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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