WASHINGTON — Since George W. Bush became president, Republicans in Congress have nearly always marched in lock step with him. In large measure, their clout as lawmakers was enhanced by standing shoulder to shoulder with the president.
But that equation may be changing, and a crucial test comes next week when a Senate hearing opens into Bush's domestic spying program.
The hearing's tenor rests on a central question: Do the Republicans who control Capitol Hill have greater loyalty to Congress as an institution or to the president who heads their political party?
The National Security Agency controversy may be the first of the Bush presidency to place Republicans' roles as lawmakers and politicians so directly in conflict. Some GOP lawmakers have been less vocal than usual in defending the president, a sign that many have not made up their minds which role to put first.
"I think everyone wants to keep an open mind," said Sen. Orrin G. Hatch (R-Utah), a member of the Judiciary and Intelligence committees. "These are difficult issues to resolve."
Critics accuse the president of bypassing the Foreign Intelligence Surveillance Act passed by Congress in 1978 and ordering spying and wiretapping on U.S. soil without the warrants or judicial review the law requires.
The accusation goes to the heart of the concept of the separation of powers. When, if ever, does the president have the right to ignore or skirt an act of Congress?
As lawmakers, Republicans' instinct would be to protect the prerogatives of the legislative branch, insisting the president "faithfully execute the laws" of the country, as required by the Constitution. But as members of the GOP, their instinct would be to stand by their president, portraying the controversy as yet another example of Capitol Hill's partisan politics.
So far, both themes can be heard in Republicans' public comments; it remains to be seen which will prevail.
"There's lots of case law that indicates that the president can do what he says he's doing, but none of it is Supreme Court law," Hatch said. "There are lots of very great concerns too about civil liberties and warrantless surveillance. So those are the two sides we are trying to weigh."
The president has offered two main rationales for the surveillance program. First, that his authority as commander in chief gives him the inherent right to order such wiretaps. Second, that when Congress voted to authorize the use of force against Al Qaeda, that act implicitly gave the president the right to conduct warrantless domestic spying, overriding any previous legislation.
