Amer. Bar Association-"Signing statements are a threat to the Constitution"

[John of Phoenix]

The best minds of the American Bar Association think dubya is a threat to the Constitution he swore to protect and uphold.


The task force report states, “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 report found that President Bush’s signing statements are “ritualistic, mechanical and generally carry no citation of authority or detailed explanation.” Even when “[a] frustrated Congress finally enacted a law requiring the Attorney General to submit to Congress a report of any instance in which that official or any officer of the Department of Justice established or pursued a policy of refraining from enforcing any provision of any federal statute, … this too was subjected to a ritual signing statement insisting on the President’s authority to withhold information whenever he deemed it necessary.”

“This report raises serious concerns crucial to the survival of our democracy,” said Greco. “If left unchecked, the president’s practice does grave harm to the separation of powers doctrine, and the system of checks and balances, that have sustained our democracy for more than two centuries. Immediate action is required to address this threat to the Constitution and to the rule of law in our country.”

http://www.abanet.org/media/releases/news072406.html

[Chris Coose]

dubbya signs a record number of these with a republican house and senate - legislators who he is most inclined to agree with.

Magine the frequency and amount after November?

Here is an issue the dems should and could bury the idiot with. Think they will? Their track record says they will ignore it.

Crazy.

[Norman Bernstein]

Careful... this is not reality... it's Republicanmerica. The ABA are heroes when they state that Bush's conservative Supreme Court picks are 'qualified'... but they're discredited as 'liberals' when they oppose signing statements.

[John of Phoenix]

"Immediate action is required to address this threat to the Constitution and to the rule of law in our country."

How's that for a clear and present danger? High crimes?
My bet is that this story never sees the light of day.

"Liberal media" and all that dontcha know.

[Donn]

From another part of the report:

But under President Ronald Reagan, “For the first time, signing statements were viewed as a strategic weapon in a campaign to influence the way legislation was interpreted by the courts and Executive agencies as well as their more traditional use to preserve Presidential prerogatives.”

Remember who suggested that Reagan adopt that practice? Yep...one of his White House Counsels, Sam Alito. He's the guy the ABA called "well qualified" for the Supreme Court.

[Donn]

My bet is that this story never sees the light of day.



You lose.

CNN (http://www.cnn.com/2006/POLITICS/07/24/lawyers.bush.ap/index.html?section=cnn_topstories)

[Norman Bernstein]

Remember who suggested that Reagan adopt that practice? Yep...one of his White House Counsels, Sam Alito. He's the guy the ABA called "well qualified" for the Supreme Court.

So they had good judgment in voting Alito as 'well qualified'.... but have bad judgement now?

They called this practice (signinig statements) a "threat to the Constitution and the rule of law"... that's a damnedly serious charge, and reflects some very serious concern.

The President takes an oath the 'faithfully see that the laws are executed'... there is nothing in his responsibility list that says he has the right to interpret them as he sees fit... or ignore them. Top do so would be 'legislating from the Oval Office', an offense similar to 'legislating from the bench'... would it not?

[Meerkat]

I'd like to see two laws:

1. Make signing statements illegal since they are already.

2. Dock the president's pay for any weekday he's away from the Whitehouse on other than official business, 2 week vacation and weekends at Camp David excepted. We didn't hire this guy to spend half his time playing cowboy at our expense! Uh... wait a minute, he spends ALL his time playing cowboy! :D

[Donn]

So they had good judgment in voting Alito as 'well qualified'.... but have bad judgement now?


Who said that? Oh yeah, you did.

I have a feeling that the potentially unconstitutional activity might be acting on a signing statement, rather than just writing one.

Alito's argument for them, IIRC, is the Unitary Executive theory, which holds that Congress cannot legislate it's way into the bailiwick of the Executive branch, thus breeching the Constitution's establishment of separation of powers.

[Meerkat]

I have a feeling that the potentially unconstitutional activity might be acting on a signing statement, rather than just writing one.
So, writing a plan to overthrow the government is OK as long as one does not act on it? That's almost funny - NOT!

[John of Phoenix]

Donn, what's your point about Alito?

[Donn]

No point, John. It's just an interesting juxtaposition, and a fairly obvious election year posture. Alito thinks signing statements protect the Constitutional doctrine of separation of powers. The ABA thinks signing statements attack that doctrine, yet they consider Alito "well qualified" to interpret the Constitution.

[Bruce Hooke]

I have a feeling that the potentially unconstitutional activity might be acting on a signing statement, rather than just writing one.

To a degree, I agree. Simply asserting a right, if you don't actually act in it, does not count for much, especially when the right asserted is fairly nebulus to start with. On the other hand, I'm fairly certain that he has acting on some of his signing statements.


Alito's argument for them, IIRC, is the Unitary Executive theory, which holds that Congress cannot legislate it's way into the bailiwick of the Executive branch, thus breeching the Constitution's establishment of separation of powers.

And it seems to me that the counter argument to this is that it is not the job of the Executive Branch to decide when Congress is legislating on stuff that is outside their bailiwick. Such decisions ought to be the job of the courts. One could also argue that if the President firmly believes that an act of Congress violates the Constitution then the best way for the President to uphold his oath of office would be to veto the act. The Executive Branch's check on the power of the Congress is the veto, not selectively deciding to ignore acts of Congress.

[John of Phoenix]

I see. Thanks.

It might be because dubya's extensive use of signing statements didn't get any attention until Charlie Savage of The Boston Globe published this article at the end of April. http://www.boston.com/news/nation/articles/2006/04/30/bush_challenges_hundreds_of_laws/?page=full
That would be long after the ABA's comments on Alito.

Maybe it's a case of "If they knew then, what they know now..." They do make the point that Regan's use was quite a bit different than dubya's but they sure don't think much of signing statements.

Veto it or sign it.

[Donn]

And it seems to me that the counter argument to this is that it is not the job of the Executive Branch to decide when Congress is legislating on stuff that is outside their bailiwick.

I think this is more a case of him deciding Congress is attempting to act with his bailiwick, than outside theirs.

[Donn]

I see. Thanks.

It might be because dubya's extensive use of signing statements didn't get any attention until Charlie Savage of The Boston Globe published this article at the end of April.

Oh please. The signing statements have been all over both the news and the blogs for at least a couple of years. Contrary to the ABA's opinion, there is a good deal of transparency in their use, since they are cataloged in publicly available resources. I don't think it's a coincidence that their existence has become an issue in an election year.

[Meerkat]

I think Donn would be much happier in a nice little dictatorship. I encourage him to go buy a caribbean island and set himself up as El Supremo, the first. :D

[George Roberts]

I guess that Mr. Bush is a poor neighbor at home also.

[Bruce Hooke]

I think this is more a case of him deciding Congress is attempting to act with his bailiwick, than outside theirs.

Fair enough, but I don't think that changes any of the rest of my argument. If the President thinks Congress is over stepping its bounds and infringing on the Executive Branch's authority then either take the issue to the courts or veto the law.

[Bruce Hooke]

Oh please. The signing statements have been all over both the news and the blogs for at least a couple of years. Contrary to the ABA's opinion, there is a good deal of transparency in their use, since they are cataloged in publicly available resources. I don't think it's a coincidence that their existence has become an issue in an election year.

I think it is more likely that the ABA looked at the overall sweep of Alito's decisions when they gave him their stamp of approval and that one decision on a matter on which reasonable people might disagree would not cause them to change their rating of him, but also does not mean they agreed with him on that issue when they rated him.

[ljb5]

I don't think it's a coincidence that their existence has become an issue in an election year.

Do you think it's a coincidence that this president has used them many times more than all previous presidents combined?

[marwesmed]

lawyers see Bush as a threat to thier livelyhood, lawsuites, so why would they not try to find fault with him.

[Cuyahoga Chuck]

Since the AMA rated Sam Alito as "well qualified" it therefore must believe that every syllable that falls from Sam's lips is God's own truth?

[Osborne Russell]

Since the AMA rated Sam Alito as "well qualified" it therefore must believe every syllable that falls from Sam's lips is God's own truth?

A foolish consistency.

[Meerkat]

Consistency is the hobgoblin of little minds. ;)

[shamus]

I expect you mean breaching.

[Landrith]

I was a lawyer. I appealed a federal court ruling that there is no private right of action for damages under the USA PATRIOT Act. Congress expressly included liability for a malicious Suspicious Activity Report. I appealed, the first appellate court to hear this issue. I was sanctioned $23,000.00. The Arkansas Supreme Court a year later followed my reasoning in an unrelated case. The US Supreme Court just before the two new appointments declined to grant cert. My state used it as an excuse to prosecute me.

The ABA was no where around. Life in AMERIKA.

[Meerkat]

Maybe Shrub's signing statement on the Patriot Act?

That's pretty crappy, Landrith.

[Cuyahoga Chuck]

" I don't think it's a coincidence that their existence has become an issue in an election year."

Since the president operates behind a phalanx of supporters in both House and Senate the only opportunity the opposition has to get at him is at election time.
And whether it's coincidence or not, it's ammo to good to waste.
It's a gift from The Prez himself!

Charlie

"Hoisted on your own petard?"

[George Jung]

Whoa! I'd be interested in more details, Landrith. Can you point us toward a site that meats this out a bit? Or provide more details?

[Meerkat]

Election Year. The left brings up the right and the right brings up the left. It's Report Card time.

[Cuyahoga Chuck]

"It's Report Card time."

If Donn sees a report card with a string of F's he will interpret them as standing for "fair" or "fortuitous" or "faithful" or "fabulous" or .....

[George.]

... breeching the Constitution...

I didn't know it ever wore diapers... :D

[Chris Coose]

I wonder what day it was the dubbya dreamed he was qualified to be president.

[Landrith]

George Jung you can learn more than you ever wanted to know at www.medicalsupplychain.com/news.htm The USA PATRIOT Act was used against this Missouri company to keep it out of the 1.3 trillion dollar monopolized hospital supply market. Medical Supply would have saved about eight US auto plants. Look for the supreme court cert under the US Bank case.

[John of Phoenix]

Donn says, "Signing statements have been all over both the news and the blogs for at least a couple of years. Contrary to the ABA's opinion, there is a good deal of transparency in their use, since they are cataloged in publicly available resources."

The full ABA report opens with this statement regarding Savage and his article about signing statements.

I. INTRODUCTION
On April 30, 2006, Charlie Savage, a respected veteran reporter for the Boston Globe,
wrote a lengthy article on the use of presidential “signing statements” in which he reported that
“President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he
took office, asserting that he has the power to set aside any statute passed by Congress when it
conflicts with his interpretation of the Constitution.” Savage wrote:
Legal scholars say the scope and aggression of Bush's assertions that he can bypass
laws represent a concerted effort to expand his power at the expense of Congress,
upsetting the balance between the branches of government. The Constitution is
clear in assigning to Congress the power to write the laws and to the president a
duty ''to take care that the laws be faithfully executed." Bush, however, has
repeatedly declared that he does not need to ''execute" a law he believes is
unconstitutional.
Id. The Savage articles created a major national controversy, with the use – and, as some charged,
the abuse – of signing statements drawing both severe critics and staunch defenders, with dozens
of newspaper editorials and op-ed pieces published.
Senator Arlen Specter (R-PA), the Chairman of the Senate Judiciary Committee, charged
that congressional legislation “doesn't amount to anything if the president can say, 'My
constitutional authority supersedes the statute.' And I think we've got to lay down the gauntlet and challenge him on it” He denounced the President’s use of
blatant encroachment” on Congress's power to legislate.

All that news and transparency seems to have eluded the press, the ABA and Senator Specter's attention until Mr. Savage's article.
Or perhaps it was the nature of dubya’s abuse that went unnoticed.

_______________________________
The ABA seems to think Alito's judicious use of signing statements was appropriate - "construing 'ambiguous' statutory terms " - hence their approval for his nomination.
In contrast, dubya uses them to circumvent to Constitution.


(Footnote 32) Supreme Court Justice Samuel Alito wrote a memorandum while in the Office of Legal
Counsel in 1986 counseling some modest experimentation with signing statements construing
“ambiguous” statutory terms but recommended avoiding interpretive conflicts with Congress
where the meaning of the law was clear. See Samuel A. Alito, Jr., Using Presidential Signing
Statement to Make Fuller Use of the President’s Constitutionally Assigned Role in the Process of
Enacting Law (Feb. 5, 1986) (Office of Legal Counsel memorandum), at
http://www.archives.gov/news/samuel-alito/accession-060-89-269/Acc060-89-269-box6-SG-LSWG-AlitotoLSWG-Feb1986.pdf [edited to fix url, thanks Nicholas]

Full ABA Signing Statement Report
http://www.abanet.org/op/signingstatements/aba_final_signing_statements_recommendation-report_7-24-06.pdf

[Meerkat]

See Samuel A. Alito, Jr., Using Presidential Signing
Statement to Make Fuller Use of the President’s Constitutionally Assigned Role in the Process of
Enacting Law (emph. added) (Feb. 5, 1986) (Office of Legal Counsel memorandum), at
http://www.archives.gov/news/samuel-...WG-Feb1986.pdf (http://www.archives.gov/news/samuel-alito/accession-060-89-269/Acc060-89-269-box6-SGLSWG-AlitotoLSWG-Feb1986.pdf)
Some part of the Constitution hidden? AFAIK the president's constitutionally assigned role in enacting new law is to sign or veto, period.


en·act
To make into law: Congress enacted a tax reform bill.

[Nicholas Carey]

The link to Alito's memo at the National Archives is broken. A little rummaging found it though:

http://www.archives.gov/news/samuel-alito/accession-060-89-269/Acc060-89-269-box6-SG-LSWG-AlitotoLSWG-Feb1986.pdf

Here's the meat of the memo -- the remainder proposes a "pilot program" for signing statements and considers various "problems" regarding Mr. Alito's creative concept (such as the reluctance of the courts or the congress to drink the Kool-Aid):
Our primary objective is to ensure that Presidential signing statements assume their rightful place in the interpretation of legislation. In the past, Presidents have issued signing statements when presented with bills raising constitutional problems. OLC [Office of Legal Counsel] has played a role in this process, and the present proposal would not substantitively alter that process.

The novelty of the propoal previously discussed by this Group is the suggestion that Presidential signing statements be used to address questions of interpretation. Under the Constitution, a bill becomes law only when passed by both houses of COngress and signed by the Presidents (or enacted over his veto). Since the President's approval is just as important as that of the House or the Senate, it seems to follow that the President's understanding of the bill should be just as important as that of the Congress. Yet in interpreting statues, both courts and litigants (including lawyers in the Executive branch) invariably speak of "legislative" or "congressional" intent". Rarely if ever do courts or litigants inquire into the President's intent. Why is this so?
.
.
.
From the perspective of the Executive Branch, the issuance of interpretive signing statements would have two chief advantages. First, it would increase the power of the Executive to shape the law. Second, by forcing some rethinking by courts, scholars and litigants, it may help to curb some of the prevalent abuses of legislative history.It would seem the the current Resident's signing statements go way beyond what Alito proposed. Bush's signing statments claim the ultimate authority on the law and if it is to be enforced; Alito merely proposed, as a means of extending presidential power, that the President's interpretation of the law might be considered on a par with that of the Congress.

Alito's notion is wrong, I believe -- The Constitution requires that the President "take care that the Laws be faithfully executed". It neither assigns the president the authority to divine which laws ought to be executed, or to interpret the law as he sees fit.

[Osborne Russell]

Under the Constitution, a bill becomes law only when passed by both houses of COngress and signed by the Presidents (or enacted over his veto). Since the President's approval is just as important as that of the House or the Senate, it seems to follow that the President's understanding of the bill should be just as important as that of the Congress. Yet in interpreting statues, both courts and litigants (including lawyers in the Executive branch) invariably speak of "legislative" or "congressional" intent". Rarely if ever do courts or litigants inquire into the President's intent. Why is this so?


Federalism, or, the balance of power between states and federal government. Legislators are more accountable to their own states than the executive. Legislation may also represent compromise between states which might be impeded if the executive were more powerful.

Just another aspect of Red schizophrenia. They hate the federal government and want more states rights, except, not.

[ljb5]

This was roughly the same argument behind the line-item veto, which was discarded in 1998 on the grounds that it was unconstitutional.

The simple answer to the question, "Why is this so?" is, "Because the Constitution says so."

Osborne nailed the complicated answer.

Somehow, both answers eluded Alito.

[Gonzalo]

Somehow, both answers eluded Alito. They eluded Alito because he was a lawyer working as White House Council at the time. That is roughly the same as "a paid shill for the White House." If Alito had been working for the legislative branch, he would have made the opposite opinion at the behest of his clients.

Nothing against Alito personally...it is just what lawyers do.

[ljb5]

That's good news. It implies that when the ABA rated him as "well qualified," they were not expressing approval of his stance on this issue --- but rather expressing approval of his ability to formulate an argument in support of his client.

Donn will be please to hear that there is no inherent conflict in the ABA rating him highly and disapproving of signing statements. :D

Now that he is no longer a 'paid shill,' the real question is if he still feels that way.