Bar None

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The New York Sun

The program for next month’s annual meeting of the American Bar Association runs to 235 pages, so you’d think they’d have something better to do with their time than natter on about presidential signing statements. Yet they are preparing to do just that, with the release of a report laying the groundwork for delegates to condemn the practice when they convene in Honolulu. It’s too bad they’re obsessing over an entirely constitutional and increasingly important legal device.

The ABA is joining the caterwauling over President Bush’s use of signing statements, documents sometimes issued when a president signs a bill into law. Such a statement can offer a substantive statement of the president’s interpretation of a vague or questionable provision in a bill. President George W. Bush has used them to sidestep congressional attempts to make executive branch officials report to lawmakers on implementation of various parts of the Patriot Act, limit use of physically coercive interrogation, and protect supposed whistleblowers in the Department of Energy. Since his first inauguration, Mr. Bush has used statements to challenge 800 distinct provisions in laws he’s signed, an unprecedentedly large number.

The president’s critics on Capitol Hill, at the bar association, and in the left-wing press see an abuse of power. Mr. Bush, in our view, is just taking a long overdue step to rein in abuses of congressional power. As icing on the cake, Mr. Bush is also reclaiming from the courts some of the power to interpret the Constitution, a task too important to be entrusted to only one branch.


Signing statements have a long history. President Monroe signed a bill mandating a reduction in the size of the armed forces but used a signing statement to eschew a congressional attempt to dictate the method for selecting officers on the theory that such a provision was an unconstitutional interference with his rights as commander in chief. Presidents Grant and Carter used the statements to rebuff congressional attempts to force them to close certain consulates and embassies.

The statements offer several benefits over any alternative action, a scholar at the Heritage Foundation, Todd Gaziano, tells us. Mr. Gaziano has written some of them himself, including for the Clinton administration. If the president believes only a few provisions pose problems in a bill that stretches to hundreds of pages, he may use a signing statement to interpret the problem passages in an acceptable way, sparing Congress the trouble of having to reconsider the entire bill after a veto. If a provision can be interpreted in either of two ways and one of the interpretations would make the section unconstitutional, the president can avert a future court challenge by stating his intention to follow the constitutional interpretation when enforcing the law.

Signing statements also can play a key role in the legislative process by explaining how the executive will interpret any unclear sections of a law. By doing so, the president can spare everyone the confusion of waiting for government lawyers to settle on a single interpretation. Since the executive enforces the laws and most feature some vague spots, it’s naïve for Mr. Bush’s critics to suggest the president ought to play a minimal role in the legislative process, either signing or vetoing. Signing statements clarify the how the president will interpret a law for purposes of enforcing it.


Use of the statements has been increasing ever since the 1980s. President Reagan issued 71 constitutional challenges in his eight years, President George H.W. Bush issued 146 in his four years, and President Clinton issued 105 in his two terms. If President Bush is using the statements even more, that’s because a lot has changed since those administrations. Congress has followed a long-term trend of interpreting its own authority ever more expansively, while the war on terror has pushed the country into uncharted constitutional waters where it isn’t always clear to some, especially on the Hill, where legislative power ends and executive authority begins.

So who will referee these disputes? The courts won’t necessarily do the best job, as is all too clear from the muddle of the Hamdan ruling on trials for terror suspects.The president’s detractors have pointed up the Dellinger memorandum, a document prepared in 1993 offering guidance to President Clinton on signing statements. “As a general matter,” the memo reads, “if the President believes that the Court would sustain a particular provision as constitutional, the President should execute the statute, notwithstanding his own beliefs about the constitutional issue.”

That seems like an abdication of presidential responsibility today, even though signing statements are no substitute for the most basic assertion of the president’s views, the veto. Mr. Bush has used the veto only once, less than any president save Harrison (who died after but a month in office). President Bush’s use of signing statements may demonstrate his understanding that the courts are not perfect constitutional arbiters any more than either other branch and that in the war on terror it can be dangerous to wait for courts to resolve such disputes. Both points are lost on the ABA, which favors even more litigation in its proposal to allow Congress to sue the president over signing statements.But in the constant struggle between the executive and the legislature, a president whose party controls both houses is in a position to do more than Mr. Bush has done to date.

The New York Sun

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