The American Bar Association says Bush's signing statements are unconstitutional

By Nancy Jane Moore

A "blue ribbon" task force of the American Bar Association said in a report issued July 24 that a president's use of signing statements to assert that he will not follow laws adopted by Congress "undermine[s] the rule of law and our constitutional system of separation of powers."

In an ABA press release, task force Chair Neal Sonnett, a former U.S. Attorney, said:

Abuse of presidential signing statements poses a threat to the rule of law. Whenever actions threaten to weaken our system of checks and balances and the separation of powers, the American Bar Association has a profound responsibility to speak out forcefully to protect those lynchpins of democracy.

The President should use his veto power instead of signing statements, the report reccommends. The 34-page report, available as a pdf file, gives a detailed history of signing statements. It also refers to a website set up by Joyce A. Green that lists every signing statement Bush has issued.

The report also cites an article by Prof. Neil Kinkopf of the Georgia State University College of Law, published on the website of the American Constitution Society, in which he sums up the problem posed by Bush's signing statements:

If the President may dispense with application of laws by concocting a constitutional objection, we will quickly cease to live under the rule of law.

I strongly recommend looking at the list of signing statements and reading both the task force report and Prof. Kinkopf's article.

The Task Force recommended the following actions, which have not yet been approved by the ABA:

RESOLVED, That the American Bar Association opposes, as contrary to the rule of law and our constitutional system of separation of powers, the issuance of presidential signing statements that claim the authority or state the intention to disregard or decline to enforce all or part of a law the President has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress;

FURTHER RESOLVED, That the American Bar Association urges the President, if he believes that any provision of a bill pending before Congress would be unconstitutional if enacted, to communicate such concerns to Congress prior to passage;

FURTHER RESOLVED, That the American Bar Association urges the President to confine any signing statements to his views regarding the meaning, purpose and significance of bills presented by Congress, and if he believes that all or part of a bill is unconstitutional, to veto the bill in accordance with Article I, § 7 of the Constitution of the United States, which directs him to approve or disapprove each bill in its entirety;

FURTHER RESOLVED, That the American Bar Association urges Congress to enact legislation requiring the President promptly to submit to Congress an official copy of all signing statements he issues, and in any instance in which he claims the authority, or states the intention, to disregard or decline to enforce all or part of a law he has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress, to submit to Congress a report setting forth in full the reasons and legal basis for the statement; and further requiring that all such submissions be available in a publicly accessible database; and

FURTHER RESOLVED, That the American Bar Association urges Congress to enact legislation enabling the President, Congress, or other entities or individuals, to seek judicial review, to the extent constitutionally permissible, in any instance in which the President claims the authority, or states the intention, to disregard or decline to enforce all or part of a law he has signed, or interprets such a law in a manner inconsistent with the clear intent of Congress, and urges Congress and the President to support a judicial resolution of the President's claim or interpretation.

In addition to Sonnett, the task force includes: Former FBI Director Williams Sessions; former federal circuit court Judge Patricia Wald; former Rep. Mickey Edwards; law professors Harold Hongju Koh, Charles Ogletree, Stephen A. Saltzburg, and Kathleen Sullivan; and lawyers Bruce Fein, Mark Agrast, and Tom Susman.