Bench Memos

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


There’s plenty else wrong with the ABA report.  Among other things:


1.  In the first paragraph of the report’s introduction, the task force cites with evident approval a news article that asserted that President Bush “has quietly claimed the authority to disobey more than 750 laws enacted since he took office.”  Only in footnote 52 on page 14 do we learn that the article was mistaken:  “It is important to understand that these numbers refer to the number of challenges to provisions of laws rather than to the number of signing statements”—or to the number of laws.  Well, if it’s important to understand that, why prominently repeat the fallacy and bury the correction?


2.  The task force informs us that ABA president Michael Greco “took special care to ensure that the membership of the Task Force represented a variety of diverse views and backgrounds.”  Yes, Greco’s only apparent requirement was that any “diverse” members have already committed themselves to opposition to President Bush’s use of signing statements.  That’s why Bruce Fein was on the task force and Walter Dellinger, President Clinton’s head of OLC, was not.


3.  The report provides a confused and tendentious history of presidential use of signing statements.  For example, two paragraphs after recounting President Jackson’s 1830 signing statement declining to implement the provision of an appropriations bill, the report somehow states that “[n]o signing statements announcing a President’s intent not to comply with a law were issued until 70 years after the Constitution was ratified.”  Equally incoherently, the report contends that President Reagan revolutionized the use of signing statements by treating them “as a strategic weapon in a campaign to influence the way legislation was interpreted by the courts and Executive agencies as well as their more traditional use to preserve Presidential prerogatives.”  The authors seem not to understand that influencing the way legislation was interpreted by executive agencies was a traditional use.


4.  I’m reliably informed that the task force has misrepresented (on pages 13-14) the Clinton Administration’s position on when non-enforcement of a statutory provision is proper.


5.  The report makes originalist arguments—sloppy and misplaced originalist arguments, but originalist arguments nonetheless—in support of its positions, but seems clueless to the implication that the Supreme Court’s interpretations of the Constitution should be judged by the same test of originalism. 


6.  Displaying a ten-year-old’s—okay, a stupid ten-year-old’s—understanding of the legislative process, the task force seems to think that it would be a simple matter for the Administration to convey its views on legislation prior to passage.  (See page 21.) 


7.  When the President faces a massive appropriations bill that includes one indisputably unconstitutional provision (such as a legislative veto that violates Chadha), the task force’s position is that the President’s only constitutional option is to veto the entire bill.  The task force acknowledges (on page 23) “the rare possibility that a President could think it unavoidable to sign legislation containing what he believed to be an unconstitutional provision.”  But it still maintains that it is unacceptable for the President to sign the bill and address the unconstitutional provision in a signing statement.  This position is unworkable, if not crazy.  The situation described by the task force is routine, not rare.  For example, virtually every appropriations bill contains a provision that violates Chadha.  The task force’s position would lead, at best, to an insane game of chicken between the President and Congress and, quite probably, to a collapse of governmental operations.  Is anyone on the task force awake and sentient?

The signatories to this report deserve intense derision for their shoddy and irresponsible work.  They are Miami lawyer Neal R. Sonnett, Mark D. Agrast of the Center for American Progress, former congressman Mickey Edwards, Bruce Fein, Yale Law School dean Harold Hongju Koh, Harvard Law School professor Charles J. Ogletree, George Washington University law school professor Stephen A. Saltzburg, former FBI director William S. Sessions, Stanford law professor Kathleen M. Sullivan, Thomas M. Susman of Ropes & Gray, and former D.C. Circuit judge Patricia M. Wald.  The special adviser to the task force is Alan Rothstein of the Association of the Bar of the City of New York.   

Tags: Whelan


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