No ABA Sign-Off For White House 'Statements'

The American Bar Association this morning is set to release a report critical of the Bush Administration's penchant for attaching executive-branch "signing statements" to legislation in order to memorialize any White House reservations about the constitutionality of the new laws. No surprise there, the ABA has for years now been highly critical of many of the legal positions the Administration has taken in the name of fighting terrorism. And don't be surprised when the White House either completely ignores the ABA's message or downplays it into oblivion. Just a bunch of pointy-headed liberal lawyers, the feds will say.

Yes and no to that charge. The task force that came up with the 32-page report is a mix of liberals and conservatives and it includes conservative legal scholar Bruce Fein, who was a darling of the right during the Reagan Administration but who know often sides with civil libertarians against the White House. And coming from the left or the right the charge that the signing statements are a presidential power-play is no frivolous argument. There is no dispute that the Bush Administration has used signing statements as a matter of routine. By one account, there have been hundreds more signing statements by this White House than all of its predecessors combined. That's what has the ABA concerned.

On the other hand, aside from the politics of it all, the fact is that noted legal minds are all over the board when it comes to the propriety of signing statements the way they have been used by the current Administration. For example, making the rounds on conservative blogs is a 1993 memo by then Justice Department attorney Walter Dellinger who offered a defense of signing statements for his President, Bill Clinton. I'd love to collar Dellinger now and get his input into whether he believes the Bush Administration has gone too far. And I'd love to see a comprehensive study on how the signing statements affect the enforcement of the laws to which they are attached. Law students out there-- get crackin'

By Andrew Cohen |  July 24, 2006; 9:00 AM ET
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Mr. Cohen,
I want to comment regarding the marriage ruling column. Brown v. Board was a proper decision because of the Civil War amendments covering racial discrimination. There is no such coverage for homosexual rights. I think states will begin to grant more privileges to gay partners, but as with most major change, it will take a while. But the changes will carry the ligitimacy of representative decisions and not judicial fiat.

Posted by: Jim | July 24, 2006 12:12 PM

Hi Andrew,

Back at the end of June, right after Justice Department official Michelle E. Boardman and White House press secretary Tony Snow repeatedly cited Dellinger, he wrote on Slate: "The problem is not the president's assertion that he can ignore laws he believes to be unconstitutional. The problem is what laws he believes to be unconstitutional....

"The problem has been what those presidential signing statements say - even worse, what the legal opinions intended to be secret assert. They claim that laws whose validity has never been seriously questioned are unconstitutional based on extravagant and untenable theories of presidential power."

Here's the URL: http://www.slate.com/id/2144476/entry/2144829/

Posted by: Dan Froomkin | July 24, 2006 05:13 PM

Mr. Cohen:

First, there's an editorial error in the article: In the 3rd line of the 2nd paragraph, the copy reads "...Bruce Fein, who was a darling of the right during the Reagan Administration but who know often sides with civil libertarians against the White House." It should read "...who NOW often sides with..."
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On the merits: As a minor constitutional scholar, I have been heartsick for years at the total ignorance of good, highly educated people (to say nothing of those less fortunate) concerning basic principles of our Constitution, and the foundations of our now shaky democracy. I'd bet there aren't more than one in ten thousand people with college degrees in the US who can cite the one passage in the body of the Constitution which is explicitly exempt from future amendment ("...no --------- ---- shall EVER be required..."). Readers - please go find it and be shocked when you do!

In ordinary times, constitutional savvy is not critical. We may often trust that enough of our leaders, however power hungry of partly warped, respect our foundings sufficiently so as to at least acknowledge our built-in divisions of power and checks and balances. But now we are truly living with a government of men and not of laws - founding principles to the obverse be damned.

So even if you have a doctorate in physics or sociology please, please read the actual Constitution and amendments and then browse through Madison's notes from the constitutional convention in the summer of 1787.

Then perhaps you'll understand why even Sandra Day O'Connor recently made reference to our sliding toward dictatorship (Google that!! You'll be as shocked at her Georgetown Law School speech as you will be that NPR and MSNBC were the ONLY media outlets in the US to report the story when it occurred!!).

No, it isn't just liberal pointy-headed lawyers who are upset with our present and clearly dangerous state of government.

Posted by: Quintus | July 24, 2006 05:32 PM

ABA report: Journalists like Mr Savage of the Boston Globe, not sleep-deprived law students, need to do the right thing by this one: "President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution." This is serious and completely new stuff--usurpation of the judiciary function--in line with a pattern of the sovereign being above the law--& your take that it is to be judged by how it plays out (after how many bodies are thrown in front of the bulldozer to stop it)completely misses the point. Stop, smell the roses, and while you're at it, read the report.

Posted by: Mike | July 24, 2006 06:21 PM

The ABA has outlined the specific issue defining the Signing Statement complaint. Congress makes law, both Houses approve it as a Bill which goes to the President for signature into law, OR veto. Not for modification to suit the Executive. Veto, and back to Congress for modification, OR override. It's clear where the Constitution places the power and it's clear this President would like to, in fact intends to, in fact is appropriating it.
Despite the fact of precedence at the hands of earlier Presidents, Mr. Bush has put quite a point on the stick, and now many people can see it aimed at their eyes. So thank you Mr. President Sir. We are aroused.

Posted by: MKL | July 24, 2006 08:18 PM

I think Mr. Cohen and the Washington Post have gone to sleep on yet another important part of the erosion of our Democracy. President Bush's signing statements are very different in both the number and the content of the statements. I've heard arguments that issuing the signing statements does not mean this administration does not intend to follow the law. Then why issue them? These statements are not commentary on the legislation. They are the forerunners of the President doing as he pleases. And if this administration cherry picks the new legislation they will follow, doesn't that suggest they may be doing the same with existing laws?
On this issue and many others, the Post has turned into the President's lapdog. The very shortness of the column (on the signing statements) shows their reluctance to do any investigative work. Where are Woodward and Bernstein of today? Even Woodward isn't Woodward anymore. The American people are out here on their own! There are dwindling legislative and judiciary branches and a loss of the "fourth" branch of government. Who will help protect our Constitution and therefore our Democracy?

Posted by: Gail | July 25, 2006 11:01 AM

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