[Dialogue] Group Objects to Bush's 'Signing Statements'

[Harry Wainwright]

 <http://www.nytimes.com/>  <http://www.nytimes.com/> The New York Times
<http://www.nytimes.com/> 

July 24, 2006

Group Objects to Bush's 'Signing Statements' 

By ROBERT PEAR
<http://topics.nytimes.com/top/reference/timestopics/people/p/robert_pear/in
dex.html?inline=nyt-per> 

WASHINGTON, July 23 - The American Bar Association
<http://topics.nytimes.com/top/reference/timestopics/organizations/a/america
n_bar_association/index.html?inline=nyt-org>  said Sunday that President
Bush was flouting the Constitution and undermining the rule of law by
claiming the power to disregard selected provisions of bills that he signed.

In a comprehensive report, a bipartisan 11-member panel of the bar
association said Mr. Bush had used such "signing statements" far more than
his predecessors, raising constitutional objections to more than 800
provisions in more than 100 laws on the ground that they infringed on his
prerogatives. 

These broad assertions of presidential power amount to a "line-item veto"
and improperly deprive Congress of the opportunity to override the veto, the
panel said.

In signing a statutory ban on torture and other national security laws, Mr.
Bush reserved the right to disregard them.

The bar association panel said the use of signing statements in this way was
"contrary to the rule of law and our constitutional system of separation of
powers." From the dawn of the Republic, it said, presidents have generally
understood that, in the words of George Washington, a president "must
approve all the parts of a bill, or reject it in toto."

If the president deems a bill unconstitutional, he can veto it, the panel
said, but "signing statements should not be a substitute for a presidential
veto."

The panel's report adds momentum to a campaign by scholars and members of
Congress who want to curtail the use of signing statements as a device to
augment presidential power.

At a recent hearing of the Senate Judiciary Committee, the chairman, Arlen
Specter
<http://topics.nytimes.com/top/reference/timestopics/people/s/arlen_specter/
index.html?inline=nyt-per> , Republican of Pennsylvania, said Mr. Bush
seemed to think he could "cherry-pick the provisions he likes and exclude
the ones he doesn't like." Senator Patrick J. Leahy
<http://topics.nytimes.com/top/reference/timestopics/people/l/patrick_j_leah
y/index.html?inline=nyt-per>  of Vermont, the senior Democrat on the
committee, said the signing statements were "a diabolical device" to rewrite
laws enacted by Congress.

Justice Department officials dismiss such criticism as unjustified.
"President Bush's signing statements are indistinguishable from those issued
by past presidents," said Michelle E. Boardman, a deputy assistant attorney
general. "He is exercising a legitimate power in a legitimate way." 

Michael S. Greco, the president of the bar association, who created the
study panel, said its report highlighted a "threat to the Constitution and
to the rule of law."

At its annual meeting next month, in Hawaii, the association will consider
several policy recommendations, including a proposal for judicial review of
signing statements.

The panel said, "Our recommendations are not intended to be, and should not
be viewed as, an attack on President Bush." The panel said it was equally
concerned about the precedents being set for future chief executives.

The panel acknowledged that earlier presidents, including Andrew Jackson,
Ulysses S. Grant, Theodore Roosevelt
<http://topics.nytimes.com/top/reference/timestopics/people/r/theodore_roose
velt/index.html?inline=nyt-per>  and Franklin D. Roosevelt
<http://topics.nytimes.com/top/reference/timestopics/people/r/franklin_delan
o_roosevelt/index.html?inline=nyt-per> , had occasionally asserted the right
to disregard provisions of a law to which they objected. Under Bill Clinton
<http://topics.nytimes.com/top/reference/timestopics/people/c/bill_clinton/i
ndex.html?inline=nyt-per> , the Justice Department told the White House that
the president could "decline to execute unconstitutional statutes."

But the panel said that Mr. Bush had expressed his objections more
forcefully, more often and more systematically, "as a strategic weapon" to
influence federal agencies and judges.

In his first term, the panel said, Mr. Bush raised 505 constitutional
objections to new laws. On 82 occasions, he asserted that he alone could
supervise, direct and control the operations of the executive branch, under
a doctrine known as the "unitary executive." 

Whenever Congress directs the president to furnish information, Mr. Bush
reserves the right to withhold it. When Congress imposes mandates and
requirements on the executive branch, the president often says he will read
them as advisory or "precatory."

When Congress tries to define foreign policy - for example, on Russia,
Syria, North Korea or Sudan - Mr. Bush objects. Even if he agrees with the
policy, he asserts that the Congressional directives "impermissibly
interfere with the president's constitutional authority" to conduct foreign
affairs. 

Whenever Congress prescribes qualifications for presidential appointees, Mr.
Bush complains that this is an intrusion on his power, even if Congress
merely requires that the appointee know about the field for which he will be
responsible. 

When Congress requires outreach or affirmative action for women or members
of certain racial or ethnic groups, the president demurs, saying such
provisions must be carried out "in a manner consistent with the requirements
of equal protection under the Due Process Clause of the Fifth Amendment to
the Constitution."

The panel said Mr. Bush's signing statements often used the same formulaic
language, with "no citation of authority or detailed explanation." It urged
Congress to pass a law requiring the president to "set forth in full the
reasons and legal basis" for any signing statement in which he says he can
disregard or decline to enforce a statute.

In another recommendation, the panel suggested legislation to provide for
judicial review of signing statements. It acknowledged that the Supreme
Court had been reluctant to hear cases filed by members of Congress because
lawmakers generally did not suffer the type of concrete personal injury
needed to create a "case or controversy." But the panel said that "Congress
as an institution or its agents" should have standing to sue when the
president announces he will not enforce parts of a law.

The issue has deep historical roots, the panel said, noting that Parliament
had condemned King James II for nonenforcement of certain laws in the 17th
century. The panel quoted the English Bill of Rights: "The pretended power
of suspending of laws, or the execution of laws, by regal authority, without
consent of Parliament, is illegal."

The panel was headed by Neal R. Sonnett, a criminal defense lawyer in Miami.
Members include former Representative Mickey Edwards, Republican of
Oklahoma; Bruce E. Fein, a Justice Department official in the Reagan
administration; Harold Hongju Koh, the dean of Yale
<http://topics.nytimes.com/top/reference/timestopics/organizations/y/yale_un
iversity/index.html?inline=nyt-org>  Law School; William S. Sessions, a
former director of the Federal Bureau
<http://topics.nytimes.com/top/reference/timestopics/organizations/f/federal
_bureau_of_investigation/index.html?inline=nyt-org>  of Investigation;
Kathleen M. Sullivan, a former dean of Stanford Law School; and Patricia M.
Wald, former chief judge of a federal appeals court. 

Copyright <http://www.nytimes.com/ref/membercenter/help/copyright.html>
2006 The New York Times Company <http://www.nytco.com/>  

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