Lawyers Challenge Bush

For millions of Americans, liberal and conservative, the battles over Bush Administration policies, from the war in Iraq to the shape of the federal tax code, revolve around questions of political ideology or partisan preferences. For many others, the central issue is not the Administration's policies but its competence. For the American Bar Association, and for some other organizations as well, including the Washington-based Constitution Project, the matter is much simpler: It's a question of legality.

It was this concern--whether or not the President of the United States was involved in a systematic attempt to evade the law--that prompted both the ABA and the Constitution Project to appoint special bipartisan task forces (I'm a member of both) to look into the extraordinary ways in which the President has turned to the use of presidential signing statements not only to signal his disagreement with Congressional actions but to make clear his intent to disregard them.

Signing statements are not new; in recent history Presidents Reagan, George H.W. Bush and Clinton also used them. Laws often end up in court, where federal judges may examine their constitutionality or attempt to resolve ambiguities as to intent. Historically, courts have looked to legislative language and Congressional debate to unravel such uncertainties; by issuing their own statements of concern or interpretation while signing a bill into law, Presidents attempt to inject their views into the judicial decision-making process. As President Clinton once argued, Presidents are not irrelevant, and it is not surprising that they would want to have their perspectives considered.

But there are at least two causes for concern about the way George W. Bush has used this presidential tool. One is the unprecedented frequency with which he has issued such statements; in less than six years he has issued more signing statements (over 750 by some estimates) than all other Presidents in history combined. This is a President who routinely challenges the decisions even of a Congress dominated by his own party.

But more worrisome is the way he uses such statements. Observers have noted with some surprise that a President who often seems preternaturally combative has nonetheless acquiesced routinely to a Congress with which he often clearly disagrees. This perception of a strangely compliant President was fed by the seemingly inexplicable fact that Bush had not issued a single veto in all the years of his presidency. It turns out that in this particular case, conspiracy theorists may have a point: The President had chosen not to veto legislation with which he disagreed--thus giving Congress a chance to override his veto--but simply to assert his right to ignore the law, whether a domestic issue or a prohibition against torturing prisoners of war. Coupled with his insistence on a "unitary executive"--the idea that Congress cannot, by law, tell an executive branch agency what it may or may not do--Bush's signing statements amount to more than an expression of opinion designed to influence the courts; they are a de facto instruction to federal agencies to disregard Congressional mandate.

Although the ABA task force in particular has a very limited mandate--to propose a policy position solely in regard to the use of signing statements--the issue arises against a disturbing backdrop that includes not only the gathering of telephone records but the deliberate disregard of a law prohibiting electronic surveillance of US citizens without a court-ordered warrant. Thus the real issue at stake is not one of presidential policy but of the continued viability of the separation of powers, the central tenet in America's system of constrained government. The Founders deliberately placed lawmaking power in the hands of Congress precisely because it, and especially the House of Representatives, was the most democratic branch of government--most representative of and most answerable to the American people. The concentration of power in the hands of a single chief executive, whether President or King, is an outcome neither the left nor the right should welcome. But with a President who assumes that all important decisions are his to make, and a Congress whose members routinely act as though they are part of the White House staff, that may well be where we are headed. No wonder the ABA, the Constitution Project and an increasing number of constitutional scholars are so concerned.

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