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ABA Report on Presidential Signing Statements: A Critique (Part III)


Another remarkable aspect of the ABA task force’s report on presidential signing statements (in addition to what I address here and here) is its proposal for legislation to provide for judicial review of signing statements.  The task force’s actual resolution salvages this proposal by limiting it “to the extent constitutionally permissible” and thus probably rendering it null.  But the task force’s discussion (on pages 25-26) is noteworthy in several respects:


1.  Reflecting its embrace of judicial supremacy, the task force finds it “frustrat[ing]” that

“[c]urrent[]” conceptions of Article III standing limit the availability of judicial review.  But these conceptions are longstanding and reflect the fundamental separation-of-powers principles that the task force pretends to be defending but in fact rejects.  Ditto for the doctrines of “political question” and prudential standing that the task force urges Congress and the President not to invoke. 


2.  The task force states that the unavailability of judicial review of signing statements means that the President “becomes the final judge of his own constitutional powers.”  That is patently wrong.  If and when the executive branch implements the President’s constitutional positions in a manner that produces cognizable injury, judicial review will ordinarily be available. 


3.  The particulars of the task force’s proposal are half-baked at best and reflect the same confusion that pervades the report.


4.  Perhaps most curiously, the task force recognizes that the Supreme Court might rule such legislation unconstitutional but concludes that the legislation “would still have been worth the undertaking, since it would demonstrate an eagerness to play by constitutional rules short of impeachment, and the use of signing statements in the manner opposed by our recommendations presents a critically important separation of powers issue.”  Set aside the ridiculous backhanded suggestion that impeachment might be an appropriate response to the long-established practice of signing statements, and set aside also the task force’s separation-of-powers confusion.  Evidently the task force thinks that President Bush should sign into law a proposal that he would reasonably believe is unconstitutional, even though the task force’s core resolution is that the President should never sign into law any bill that has a provision that he believes to be unconstitutional. 


I repeat what I said before:  the members of this ABA task force deserve intense derision for their shoddy and foolish report.


Tags: Whelan


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