Thread: ABA Task Force to Examine Presidential Signing Statements

http://www.abanet.org/journal/ereport/jn9sign.html


ABA TASK FORCE TO EXAMINE SIGNING STATEMENTS
Group to Study Separation-of-Powers Implications of Presidential Comments on Laws

BY MOLLY McDONOUGH

After reports emerged that the Bush administration has significantly expanded the use of presidential signing statements, some say as an alternative to the line-item veto, the ABA has formed a task force to examine the practice.

Pledging to take a comprehensive and historical view of presidential signing statements, the 10-member Task Force on Presidential Signing Statements and the Separation of Powers Doctrine is on a tight schedule and is expected to come up with a report and recommendations in time for the ABA Annual Meeting this August in Honolulu.

ABA President Michael S. Greco of Boston says he asked the Board of Governors, which met in New Orleans last weekend, to approve the task force because the use of presidential signing statements has created separation-of-powers issues. Greco emphasized that the issue is not limited to the current administration but also dates back to the Reagan era.

Indeed, it was under former U.S. Attorney General Edwin Meese that presidential signing statements were developed to broaden executive power.

Presidents have traditionally issued signing statements when a congressional enactment is being signed. They have been used, relatively infrequently before Ronald Reagan's presidency, to interpret the language of the law, especially any ambiguous language, and to signal a president's unwillingness to enforce measures passed by Congress.

But the use of signing statements by Reagan, George H.W. Bush and Bill Clinton pales in comparison to the practice by President George W. Bush, who is reported to have used signing statements at least 750 times during his two terms in office, more than all previous presidents combined.

"This squarely presents a separation-of-powers issue," Greco says. "There are those who worry that what the president is doing is to assume the role of Congress of enacting or not enacting legislation that he disagrees with."

(To read through presidential signing statements since 1993, go to the Weekly Compilation of Presidential Documents.)

Greco says that to examine the issue, he reached out to a diverse, bipartisan group of constitutional and presidential scholars, some with legislative experience.

Chaired by Miami lawyer Neal R. Sonnett, the task force includes former FBI Director William S. Sessions (who was hired by Reagan and fired by Clinton); Patricia M. Wald, former chief judge of the U.S. Court of Appeals for the District of Columbia Circuit (appointed to the court by President Jimmy Carter); former U.S. Rep. Mickey Edwards, R-Okla.; George Washington University law professor Stephen A. Saltzburg; and Bruce Fein, who was associate deputy attorney general under Reagan.

The appointment of the task force is not without its critics. Edward Whelan, president of the Ethics and Public Policy Center, a conservative Washington, D.C., think tank, says task force members represent a "stacked deck" with opinions that will be liberal-leaning or overly critical of President Bush.

"It’s clearly a stacked committee designed to produce a partisan result," he says.

But Sonnett and others say they have an open mind. Sonnett says the task force will examine whether signing statements do damage to the constitutional system of checks and balances, how or if they should be used, and whether there have been abuses of signing statements in this administration or others.

Another criticism concerns the members’ backgrounds. While many of the members have opinions about what they’ve read about signing statements, few have actually read them.

Saltzburg acknowledges the group has homework to do, and says no one wanted to prejudge the issue until knowing more. "Before we take a position on whether we think these are good or bad things, we all concluded we need to educate ourselves as to what exactly a typical signing statement says," Saltzburg says.

Presidential signing statement expert Phillip J. Cooper, author of the 2002 book By Order of the President: The Use & Abuse of Executive Direct Action, was surprised when he read that no members of the task force were known to have done research in this area.

Yet Cooper, who is a professor of public administration at Portland State University in Oregon, says he is happy to see that the ABA is weighing in on the issue. He says the task force may be able to help begin discussions to clarify the role of signing statements in the constitutional order and may be able to recommend ways to resolve conflicts over signing statements.

"There have been and will be such conflicts," Cooper says.

Fein, who was part of the effort to expand the use of signing statements under Reagan, says there are appropriate signing statements and inappropriate ones. He views appropriate signing statements as those designed to resolve ambiguities and ensure that the president is a partner in the drafting of statutes.

But when a president uses the signing statement more like a line-item veto, to announce that something is unconstitutional or won’t be enforced, Fein has problems with the use. "The president has an obligation in his official capacity to honor and defend the Constitution," he says. "He shouldn’t sign a law he thinks is unconstitutional."

Asked about being invited to join the task force despite being a frequent critic of the ABA, Fein says that "on these issues, there’s a commonality."

"It’s not a time to have grudges out and play partisan here," Fein says. "This is the Constitution of the United States. This is of vital concern to everybody, especially lawyers."

Greco responds to critics with an invitation. "Stop criticizing the individuals and join us in addressing what is a very, very serious constitutional question that now confronts us," he says. "I invite everyone in America to express their views to the task force."

And if it takes a "small army of staff people" to receive those views, Greco says the ABA is ready to take that on.

©2006 ABA Journal



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It’s clearly a stacked committee designed to produce a partisan result," he says.

In my opinion the numbers speak for themselves. How can the committee be stacked, the content of the statements will either be Constitutional or non Constitutional. Here we go again with the "spin" to discredit someone before they even start.

Presidential signing statement expert Phillip J. Cooper, author of the 2002 book By Order of the President:

It is good to see at least one of them comes to this with a specialized background. I hope this won't be another 9/11 commission with loose ends and questionable explanations.

"I invite everyone in America to express their views to the task force."

Take him up on that offer!

Do I dare to hope that this may be the straw that breaks the back of the untoucable one.

Well, I think the American Bar Association(ABA) is the appropriate citizens watchdog for this. Considering the Constitution is the supreme law of the land and ABA knows the law inside and out. The only better would be retired Fed. Judges but they are retired for a reason....

But when a president uses the signing statement more like a line-item veto, to announce that something is unconstitutional or won’t be enforced, Fein has problems with the use. "The president has an obligation in his official capacity to honor and defend the Constitution," he says. "He shouldn’t sign a law he thinks is unconstitutional."

The President does not have the powers to interpret the law, so he can not make a judgment if it is Constitutional or not. That is the duty of the court. For that matter, he does not have the power to write the laws. That's the job of Congress! Otherwise, we would already have a country full of amnesty illegals.

Dixie

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Bush Ignores Laws He Inks, Vexing COngress


WASHINGTON (AP) -- Sen. John McCain thought he had a deal when President Bush, faced with a veto-proof margin in Congress, agreed to sign a bill banning the torture of detainees. Not quite. While Bush signed the new law, he also quietly approved another document: a signing statement reserving his right to ignore the law. McCain was furious, and so were other lawmakers.

The Senate Judiciary Committee is opening hearings this week into what has become the White House's favorite tool for overriding Congress in the name of wartime national security.

"It's a challenge to the plain language of the Constitution," the committee's chairman, Sen. Arlen Specter, R-Pa, said in an interview with The Associated Press. "I'm interested to hear from the administration just what research they've done to lead them to the conclusion that they can cherry-pick."

Apparently, enough to challenge more than 750 statutes passed by Congress, far more than any other president, Specter's committee says. The White House does not dispute that number, but points out that Bush is far from the nation's first chief executive to issue them.

"Signing statements have long been issued by presidents, dating back to Andrew Jackson all the way through President Clinton," White House spokeswoman Dana Perino said Monday.

Specter's first hearing Tuesday is about more than the statements. He's been keeping a laundry list of White House practices he bluntly says could amount to abuses of executive power - from warrantless domestic wiretapping program to sending up officials who refuse on national security grounds to answer questions at hearings.

But the hearing also is about countering any influence Bush's signing statements may have on court decisions regarding the new laws. Courts can be expected to look to the legislature for intent, not the executive, said Sen. John Cornyn, R-Texas., a former state judge.

"There's less here than meets the eye," Cornyn said. "The president is entitled to express his opinion. It's the courts that determine what the law is."

But Specter and his allies maintain that Bush, in practical terms, is doing an end-run around the veto process in the name of national security. In the sixth year of his presidency, Bush has yet to issue a single veto.

Rather than give Congress the opportunity to override a veto with a two-thirds majority in each house, he has issued hundreds of signing statements invoking his right to interpret the law on everything from whistleblower protections to how Congress oversees the USA Patriot Act.

"It means that the administration does not feel bound to enforce many new laws which Congress has passed," said David Golove, a law professor at New York University who specializes in executive power issues. "This raises profound rule of law concerns. Do we have a functioning code of federal laws?"

Signing statements don't carry the force of law, and other presidents have issued them for administrative reasons - such as instructing an agency how to put a certain law into effect. When a president issues such a document, it's usually inserted quietly into the federal record.

Bush's signing statement in March on Congress's renewal of the Patriot Act particularly riled Specter and others who labored for months to craft a compromise between Senate and House versions, and what the White House wanted. Reluctantly, the administration gave in on its objections to new congressional oversight of the way the FBI searches for terrorists.

Bush signed the bill with much flag-waving fanfare. Then he issued a signing statement asserting his right to bypass the oversight provisions in certain circumstances.

Specter isn't sure how much Congress can do check the practice. "We may figure out a way to tie it to the confirmation process or budgetary matters," he said.