law of the land. If the Constitution and the law conflict, the president must choose," she said.

Also testifying before the committee, Nicholas Rosenkranz, a law professor at Georgetown University Law Center in Washington, called the "recent brouhaha" over presidential signing statements "largely unwarranted."

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