Bench Memos

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More ABA Partisanship


The Boston Globe reports that the “board of governors of the American Bar Association voted unanimously [on Saturday] to investigate whether President Bush has exceeded his constitutional authority in reserving the right to ignore more than 750 laws that have been enacted since he took office.”  ABA president Michael Greco, whom I previously described (in an evident error of understatement) as a “zealous liberal,” proposed the task force.  In Greco’s words, “the president’s practice of attaching signing statements to laws squarely presents a constitutional issue about the separation of powers among the three branches.”


Three comments:  First, Greco has stacked the composition of the task force with fervent liberals or lefties—Harold Koh, Kathleen Sullivan, Charles Ogletree, Patricia Wald—and included a handful of Republicans who have already made clear that they share Greco’s concerns.  One of these Republicans, for example, is the ubiquitous Bruce Fein.  I find the idiosyncratic Fein provocative and interesting, but it’s rather striking that the Left, which previously dismissed him as a kook, now regards him as a sage (or as a useful kook?).  This task force is not constituted to give serious consideration to the Administration’s position.

Second, Greco’s statement of the issue shows that he doesn’t know up from down.  One sensible comment in the article is provided by task force member Stephen A. Saltzburg, who “said he did not believe that signing statements were unconstitutional”:  “‘The president can say anything he wants when he signs a bill,’ Saltzburg said.”  (Saltzburg does express concerns about the distinct question whether the substance of President Bush’s signing statements reflects “respect for the Constitution and for the notion of checks and balances.”)

Third, on the merits:  As a general rule, signing statements are an appropriate exercise of the President’s constitutional duty to “take Care that the Laws be faithfully executed.”  Consistent with the President’s oath of office to “preserve, protect, and defend the Constitution,” that duty has long been understood to require that the President distinguish between those provisions of enacted law that are constitutional and those that aren’t.  The important question, neither limited to the arena of signing statements nor most usefully examined there, is whether a President is exercising that constitutional judgment responsibly.  That question in turn raises interesting issues about the weight that the President should accord existing case law versus his own Administration’s best legal judgments about what the Constitution means. 

Tags: Whelan


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