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American Bar Association chides Bush on bypassing laws
ABA group cites limits to power

Boston Globe | July 24, 2006
By Charlie Savage

WASHINGTON -- President Bush should stop issuing statements claiming the power to bypass parts of laws he has signed, an American Bar Association task force has unanimously concluded in a strongly worded 32-page report that is scheduled to be released today.

The bipartisan panel of legal specialists includes a former FBI director, a former federal appeals court chief judge, former Republican officials, and leading scholars.

The panel said presidents do not have the authority to declare that sections of the bills they sign are unconstitutional, and that they thus need not be enforced as Congress wrote them.

Bush has used these so-called signing statements to challenge more than 750 laws that have been enacted since he took office, more than all previous presidents combined.

``The president's constitutional duty is to enforce laws he has signed into being, unless and until they are held unconstitutional by the Supreme Court," the report said. ``The Constitution is not what the president says it is."

The task force will present its findings next month in Hawaii at a meeting of the bar group's 550-member House of Delegates. The delegates will vote on whether to adopt the recommendations.

The task force chairman and a former federal prosecutor, Neal Sonnett , said he hoped the House of Delegates would back the panel's call to roll back the use of presidential signing statements.

``The recommendations that we make are an effort to correct practices that, if they continue, threaten to throw this country into a constitutional crisis," Sonnett said. ``Most of the members of the House of Delegates are very concerned about upholding the rule of law. That is, after all, the mission of the ABA. So I'm hopeful that we will get a resounding show of support."

The ABA's board of governors created the task force in June, at the request of the bar group's president, Michael Greco, a Boston lawyer. The move followed the publication of a series of articles in The Boston Globe about Bush's expanded use of signing statements.

Citing an expansive theory of executive power that is not supported by most legal scholars, the administration has declared that the Constitution puts Bush beyond the reach of Congress in military matters and executive branch operations.

The laws Bush has challenged include a ban on torturing detainees, oversight provisions in the USA Patriot Act, restrictions against using US troops in combat against rebels in Colombia, and numerous requirements to provide information to Congress, among many others. At the same time, Bush has vetoed just one bill since he took office.

In its report, the task force acknowledged that its work had been prompted by ``the number and nature of the current president's signing statements," but it emphasized that its criticism was ``not intended to be, and should not be viewed as, an attack on President George W. Bush."

The panel noted that especially since the 1980s, previous presidents of both parties had also used signing statements to challenge laws, albeit less frequently.

President Clinton, for example, used signing statements to challenge 140 laws over his eight years in office. The task force characterized all such statements as inappropriate.

``Our recommendations . . . are directed not just at the sitting president, but at all chief executives who will follow him, and they are intended to underscore the importance of the doctrine of separation of powers," the panel wrote.

Last month at a Senate Judiciary Committee hearing, an administration lawyer, Michelle Boardman, defended the use of presidential signing statements. Boardman argued that the president was showing respect to Congress by using signing statements, because a veto would take out the entire bill.

But the task force said a president does not have that option. The Constitution requires the president either to veto a bill in its entirety -- giving Congress a chance to override his decision -- or to sign the bill and enforce all its components as Congress wrote them, they said.

``A line-item veto is not a constitutionally permissible alternative, even when the president believes that some provisions of a bill are unconstitutional. . . . A president could easily contrive a constitutional excuse to decline enforcement of any law he deplored, and transform his qualified veto into a monarch-like absolute veto," the panel wrote.

At the hearing last month, Boardman also argued that presidents must use signing statements, because it is often impractical to veto an entire bill over small constitutional problems if the bill contains other measures that the executive branch deems are urgently needed.

The ABA task force, however, said that the Constitution's limits on presidential power trump such pragmatic considerations.

``The Founding Fathers contemplated bills with both attractive and unattractive features packaged in one bill with heterogeneous provisions," the panel wrote. ``The president nonetheless was expected to veto `urgent' bills that he believed were unconstitutional in part.

``If the urgency were genuine, Congress could either delete the offending provisions or override the president," the panel wrote in its report.

If Congress and the White House cannot reach an agreement on the signing statements, the task force added, both sides should take steps to put the issue before a court for review.

The report urged Congress to pass legislation giving it standing to sue a president over such signing statements.

The idea of legislation allowing Congress to sue the White House over signing statements has also been floated by the Senate Judiciary Committee chairman, Arlen Specter, Republican of Pennsylvania, who has accused Bush of ``a very blatant encroachment" on the constitutional prerogative of Congress to write laws.

The ABA task force's members included several conservative Republican figures, including Mickey Edwards, a former member of Congress from Oklahoma; Bruce Fein, a Justice Department official under President Reagan; and William S. Sessions, a retired federal judge who was the director of the FBI under both Reagan and President George H.W. Bush.

Other members included Patricia Wald, the retired chief judge of the US Court of Appeals for the District of Columbia; Harold Koh, dean of the Yale Law School; Kathleen Sullivan, former dean of the Stanford Law School; Charles Ogletree, a Harvard law professor; Stephen Saltzburg, a George Washington University Law School professor; Mark Agrast, a former legislative counsel for Representative William D. Delahunt , Democrat of Quincy; and Thomas Susman, who worked in the Justice Department under both Presidents Johnson and Nixon, and who was later counsel to the Senate Judiciary Committee.

In an interview, Edwards said the findings should be understood as rising above the politics of the moment. ``It's not about Bush; it's about what should be the responsibility of a president," Edwards said. ``We are saying that the president of the United States has an obligation to follow the Constitution and exercise only the authority the Constitution gives him. That's a central tenet of American conservatism -- to constrain the centralization of power."



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