Legal Group Faults
Bush for Ignoring
Parts of Bills
By ROBERT PEAR,
NYTimes on the Web, July 24, 2006
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Doug Mills/The New York Times
President
Bush signing the renewal of the USA Patriot Act. He later issued a
"signing statement" saying he would disregard part of the law |
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WASHINGTON, July 23 — The
American Bar Association said Sunday that President Bush was flouting the
Constitution and undermining the rule of law by claiming the power to disregard
selected provisions of bills that he signed.
In a comprehensive report, a bipartisan 11-member panel of the bar association
said Mr. Bush had used such “signing statements” far more than his predecessors,
raising constitutional objections to more than 800 provisions in more than 100
laws on the ground that they infringed on his prerogatives.
These broad assertions of presidential power amount to a “line-item veto” and
improperly deprive Congress of the opportunity to override the veto, the panel
said.
In signing a statutory ban on torture and other national security laws, Mr. Bush
reserved the right to disregard them.
The bar association panel said the use of signing statements in this way was
“contrary to the rule of law and our constitutional system of separation of
powers.” From the dawn of the Republic, it said, presidents have generally
understood that, in the words of George Washington, a president “must approve
all the parts of a bill, or reject it in toot.”
If the president deems a bill unconstitutional, he can veto it, the panel said,
but “signing statements should not be a substitute for a presidential veto.”
The panel’s report adds momentum to a campaign by scholars and members of
Congress who want to curtail the use of signing statements as a device to
augment presidential power.
At a recent hearing of the Senate Judiciary Committee, the chairman, Arlen
Specter, Republican of Pennsylvania, said Mr. Bush seemed to think he could
“cherry-pick the provisions he likes and exclude the ones he doesn’t like.”
Senator Patrick J. Leahy of Vermont, the senior Democrat on the committee, said
the signing statements were “a diabolical device” to rewrite laws enacted by
Congress.
Justice Department officials dismiss such criticism as unjustified.
“President Bush’s signing statements are indistinguishable from those issued by
past presidents,” said Michelle E. Boardman, a deputy assistant attorney
general. “He is exercising a legitimate power in a legitimate way.”
Michael S. Greco, the president of the bar association, who created the study
panel, said its report highlighted a “threat to the Constitution and to the rule
of law.”
At its annual meeting next month, in Hawaii, the association will consider
several policy recommendations, including a proposal for judicial review of
signing statements.
The panel said, “Our recommendations are not intended to be, and should not be
viewed as, an attack on President Bush.” The panel said it was equally
concerned about the precedents being set for future chief executives.
The panel acknowledged that earlier presidents, including Andrew Jackson,
Ulysses S. Grant, Theodore Roosevelt and Franklin D. Roosevelt, had occasionally
asserted the right to disregard provisions of a law to which they objected.
Under Bill Clinton, the Justice Department told the White House that the
president could “decline to execute unconstitutional statutes.”
But the panel said that Mr. Bush had expressed his objections more forcefully,
more often and more systematically, “as a strategic weapon” to influence federal
agencies and judges.
In his first term, the panel said, Mr. Bush raised 505 constitutional objections
to new laws. On 82 occasions, he asserted that he alone could supervise,
direct and control the operations of the executive branch, under a doctrine
known as the “unitary executive.”
Whenever Congress directs the president to furnish information, Mr. Bush
reserves the right to withhold it. When Congress imposes mandates and
requirements on the executive branch, the president often says he will read them
as advisory or “precatory.”
When Congress tries to define foreign policy — for example, on Russia, Syria,
North Korea or Sudan — Mr. Bush objects. Even if he agrees with the
policy, he asserts that the Congressional directives “impermissibly interfere
with the president’s constitutional authority” to conduct foreign affairs.
Whenever Congress prescribes qualifications for presidential appointees, Mr.
Bush complains that this is an intrusion on his power, even if Congress merely
requires that the appointee know about the field for which he will be
responsible.
When Congress requires outreach or affirmative action for women or members of
certain racial or ethnic groups, the president demurs, saying such provisions
must be carried out “in a manner consistent with the requirements of equal
protection under the Due Process Clause of the Fifth Amendment to the
Constitution.”
The panel said Mr. Bush’s signing statements often used the same formulaic
language, with “no citation of authority or detailed explanation.” It
urged Congress to pass a law requiring the president to “set forth in full the
reasons and legal basis” for any signing statement in which he says he can
disregard or decline to enforce a statute.
In another recommendation, the panel suggested legislation to provide for
judicial review of signing statements. It acknowledged that the Supreme
Court had been reluctant to hear cases filed by members of Congress because
lawmakers generally did not suffer the type of concrete personal injury needed
to create a “case or controversy.” But the panel said that “Congress as an
institution or its agents” should have standing to sue when the president
announces he will not enforce parts of a law.
The issue has deep historical roots, the panel said, noting that Parliament had
condemned King James II for nonenforcement of certain laws in the 17th century.
The panel quoted the English Bill of Rights: “The pretended power of
suspending of laws, or the execution of laws, by regal authority, without
consent of Parliament, is illegal.”
The panel was headed by Neal R. Sonnett, a criminal defense lawyer in Miami.
Members include former Representative Mickey Edwards, Republican of Oklahoma;
Bruce E. Fein, a Justice Department official in the Reagan administration;
Harold Hongju Koh, the dean of Yale Law School; William S. Sessions, a former
director of the Federal Bureau of Investigation; Kathleen M. Sullivan, a former
dean of Stanford Law School; and Patricia M. Wald, former chief judge of a
federal appeals court.
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