The American Bar Association takes another swipe at the Bush presidency.
Monday, July 31, 2006 12:01 a.m. EDT
In a letter in today's Wall Street Journal, American Bar Association President Michael Greco objects to our calling his outfit a liberal interest group that should lose its special role in vetting federal judicial nominees. Well, then what are we to make of the ABA's report last week accusing President Bush of abusing his power by explaining how he interprets the bills he signs into law?
In its new "study," the ABA claims that Presidential "signing statements" are "contrary to the rule of law and our constitutional system" and urges Congress to pass a law giving itself the power to challenge them in court. It then advances a theory under which the President has no authority to judge for himself the Constitutionality of the various laws he signs. This is absurd on its face given that the President takes an oath to "preserve, protect and defend the Constitution of the United States," thus obliging him to form an independent opinion of what this requires.
As the ABA study acknowledges, Presidential "signing statements" or their equivalent go back to the early days of the republic. James Monroe signed a bill mandating a reduction in the size of the army but challenged its prescriptions for selecting military officers--asserting the latter was a Presidential duty.
Or consider President Clinton's signing statement on the Consolidated Appropriations Act for 2000. It took issue with "a number of provisions . . . regarding the conduct of foreign affairs that raise serious constitutional concerns"--such as limiting his ability to conduct negotiations on a climate change treaty. "Wherever possible," Mr. Clinton said, "I will construe these provisions to be consistent with my constitutional prerogatives." But "where such a construction is not possible, I will treat them as not interfering with those prerogatives and responsibilities."
All of which would appear to have also made Mr. Clinton a Constitutional scofflaw, according to the ABA. The lawyers' lobby says the Constitution requires the President to "approve or disapprove each bill in its entirety"--with no room to interpret what is often ambiguous legislative language that will typically be disputed in court no matter how the executive branch implements it. Yet only now, when antiwar partisans are trying to embarrass the Bush Administration, does the ABA speak up.
The political agenda of the ABA report is apparent from page one, which quotes from a newspaper report that "President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office." Only in a footnote does it acknowledge the article is wrong--Mr. Bush hasn't signed anywhere near 750 laws--and that what's at issue are various provisions of complicated acts of Congress.
It is hardly surprising that more conflicts over executive and Congressional powers are arising now, in wartime. The essence of the separation of powers is that each of the three branches has core duties that it is obliged to assert and defend, and wars require executive energy. The Founders certainly did not intend the federal courts to be the sole or ultimate arbiter of constitutionality--and therefore all government policy--as the ABA suggests.
The ABA also has a hard time understanding political balance. It apparently thinks its 10-person task force was fair because it included three "conservatives." But all three are known critics of the Bush Administration's interpretation of executive power, and two of them--Bruce Fein and William Sessions--have been consistently vocal about it. Meanwhile, the ABA excluded such Democrats as former head of the Clinton Administration's Office of Legal Counsel Walter Dellinger, who wrote a 1993 memo saying the President has an obligation to disregard unconstitutional laws.
We'd think even such dedicated liberals as Yale Professor Harold Koh would be embarrassed about the shoddy scholarship of the paper they've signed their names to. It attributes Mr. Bush's alleged misdeeds to a theory known as the "unitary executive," according to which all executive branch agencies are to be fully responsive to the wishes of the President. But what's really at issue is the totality of executive branch power under Article II of the Constitution, not the manner in which it is wielded.
Finally, there's Senate Judiciary Chairman Arlen Specter, who has introduced legislation similar to what the ABA is demanding. Having Congress ask the courts to usurp Presidential powers itself violates the Constitution as we read it--and it's also a recipe for governmental paralysis. It's a shame Mr. Specter isn't applying more of his energy instead to confirming Mr. Bush's judicial nominees.
The ABA report on Presidential signing statements is a transparent political exercise, and the lawyers should at least have the nerve to defend it as such, rather than pretend they are some neutral body. As for Senator Specter, his proposal is an attempt to tip the balance of federal power toward Congress and the courts. Presidents have an obligation to fulfill their duty to interpret legislation in a manner consistent with the Constitution--although we do wish Mr. Bush would use those powers more often to wield the veto pen.
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