Bar association task force urges Congress to push for judicial review of Bush signing statements | 07/21/06
By Elizabeth Weiss Green

George W. Bush did not invent the document known as the presidential signing statement; he inherited it. Franklin Roosevelt, Bill Clinton, and even James Monroe, in 1830, authored the statements, which spell out the president's sometimes controversial interpretation of the very law he's signing. But no president has used signing statements quite like Bush. 

Although the president has not issued more statements in total than any other president, he has challenged more than 750 laws in more than 100 signing statements. And he has used them to, in effect, challenge parts of laws, and challenge them more aggressively, than any president before him. Bush's liberal use of those statements first attracted attention in December 2005, when he signed a torture ban—but then added a statement reserving the right not to enforce the ban, alongside his signature. Since then, Congress has held a hearing to investigate Bush's use of the statements, a bipartisan advocacy group has condemned their use, and Democratic Rep. Barney Frank has introduced a bill that would allow Congress to override content in them that contradicts signed legislation.

Now, U.S. News has learned, an American Bar Association task force is set to suggest even stronger action. In a report to be released Monday, the task force will recommend that Congress pass legislation providing for some sort of judicial review of the signing statements. Some task force members want to simply give Congress the right to sue over the signing statements; other task force members will not characterize what sort of judicial review might ultimately emerge. 

To mount a legal case, a person or group must have been granted "standing," or the right to file a lawsuit. Current law does not grant members of Congress such a right, and recent Supreme Court decisions have denied it in all but very exceptional cases. But Congress could consider bypassing that hurdle by writing a law to give its members the right to sue, a resolution in the task force's report declares, a source familiar with the task force report told U.S. News.

The resolution cannot become official aba policy without approval from the group's legislative body, scheduled to meet in Hawaii next month. The resolution cannot become official aba policy without approval from the group's legislative body, scheduled to meet in Hawaii next month.

There, 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.

The statement Bush attached to the 2005 torture law is a case study: Like many of his statements, first it suggests part of the bill violates the president's constitutional authority, and then it declares that the president will only enforce that bill "in a manner consistent with the Constitution." That signing statement, like many others, also references the so-called unitary executive theory, a lodestar in the Bush administration's case for expanding the power of the presidency. The theory holds that because the president is solely in charge of the executive branch, Congress can't tell him how to enforce its laws, whom to pick for what jobs, or when and how to report to Congress.

Indeed, many of the statements assert the executive branch's ascendancy over the legislative. One statement indicated Bush's intent not to comply with parts of the usa Patriot Act he judged unconstitutional, including requirements to report to Congress about possible violations of search and seizure laws. Others challenge laws intended to support affirmative action, protect whistleblowers, and forbid the use of illegally collected intelligence.

A staple of Bush's signing statements is the climate of war. The 2005 statement on torture argues that limiting the ban helps "protect ... the American people from further terrorist attacks." His statement on the recent Patriot Act reauthorization explains that the administration will withhold requested information—if disclosing the information "could impair foreign relations [or] national security." Administration officials also believe the wartime climate has lent an urgency to its reassertion of executive power. Convinced that a series of events—first Watergate, then Vietnam, and finally Iran-contra—have corroded the power of the presidency, and fearful that only a fully empowered president can defeat terrorism, advocates of the doctrine embrace it as a matter of life or death.

But there's no shortage of folks who disagree. "It's hard to imagine the abandonment of conservative principles in his lawlessness," said Bruce Fein, a member of the task force who voted for Bush twice and served as associate deputy attorney general under President Ronald Reagan.

At a hearing he called in late in late June to investigate the statements, Sen. Arlen Specter interrogated four testifying law professors about one remedy in particular: legislation that would allow Congress or its members to sue the president for his use of statements. Fein has been drafting such legislation ever since.

Fein's plan would begin with Congress passing legislation giving itself authority to sue the president over a statement. Then it would proceed with a lawsuit, focused on a particular statement. Under the plan, that suit would move eventually to the Supreme Court, which would then set precedent in whatever it decided. 

"I think there are a lot of people who are prepared to argue the case against signing statements," said Phillip Cooper, a professor at Portland State University who has studied the statements. "But in order for the attorneys who are very much focused on this subject to do it, they're going to have to find a client who has standing to sue."

The "standing" obstacle could be the most difficult to surpass. In the past, the court has disagreed over Congress's authority to sue in separation of powers cases. A 1997 case — Raines v. Byrd — judged that Congress had standing to sue only in very limited cases.

Fein plans to send the draft of his legislation, which would confer standing, to Specter's office in the next week.

But passing such legislation—and getting it approved in court—will likely be difficult. At the Judiciary Committee hearing, two experts warned Senator Specter against the idea. Christopher Yoo, a law professor at Vanderbilt who has studied presidential power, told Specter that kind of legislation would certainly "face formidable obstacles."

"Standing doctrine is notoriously complicated," agreed Nicholas Rosenkranz, a law professor at Georgetown, "and Congress's ability to construe standing on itself is definitely a sort of vexed question."

But Charles Ogletree, a Harvard Law School professor who is a member of the aba task force, gave different advice. "So you think we could draft a statute, take the president to court?" Specter asked him. "I think not only can you, I think you must," Ogletree replied.

Meanwhile, an advocacy group called the Constitution Project, which issued a report condemning the signing statements in June, is now contemplating further action, including a lawsuit against the Justice Department, which has failed to comply with a Freedom of Information Act request the group filed on June 22, said Virginia Sloan, the group's president. The request would require the Justice Department to report on uses of signing statements since 1977.