The Magazine

Shut Up, They Explained

The ABA's latest anti-Bush strike.

Aug 7, 2006, Vol. 11, No. 44 • By EDWARD WHELAN
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CAPTURED for the past two decades by the left, the American Bar Association leverages its clout as a professional services group for lawyers in support of an array of liberal causes. Its special task force on presidential signing statements--which last week accused President Bush of undermining the rule of law and the separation of powers--provides a revealing case study of the politicization of the ABA.

Presidents as far back as Andrew Jackson in 1830 have used signing statements "to raise and address the legal or constitutional questions they believed were presented by the legislation they were signing." That's what Walter Dellinger, the liberal law professor who was appointed by President Clinton to head the Justice Department's Office of Legal Counsel, explained in a 1993 OLC opinion. Such statements, Dellinger concluded, are an entirely proper means of resolving the dilemma a president faces when a bill that he regards as desirable also contains one or more provisions that he believes to be unconstitutional or suspect. Dellinger rejected an alternative view--that the president's duty in such instances is to veto the bill.

In early June, left-wing ABA president Michael Greco declared that President Bush's "practice of attaching signing statements to laws squarely presents a constitutional issue about the separation of powers among the three branches." Greco an nounced the creation of a "nonpartisan" task force to examine the issue--and promptly stacked it with fervent opponents of President Bush, including three Republicans who had already criticized President Bush's use of signing statements. Notably, Greco did not invite Dellinger (or any of his OLC attorneys now in academia) to take part. Greco also lam basted President Bush for "acting like a king."

The substance of the constitutional positions that President Bush has taken in his signing statements is a fair matter for debate, and it would have been no surprise if the rigged task force had vigorously contested some of those positions. But instead, in what Dellinger described to me in an email as a "fundamental misdiagnosis," the task force adopted an extremist and highly idiosyncratic stance absolutely opposing a president's use of signing statements to state his constitutional objections to provisions in laws that he is signing. According to the task force, a president's constitutional obligation is to veto any bill that has any provision he believes is unconstitutional.

That position is wrong and unworkable. The task force imagines that the president's constitutional duty to "take Care that the Laws be faithfully executed" requires him to enforce provisions of a law that he regards as unconstitutional--"unless and until they are held unconstitutional by the Supreme Court or a subordinate tribunal." But the Constitution is first among the "Laws" that the president "shall take Care . . . be faithfully executed." An unconstitutional provision of a legislative enactment is void, and it is the president's duty not to enforce provisions that he regards as unconstitutional. (How he ought to form that judgment is a separate question.) It is therefore entirely proper for a president to sign a bill that has some provisions that are constitutional and others that aren't, for the latter (and any other provisions inseverable from them) should be regarded as though they didn't exist.

Indeed, the operations of the federal government depend on a president's acceptance of this practice. The task force posits the "rare possibility" that a president might think it necessary to sign legislation that contains an unconstitutional provision, but it also contends that use of a signing statement is unacceptable even in such a case. Yet such instances are common, not rare. Virtually every appropriations bill, for example, contains a legislative-veto provision--which typically purports to confer on a single house of Congress, or even a single committee, the power to nullify executive-branch action--notwithstanding the fact that the Supreme Court recognized that mechanism to be unconstitutional more than 20 years ago.

There is little reason to believe (and the task force does not argue) that if the president were required to veto any bill with an unconstitutional provision, Congress would stop in serting unconstitutional provisions. It is at least as likely that members of Congress would gamble that inserting such provisions would increase their negotiating leverage, or that they would use such provisions as poison pills for bills they disfavor. In any event, there is plenty of room for the president and Congress to have reasonable disagreements whether certain provisions are unconstitutional. A healthy understanding of separation of powers would recognize that each branch should display a particular concern for its own prerogatives.