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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The deeper flaw in the task force's approach is its hyperinflated version of the myth of judicial supremacy. In the ABA's view, the president is compelled to implement an unconstitutional provision "unless and until" some magistrate somewhere strikes down the provision. The task force misreads Marbury v. Madison as meaning that the judicial branch enjoys a monopoly on constitutional interpretation. But Marbury means only that judges, in exercising their role of deciding cases, may determine wheth er statutes they are applying comport with the Constitution. Nothing in Marbury remotely suggests that the president, in exercising his separate role of enforcing the laws, should not make a similar determination.

Indeed, the Constitution provides that the president shall swear to "preserve, protect and defend the Constitution"--not simply to administer statu tory law. Thus, when properly exercised, a president's use of signing statements to identify constitutional defects in bills that he signs is a vindication, not a violation, of separation-of-powers principles.

The task force's mistake rests more broadly on the conceit that because the president is inherently "partisan and interested" and the judiciary is "independent and impartial," the judiciary should therefore reign supreme over the president. That the president is elected and accountable and swears to uphold the Constitution, that life-tenured judges have amply demonstrated a penchant for overstepping their bounds in pursuit of ideological agendas, and that the Constitution creates a system of coequal branches operating in different realms evidently eluded the task force.

The ABA's report is, at every level, a shoddy piece of work--poorly reasoned, sloppily written, and displaying a pervasive misunderstanding of how the American constitutional scheme does, and should, work. Critics of the Bush administration should be particularly unhappy with the ABA. First, the members of the task force neglected an opportunity to address the substantive positions in President Bush's signing statements. They appear foolish when they blindly attack the form in which those positions are set forth.

Second, Greco's focus on signing statements is myopic. President Bush is charged with administering not only the laws he signs, but also all the laws that continue in effect from before he took office (as well as any that might be enacted in an override of his veto). Moreover, his duty to interpret the laws he signs is ongoing and is not limited to the occasion of the signing statement or constrained by it. Indeed, President Bush could have chosen to issue no signing statements and instead have quietly adopted exactly the same positions in implementing the laws. Would Greco really have preferred that approach?

It is a sorry testament to the state of legal academia today that prominent academics on the task force--including Yale Law School dean Harold Koh, Harvard law professor Charles Ogletree, and Stanford law professor Kathleen Sullivan--would sign off on such a report. Either these academics actually agree with the report or, though disagreeing (or perhaps not having read it with any care), they are willing nonetheless to lend their names and reputations to it. Neither explanation does them any credit.

Edward Whelan is president of the Ethics and Public Policy Center and a contributor to National Review Online's Bench Memos blog. From 2001 to 2004, he served as principal deputy in the Office of Legal Counsel in the Department of Justice.