Study calls for checks to Bush's power

Bush has issued 807 signing statements so far in his administration.
CHICAGO TRIBUNE
WASHINGTON -- President Bush has vetoed only one piece of legislation during more than five years in office, but he has issued more than 800 challenges to bills that he has signed into law with formal "signing statements," more than all of his predecessors combined.
Now, however, a task force of the American Bar Association has concluded that the president's unprecedented stream of signing statements poses a dangerous challenge to the constitutional checks and balances central to power in the United States. One of the signing statements reserves the right to torture detainees held in the war on terror.
The ABA report, to be released today, calls on Congress to exert more oversight and empower the courts to review presidential signing statements asserting the president's right to "ignore or not enforce laws." If unchecked, ABA President Michael Greco said in a prepared statement, the presidential use of signing statements "raises serious concerns crucial to the survival of our democracy."
This hardly is the first report or court ruling to raise concerns about Bush's exercise of executive authority, with the Supreme Court recently overruling the president's decision to try detainees at Guantanamo Bay, Cuba, with military tribunals without the approval of Congress. The president has asserted sweeping wartime powers since the terrorist attacks of Sept. 11, 2001.
White House response
The White House maintains that Bush is not attempting to make any grab for executive power, and that Bush is not flouting the laws that he signs with the issuance of signing statements, but rather is raising constitutional concerns.
"The president does not, and the administration does not, refuse to carry out the laws that have been passed by Congress and signed into law by the president," said White House press secretary Tony Snow, maintaining that Bush is not engaging in any "civil disobedience."
"In the context of trying to preserve and protect and defend the Constitution ... there will be places within signing statements -- caveats -- where he has reservations," Snow said. "It is not unusual -- although we have done it more than previous administrations -- to list those reservations, if nothing else, as markers, for issues that may later rise to be points of controversy."
Not enough
But this does not square with many of the administration's own signing statements, according to Neal Sonnett, a Miami lawyer and former U.S. attorney and chairman of the ABA task force making the report today.
"It's clear that a large number of the signing statements that have been issued by this administration claim the authority to disregard the law," Sonnett said. "This president is not the first president to do that. But he clearly has escalated the practice to what the task force believes is a dangerous new high. That has an impact on the separation of powers, and if it's left unchecked, it could do damage to our system and to the Constitution."
The ABA report notes the breadth of Bush's signing statements, saying, "From the inception of the republic until 2000, presidents produced fewer than 600 signing statements taking issue with the bills they signed. According to the most recent update, in his one-and-a-half terms so far, President George Walker Bush ... has produced more than 800."
The numbers do not represent separate signing statements, the ABA notes, but rather the specific number of challenges to laws contained within many signing statements. As of July 11, the ABA found that Bush has issued a total of 807 challenges.
Problems
"The problem about these guys is that they play winner-take-all politics on structural issues," said Richard Epstein, a law professor at the University of Chicago and senior fellow at the Hoover Institution who has written on the subject. "They push as hard as they possibly can and they never back down."
Bush voiced more than 500 objections to laws that he signed during his first term -- including 48 that challenged his authority to withhold information from Congress in the interest of protecting national security and 37 that challenged his wartime authority.
The ABA report disputes the White House's contention that signing statements are issued carefully. Bush's are "ritualistic, mechanical and generally carry no citation of authority or detailed explanation," the task force found. It noted that when Congress enacted a law requiring the attorney general to report on instances of officials' refraining from carrying out law, the president attached a signing statement insisting on authority to withhold information.
The ABA task force report, which will be submitted for endorsement by the organization's House of Delegates annual meeting in early August, calls on Congress to enact two pieces of legislation. One would require the president to promptly report on all signing statements it has issued, and any time that he intends to disregard a law or decline to enforce it to also submit a report that is open to public inspection detailing "the reasons and legal basis for the statement."
In addition, the report calls for legislation enabling Congress or individuals to seek judicial review of any case in which the president claims authority or states an intent to decline to enforce any part of a law that he has signed or interprets a law in conflict with "the clear intent of Congress."
While the White House insists it is exercising a constitutional duty, the ABA report notes that the Constitution says nothing about signing statements. The Constitution speaks only of vetoes -- and Bush issued his first last week, rejecting a bill authorizing expanded federal funding of research with embryonic stem cells.