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Bush flouts Constitution, ABA says

Do ‘signing statements’ undermine rule of law?

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WASHINGTON — The American Bar Association said Sunday that President Bush was flouting the Constitution and undermining the rule of law by claiming the power to disregard selected provisions of bills that he signed.

In a report, a bipartisan 11-member panel of the bar association said Bush had used so-called "signing statements" far more than his predecessors, raising constitutional objections to more than 800 provisions in more than 100 laws on the ground that they infringed on his prerogatives.

In the ABA panel report, members said that these broad assertions of presidential power amount to a "line-item veto" and improperly deprive Congress of the opportunity to override the veto.

For example, in signing a statutory ban on torture and other national security laws approved by Congress, Bush reserved the right to disregard them.

The bar association panel said the use of signing statements in this way was "contrary to the rule of law and our constitutional system of separation of powers."

If the president deems a bill unconstitutional, he can veto it, the panel said, but "signing statements should not be a substitute for a presidential veto."

The panel's report adds momentum to a campaign by scholars and members of Congress who want to curtail the use of signing statements as a device to augment presidential power.

At a recent hearing of the Senate Judiciary Committee, the chairman, Arlen Specter, R-Pa., said Bush seemed to think he could "cherry-pick the provisions he likes and exclude the ones he doesn't like."

Sen. Patrick J. Leahy of Vermont, the senior Democrat on the committee, said the signing statements were "a diabolical device" to rewrite laws enacted by Congress.

Presidents have long assumed the prerogative of signing statements, which detail portions of legislation they object to and may possibly not enforce.

Justice Department officials dismiss such criticism as unjustified. "President Bush's signing statements are indistinguishable from those issued by past presidents," said Michelle E. Boardman, a deputy assistant attorney general. "He is exercising a legitimate power in a legitimate way."

The panel acknowledged that earlier presidents, including Andrew Jackson, Ulysses S. Grant, Theodore Roosevelt and Franklin D. Roosevelt, had occasionally asserted the right to disregard provisions of a law to which they objected. Under Bill Clinton, the Justice Department told the White House that the president could "decline to execute unconstitutional statutes."

But the panel said that Bush had expressed his objections more forcefully, more often and more systematically. In his first term, the panel said, Bush raised 505 constitutional objections to new laws.

The panel urged Congress to pass a law requiring the president to "set forth in full the reasons and legal basis" for any signing statement in which he says he can disregard or decline to enforce a statute.

In another recommendation, the panel suggested legislation to provide for judicial review of signing statements.