ABA Releases Task Force Report on Presidential Signing Statements

Bump and Update (TL): The ABA issued its task force report today. The task force was chaired by Neal Sonnett of Miami. You can access the report here. From the ABA press release:

The task force determined that signing statements that signal the president's intent to disregard laws adopted by Congress undermine the separation of powers by depriving Congress of the opportunity to override a veto, and by shutting off policy debate between the two branches of government. According to the task force, they operate as a "line item veto," which the U.S. Supreme Court has ruled unconstitutional.

Noting that the Constitution is silent about presidential signing statements, the task force found that, while several recent presidents have used them, the frequency of signing statements that challenge laws has escalated substantially, and their purpose has changed dramatically, during the Bush Administration.

Original Post
by TChris

When Congress sends President Bush legislation that he doesn't want to obey but can't bring himself to veto, he issues a "signing statement." Some statements purport to limit the law's reach or to change its congressionally intended meaning. The Senate Judiciary Committee is investigating the president's use or abuse of signing statements, and the ABA voted last month to investigate whether Bush's use of signing statements exceeded his constitutional authority.

US News reports that an ABA Task Force will release a report Monday recommending judicial review of the signing statements. While the mechanism for judicial review is unclear, "some task force members want to simply give Congress the right to sue over the signing statements."

[At its annual meeting], the ABA will review four other resolutions, three directed to the president and one to Congress. The first three ask the president not to use signing statements as a kind of shortcut veto. If the president thinks a bill or part of a bill is unconstitutional, one of these resolution declares, he should feel free to say so--but he should do that before he signs it, not after. The other resolution suggests Congress craft legislation to make signing statements more transparent and more accessible. Currently, signing statements are not sent directly to Congress, and they are often ambiguous in their intent. But a law could require the president to write a report explaining exactly how and why he plans not to enforce a law, if he plans not to enforce it, for every signing statement he issues.

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    It seems to mne that Congress should include a clause in every a law that says explicitly: 1. Any presidental signing statements are NOT to be considered part of the legislative history of the act. 2. If the president or any member of the executive branch under his direction shall be found by a court to have violated the act, and if a presidential signing statement exists with respect to that law, then the statement itself may be treated in a future criminal proceeding as prima face evidence of conspiracy and intent to violate the law, and in the case of the president, his oath of office. That should give pause to any president contemplating the use of a signing statement.

    PS, it seems to me that tha ABA's solution makes it worse by giving tacit recognition to the validity of signing statements.

    I am glad that somebody is taking action on this. The whole idea of signing statements is from a Constitutional perspective, and I quite like Libby's suggestion. Not that the vermin who control Congress have any interest in preventing Bush from doing whatever the voices in his dry-drunk consciousness tell him to do.

    Thanks Ba'al. I'm not a lawyer but I do which a lawyer would consider the idea and if it's sound, draft it properly. My idea is that statement 1 (above) would effectively nullify any signing statement. Even if signing statements were constitutional (which I doubt), this would remove the constiturional question. Congress itself would be defining congressional intent. In any event, I don't see how the president could use a signing statement to overrule this clause. But Bush might use signing statements anyway, and then go ahead and violate or disregard the law. So we need #2, and here's my reasoning: Normally, if the executive branch oversteps, disregards, or violates a law, and it is challenged, the court says, "you can't do that," and the executive stops doing it. There is no criminality, just an honest misinterpretaion. Statemnt #2 is designed to make it criminal (or impeachable), if and only if a signing statement had been used. Furthermore, it would come into play ONLY if the courts later found that the law had been abused. It would merely turn the signing statement against the abuser, but calling it what it is: Evidence that the abuse was willful and planned (thus conspiratorial if more than one person involved, which is almost invariably the case). This does not tie the president's hands, if he does not use signing statements. It does not prevent him from using them, and saying anything he feels like saying. But if he says "I will ignore this," and he does in fact ignore it, then the signing statement could be evidence against him in court. I don't see how any of this could amount to a separation of powers issue. Congress would be stating what its intent is (and is not) -- and establishing an automatic penalty for premeditated and willful violation of the law.

    Punchy: One word: Alito. He pretty much invented them. Now he's on the Supreme Court.

    Walter Dellinger and others have noted that "signing statements" are not by definition illegitimate. As is often the case, Bush uses (overuses) them in such a way. The resolutions in this fashion seem a good idea, esp. in respect to their quasi-veto and opaque (upsetting many conservatives with a conscience, h/t John Dean, as well) nature. Executives obviously have to interpret laws ... agencies do this all the time. They cannot simply re-write them. This includes giving them meanings clearly not intended by Congress. An open attempt to do this might actually be a good thing, if Congress was willing to respond as intended. Such has not been the case with this "baby give me another" Congress. As to opening these things to judicial review, that's interesting. Might be tough to figure a way to do it, but I'm game. The real effect of these things are that they are clear statements to executive officials on how they should follow the law. Such officials often act w/o any real oversight, judicial or otherwise. So, a signal saying "don't follow this law" is dangerous. We saw this re treatment of detainees in spades.

    CSPAN2 aired an hour long Q&A with the panel from the ABA. It is profound, heartening and I can't emphasize enough, a MUST SEE. For all the good questions brought up by commenters here, they address them all and some of it is jaw dropping. They even clued the troll in the crowd in. Today, the ABA did its members proud.

    Re: ABA Releases Task Force Report on Presidential (none / 0) (#11)
    by Pete Guither on Mon Jul 24, 2006 at 06:22:04 PM EST
    rogan1313: Yes. This country's structure gives us protection from authoritarian rule. It requires that the branches of government follow the rule of law and balance each other. I would oppose any attempt to give the executive unchecked supremacy whether it was instigated by a Republican or a Democrat. This is a republic, not a monarchy. And we won't be ruled by King George or King Russ or Queen Hillary. And of course, it's even worse that it's a Republican President and a rubber-stamp Republican Congress. It shows an absolute contempt for the rule of law.

    Conservatives once believed in limited government. They once distrusted powerful chief executives, such as FDR and LBJ, who were known for stretching the power of their offices. They used to believe in checks and balances. Sadly, most of them today have abandoned principle and simply defend whatever GW does. Let's hope when the next Democrat is elected president, that liberals now decrying the Bush signing statements and other abuses of power don't suffer a similar loss of principles and defend THEIR guy even when he, say, commits perjuy.

    (In the immortal style of Professor Umbridge) "Hem, hem!" All of these suggestions are wonderful, but they won't matter unless there is a requirement that no language can be inserted into a bill the night before a vote! If Republican stooges keep inserting crap into bills that has never been debated or voted on, even without signing statements Junior can still have his dictatorship and eat it too. So who will be the first to suggest that the notion of waving the reading, or the reading taking place with an empty chamber, must now be a thing of the past? [link deleted, it skewed the site, improper html] Just curious...

    Re: ABA Releases Task Force Report on Presidential (none / 0) (#13)
    by bad Jim on Tue Jul 25, 2006 at 12:46:10 AM EST
    It's just moral relativism after all. One president's blow job is another president's invasion and occupation. Counting the dead is SO not done, it's like Vietnam, or something. Back on topic: Congress really ought to re-assert its constitutional prerogative and declare that presidential signing statements are devoid of import, ceremonial frippery at most.

    Re: ABA Releases Task Force Report on Presidential (none / 0) (#14)
    by roxtar on Tue Jul 25, 2006 at 01:01:41 PM EST
    Arlen Spector gives his impression of a United States Senator by offering a bill regarding the signing statement issue. Of course, he manages to muddy the water by saying something stupid like: ""We will submit legislation to the United States Senate which will...authorize the Congress to undertake judicial review of those signing statements with the view to having the president's acts declared unconstitutional," Judiciary Committee Chairman Arlen Specter, R-Pa., said on the Senate floor. Uh, judicial review, bunkie? if you want the Senate to sit as a court. may I recommend some nice impeachment proceedings?