Group opposes loss of signing statements
Lawyers say issue is president's use
WASHINGTON -- A group of former Clinton administration lawyers are urging the American Bar Association to reject its panel's call for presidents to stop issuing ``signing statements" that reserve the right to bypass laws, saying the problem is with President Bush's use of such statements, not the mechanism itself.
The ABA's 550-member House of Delegates will vote next week on endorsing a high-profile task force's conclusion that the Constitution gives presidents two choices: veto a bill, or sign it and enforce all of it. As the vote nears, several law professors who helped draft signing statements for President Clinton have emerged as critics of the task force's recommendations.
Last Monday, Walter Dellinger , a Duke University law professor who headed Clinton's Office of Legal Counsel, wrote in The
Bush has used such statements to challenge more than 800 laws -- more than all previous presidents combined -- embracing a controversial theory that puts the White House largely beyond the reach of congressional restrictions. Among the laws he has claimed the authority to bypass are a torture ban and oversight provisions in the USA Patriot Act.
``It is a mistake . . . to respond to these abuses by denying to this and future presidents the essential authority, in appropriate and limited circumstances, to decline to execute unconstitutional laws," Dellinger wrote.
He has also joined several other Clinton Justice Department officials in writing a lengthy essay accusing the ABA task force of distorting the issue out of a desire to appear bipartisan. The group, which posted its essay on several prominent blogs this week, includes professors Martin Lederman of Georgetown, David Barron of Harvard, Dawn Johnsen of Indiana, and Neil Kinkopf of Georgia State.
They argued that because Congress often lumps many laws into a single bill, it is sometimes impractical to veto the entire package because a few components have minor constitutional problems. Take away signing statements, they said, and presidents probably still will sign such bills -- only the public won't know that some parts of the bill may not be enforced.
But the Clinton lawyers' objections have not swayed Michael Greco , ABA president. Greco, a Boston lawyer, asked the ABA Board of Governors to create the task force following a Globe report on Bush's signing statements last spring. He is urging the bar group to embrace the task force's recommendations.
Greco said the Constitution gives any president two options -- veto the bill and give Congress a chance to override the veto, or sign the bill and ``hold your nose" and enforce all of its components. If presidential legal teams of either party want to use signing statements and enforce parts of the bill, they need to pass a constitutional amendment first, he said.
``The Constitution does not give a third alternative," Greco said. ``It demands that President Bush, or that President Clinton in the past, can only do two things -- sign the thing without cherrypicking it, or veto it. Any argument that strays from those two options is nothing more than trying to rationalize some presidential action that is not sanctioned by the Constitution."
The ABA task force's findings have also come under attack by law professors with ties to Republican administrations.
On Thursday, for example, the Boston Globe published an opinion article defending signing statements by law professors Eric Posner of the University of Chicago and Curtis Bradley of Duke University.
Posner worked in the Office of Legal Counsel under former President George H. W. Bush from 1992 to 1993, and Bradley worked for the current Bush administration as a State Department attorney in 2004.
Posner and Bradley agreed with the Clinton-era lawyers that presidents have a right to issue signing statements, calling them ``a useful device through which the president can announce his views . . . rather than conceal them." They also argued that Bush's signing statements are no different than Clinton's -- a claim that the Clinton-era lawyers, who say Bush has abused the mechanism, dispute.
Posner and Bradley also criticized the academic members of the ABA task force, saying that their legal reasoning was ``false." Their attack echoed a swipe by Ed Whelan , who worked for the Office of Legal Counsel from 2001 to 2004. In a blog posting on the conservative National Review's website, Whelan said the legal academics and former judges on the task force ``ought to be ashamed of themselves."
The task force included Yale Law School Dean Harold Koh , former Stanford Law School dean Kathleen Sullivan , and Harvard Law School professor Charles Ogletree , among others. It also included two retired federal judges -- former appeals court chief judge Patricia Wald and former district court judge William Sessions , who was FBI director under President Reagan and President George H.W. Bush .
Ogletree said he was not surprised that ``people closely connected to executive branch careers would object to our report."
``The Clintonites want us to harshly criticize Bush, and that's certainly a possibility, but that was not our goal," Ogletree said. ``We said let's raise this to a higher level of debate."
