THE LIMITS OF PRESIDENTIAL POWER

By William Fisher

President George W. Bush's widespread use of so-called "signing statements" to unilaterally decide which parts of acts passed by Congress he will enforce continues to face mounting opposition as the practice came under sharp criticism from a blue-ribbon task force assembled by the nation's premier legal organization and a powerful member of the president's own party announced he will soon introduce legislation authorizing Congress to sue him in Federal Court.

"We will submit legislation to the United States Senate which will...authorize the Congress to undertake judicial review of those signing statements with the view to having the president's acts declared unconstitutional," said Senator Arlen Specter, a Pennsylvania Republican and chairman of the powerful Senate Judiciary Committee.

Specter's announcement on the Senate floor coincided with the conclusion of a task force organized by the American Bar Association (ABA) that by attaching conditions to legislation, the president has sidestepped his constitutional duty to either sign a bill, veto it, or take no action.

In issuing a signing statement, "a sitting president reserves the right to revise, interpret or disregard laws on grounds of national security or the "inherent powers" the Constitution grants the chief executive in wartime. The statements are customarily issued - usually with little or no public disclosure -- immediately after a president has signed into law an act passed by Congress.

Specter's committee estimates the president has challenged some 750 statutes passed by Congress. The ABA estimates Bush has issued signing statements on more than 800 statutes, more than the combined number issued by all presidents in U.S. history.

But some critics say the lax oversight exercised by Congress is equally responsible for the breakdown in the separation of powers between the three co-equal branches of government. Brian J. Foley, a professor at Florida Coastal School of Law, told us, "Let's hope that Senator Specter's move represents an awakening Congress. Our legislators have been asleep on the job while the Executive has expanded its powers -- they are in a sense equally culpable for the reckless policies sent forth from Washington."

And Peter M. Shane, a professor at the University of Ohio Law School and a specialist in separation of powers, told us, "Because President Bush entertains the most radically expansive theory of presidential power in history, it is no accident that he has identified an unprecedented number of occasions on which he imagines Congress is threatening his prerogatives. Many of these are simply instances of routine congressional oversight. It is as if his copy of the Constitution somehow omitted the clause that explicitly authorizes Congress to issue laws that are 'necessary and proper' for carrying into execution even the constitutional authorities of the executive branch." Prof. Shane is co-author with Harold H. Bruff of "Separation of Powers Law: Cases and Materials" (Carolina Academic Press, 2005).

ABA President Michael Greco characterized signing statements as "non-vetoes" and charged that the practice "hamstrings Congress because Congress cannot respond to a signing statement." The practice, he added, "is harming the separation of powers."

Under the US Constitution, Congress alone is authorized to enact laws and the president is mandated to enforce them without change or modification. The current signing statement controversy erupted into public and congressional consciousness earlier this tear after Congress passed an extension of the USA Patriot Act and another measure forbidding the US from inflicting cruel, inhuman and degrading treatment to people detained in the "war on terror."

President Bush signed the acts into law, but then issued statements saying in effect he would not enforce the laws when doing so might jeopardize national security.

Signing statements are not new, having been used by many previous presidents. But past use has typically been for purposes such as congratulating congress on enacting measures or instructing agencies on how to execute new laws.

While the White House maintains that President Bush's signing statements are not intended to allow the administration to ignore the law, many of his statements declare his belief that parts of bills he is signing are unconstitutional.

The ABA panel described the practice as "a serious threat to the Constitution's system of checks and balances," and urged Congress to pass legislation permitting court review of such statements.

"The president is indicating that he will not either enforce part or the entirety of congressional bills," said ABA president Michael S. Greco, a Massachusetts attorney. "We will be close to a constitutional crisis if this issue, the president's use of signing statements, is left unchecked."

The 10-member ABA panel, chaired by prominent Miami attorney Neil Sonnett, includes at least three well-known conservatives or Republicans: former congressman Mickey Edwards, a Republican from Oklahoma, former director of the Federal Bureau of Investigation (FBI) William S. Sessions, and a former Justice Department lawyer, Bruce Fein, who was appointed by Republican President Ronald Reagan. It also includes former appellate judge Patricia M. Wald, former Stanford Law School dean Kathleen M. Sullivan and Harvard law professor Charles J. Ogletree Jr. Their report will be considered by the full ABA next month.

Task Force members contend that President Bush has changed the nature of signing statements. It said that many of his objections are based on the idea that congressional checks on the presidential power are limited.

They said that if the president has constitutional problems with a bill, he should make his concern known to Congress before it enacts the legislation. Signing statements should not be a substitute for vetoing bills the president considers unconstitutional, the panel said.

"The President's constitutional duty is to enforce laws he has signed into being unless and until they are held unconstitutional by the Supreme Court or a subordinate tribunal," panel members wrote. "The Constitution is not what the President says it is."

Appearing before the Senate Judiciary Committee last month to articulate the administration's position, Deputy Assistant Attorney General Michelle E. Boardman denied that the president was trying to "cherry-pick" among the parts of a duly enacted law. "Presidential signing statements are, rather, a statement by the president explaining his interpretation of and responsibilities under the law," she said.

Whether the ABA report will influence the Bush administration is unclear, since many conservatives in the administration and in Congress believe that the ABA has a "liberal bias." In the early days of the Bush Administration, it ended the organization's role in evaluating judicial nominees.

Moreover, Bush has a number of conservative congressional allies in the signing statement issue. For example, Sen. John Cornyn, a Texas Republican and former judge, has said that signing statements are merely expressions of presidential opinion that carry no legal weight because federal courts are unlikely to consider them when deciding cases that challenge the same laws.

But Mary Shaw of Amnesty International USA summed up the feelings of human rights advocates. She told us, "Signing statements must not be used to skirt the President's responsibilities under international law. Amnesty International was pleased with the passage of the anti-torture bill through Congress in December. However, that victory came with a new challenge, as President Bush, in signing the bill, issued a "signing statement" in which he asserted that he could waive the ban on torture and inhumane treatment when he deemed it necessary. Torture is never necessary. It is absolutely prohibited through international law and human rights standards, as well as the Eighth Amendment of the U.S. Bill of Rights. The President of the United States is not above the law."

That may come as something of a shock to Mr. Bush.