WASHINGTON — A panel of the American Bar Association struck a blow for democracy and the rule of law July 23 when it came out strongly against President George W. Bush’s use of “signing statements” to nullify laws passed by Congress, legal experts said this week.
These signing statements, issued when Bush signs a statute into law, “assert Bush’s authority to disregard or decline to enforce laws adopted by Congress,” an ABA blue-ribbon task force report states. These sweeping claims of unilateral presidential power “undermine the rule of law and our constitutional system of separation of powers,” the report adds.
Michael S. Greco, president of the ABA, said the task force’s creation was prompted by a news article in the Boston Globe that exposed Bush’s practice of using signing statements to nullify part or all of a law he disagrees with instead of vetoing it. Bush’s veto last week of the stem cell research bill was the first of his presidency.
“This report raises serious concerns crucial to the survival of our democracy,” Greco said. “If left unchecked, the president’s practice does grave harm to the separation of powers doctrine and the system of checks and balances that have sustained our democracy for more than two centuries.”
He added, “Immediate action is required to address this threat to the Constitution and to the rule of law in our country.”
The report will be submitted to the ABA’s upcoming convention in Hawaii.
Bush has used signing statements at least 800 times, more than all his predecessors combined. From the dawn of the Republic, presidents have understood, in the words of George Washington, a president must “approve all the parts of a bill or reject it” with a veto. However, in the words of Senate Judiciary Chairman Arlen Specter (R-Pa.), Bush seems to think he can “cherry-pick the provisions he likes and exclude the ones he doesn’t like.”
The report is especially noteworthy because the task force includes several conservatives, including Bruce Fein, a Justice Department official in the Reagan administration, and former FBI Director William Sessions. It was chaired by Miami lawyer Neal Sonnett, who said, “Abuse of presidential signing statements poses a threat to the rule of law.”
Sonnett continued, “The American Bar Association has a profound responsibility to speak out forcefully to protect these linchpins of democracy.”
Marjorie Cohn, president-elect of the National Lawyers Guild, told the World in an e-mail message that two of Bush’s signing statements stand out as especially dangerous: “his statements of intent not to follow the McCain ‘anti-torture’ amendment” and a signing statement in which he vowed “not to report to Congress the use of the Patriot Act to secretly search homes and seize private papers.” Sen. John McCain’s anti-torture amendment was approved by a 90-9 Senate vote, yet Bush proclaimed in the signing statement that he would “construe” the law to permit him to continue to authorize torture in violation of U.S. and international law.
Cohn added, “Bush’s use of signing statements represents a potent threat to the doctrine of separation of powers.” She pointed out that even Sen. Specter, a Bush loyalist, favors legislation requiring the president to submit all signing statements to Congress for review and also to make signing statements subject to judicial review. “This would represent a clear break with Specter’s prior tendencies to submit to Bush’s will,” she wrote.
Anthony Romero, executive director of the American Civil Liberties Union, said the ACLU opposed Bush’s nomination of Judge Samuel Alito to the Supreme Court because Alito was an adherent of the so-called “unitary executive theory” and urged an “aggressive expansion” of presidential powers, including “increased use of presidential signing statements … in order to trump congressional intent and legislative history.”
Alito recommended use of signing statements, in his own words, “to increase the power of the executive to shape the law.”
Romero said, “This claim of sweeping presidential power is the basis of Bush’s claim that he can authorize torture, the jailing of U.S. citizens as ‘enemy combatants’ without charging them.”
Comments