July 23, 2006: ABA Task Force Declares Bush’s Use of Signing Statements Unconstitutional

The American Bar Association (ABA)‘s Task Force on Presidential Signing Statements and the Separation of Powers Doctrine issues its final report for its investigation into whether President Bush has exceeded his presidential authority by using signing statements to assert that he can ignore or override laws passed by Congress (see June 4, 2006).
Bush Violating the Constitution - The report concludes that Bush is violating the Constitution by signing a bill and then issuing a signing statement declaring that he will refuse to obey selected sections of that bill. The president’s own belief that a particular provision of a law is unconstitutional carries no legal weight, and gives him no right to ignore or disobey that provision, the task force finds. The Constitution gives presidents only two options: veto a bill, or sign it and enforce it. “The president’s constitutional duty is to enforce laws he has signed into being, unless and until they are held unconstitutional by the Supreme Court,” the report reads. “The Constitution is not what the president says it is.”
De Facto Line-Item Veto - Signing statements as used by Bush and earlier presidents (see 1984-1985, August 23, 1985 - December 1985, October 1985, February 6, 1986 and After, and November 1993) are evolving into a kind of back-door line-item veto, which the Constitution does not grant presidents—especially when Congress cannot override it. “A line-item veto is not a constitutionally permissible alternative,” the report reads, “even when the president believes that some provisions of a bill are unconstitutional. A president could easily contrive a constitutional excuse to decline enforcement of any law he deplored, and transform his qualified veto into a monarch-like absolute veto.”
Bringing the Presidency Back into Alignment - Over 150 newspaper editorial boards, columnists, and cartoonists quickly endorse the ABA’s call to end the abuse of signing statements. Some critics of the ABA report say that, in attempting to avoid singling out Bush for criticism, the task force failed to address the root issue behind the signing statements—the unitary executive theory espoused by the administration (see April 30, 1986). Instead of asking that signing statements themselves be ended, some critics say, the Bush administration’s attempts to usurp other branches’ power for the presidency must be curbed. Law professor Laurence Tribe calls the Bush administration “pathological power holders” and “misfits” who are abusing a valid presidential tool. Task force member Mickey Edwards, a former Republican congressman, says the fundamental issue is to bring the presidency back into proper alignment with the other two branches. “It’s not about Bush, it’s about what should be the responsibility of a president,” he says. “We are saying that the president of the United States has an obligation to follow the Constitution and exercise only the authority the Constitution gives him. That’s a central tenet of American conservatism—to constrain the centralization of power.” [American Bar Association, 7/23/2006 ; Savage, 2007, pp. 245-247]