Bench Memos

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More on the ABA’s Signing-Statements Folly


I am remiss in calling attention to this interesting, thorough and very long post on the Georgetown Law Faculty Blog by Walter Dellinger and seven other Clinton Administration veterans of the Office of Legal Counsel, six of whom are in academia.  The post is appropriately critical of the ABA task force’s report.  E.g.:  “[T]he ABA Report gets it exactly backwards.  The signing statement is a good thing:  a manifestation of the Executive’s intentions that helps us to understand the heart of the problem.”   

The post also contains a lot of criticism of the Bush Administration’s practices on the non-enforcement of provisions of law regarded as unconstitutional, including some specific criticism of the substance of signing statements.  Whether or not one agrees with the post, it responsibly identifies areas where meaningful discussion and debate could begin to take place. 

This article by Charlie Savage in the Boston Globe, which discusses the blog post by Dellinger et al., shows that the ABA is still in deep denial.  ABA president Michael Greco, showing a complete lack of awareness of the critiques leveled against the task force’s report, continues his record of never having made an intelligent comment on the subject.  More amusingly, task force member Charles Ogletree, a professor at Harvard Law School, attributes the criticism to “people closely connected to executive branch careers”—as though Walter Dellinger, who has been a longtime champion of congressional power versus the executive, had his judgment biased rather than informed by his service in the executive branch.  Ogletree could learn a bit by talking with his colleague David Barron, who is one of the signatories to the Dellinger post.   

Ogletree also claims that the Dellinger group “want[s] us to harshly criticize Bush” but that the ABA task force “said let’s raise this to a higher level of debate.”  It is true that the task force’s legal position is formally nonpartisan:  it applies equally stupidly to Democratic and Republican presidents.  But, as Greco’s vituperative statements have shown, the timing of the task force and its stacked composition reflect deep antipathy to President Bush, and Greco is intent on using the task force’s report as a weapon against this Administration.  (You can be sure that it will disappear in the next Democratic administration.)  The “higher level of debate” line is too funny to merit a response. 

A couple other points:  Savage’s article repeats his claim, which even the ABA task force has rejected, that “Bush has used [signing] statements to challenge more than 800 laws.”  It would appear that Savage means “provisions of laws” when he says “laws”.  And Savage reduces my comprehensive critique of the ABA task force’s report (here, here, here, and in my Weekly Standard essay linked here) to a “swipe”. 

By the way, I hear that the Administrative Law section of the ABA is likely to express its disagreement with the task force’s report but that the House of Delegates will surely rubber-stamp the report. 

Tags: Whelan


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