Sunday, August 27, 2006

ABA Task Force Slams Presidential Signing Statements

The American Bar Association is the largest association of lawyers in the nation, responsible for everything from law school accreditation to model legal codes, and on July 24, they released a report unrelentingly attacking the use of Presidential “signing statements” to distort the law. At the national meeting on August 8, the ABA officially adopted the report as policy. That’s right: the body of lawyers responsible for setting professional standards across the nation officially discredited the administration’s legal theories.

The signing statement, now notorious thanks to more than 800 uses by Bush II in the course of his five and a half years as President, is a more versatile version of the line-item veto, a practice held by the Supreme Court in 1998 to be an unconstitutional invasion of Congressional lawmaking power. The President is now claiming the power to decline to enforce portions of laws which he deems unconstitutional.

The use of signing statements in this way makes the President a legislative agent, capable of amending laws after they have already passed Congress and been signed into law by the President himself. Minor civics review: making law is Congress’ job, not the President’s. The President gets to sign or veto the bill, and once it becomes law he’s in charge making sure that the law is carried out. Now, though, Bush is claiming that he doesn’t have to carry out unconstitutional laws, even if he just finished signing them with his own hand!

By signing laws and then refusing to enforce them, Bush is not only derelict in his constitutional duty to enforce the law but also stealing the power of Congress, which is responsible for deciding what laws should and shouldn’t be made. What happens if the rest of us, including the entire Congress and the Supreme Court, think he’s wrong in his interpretation? Not jack.

That’s right, the President is not only changing the law passed by Congress, he’s claiming full-fledged and independent authority to declare duly enacted laws to be unconstitutional, completely bypassing the Supreme Court. The President claims the authority to unilaterally suspend enforcement of laws he deems unconstitutional, without any judicial review. Further, he asserts that because these determinations are part of his Constitutional role as President, the Court cannot review them. No wonder he’s only had to use his veto once since he was elected!

The principle that the executive, legislative, and judicial functions should remain separate is one of the cornerstones of American government. In the earliest days of the nation, James Madison said that the accumulation of all three in the hands of a single individual was “the very definition of tyranny.” The President, by using signing statements in this way, has appropriated to the executive branch portions of both Congress’ legislative power and the Supreme Court’s judicial power.

The theory of Presidential power backing the use of signing statements has such far-reaching implications it has been used as the administration’s defense in everything from the Abu Ghraib torture scandal to the current wave of NSA Wiregate trials, but the Task Force is very careful to emphasize that this is not a crusade against George W. Bush. Though he is the worst abuser, Clinton, Bush I, and Reagan all used signing statements in this way.

Several of the Justices on the Supreme Court, including both of Bush’s recent appointees, have been quite willing to give away Congressional power to the executive. Their authoritarian stances may falter, however, when the time comes to support the President at the expense of their own power. This stance will be challenged, likely as part of the Wiregate trials, and with its own neck on the line, the Court might just do the right thing.

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