By Michael Abramowitz
Washington Post Staff Writer
Monday, July 24, 2006; A05
A panel of legal scholars and lawyers assembled by the American Bar Association is sharply criticizing the use of "signing statements" by President Bush that assert his right to ignore or not enforce laws passed by Congress.
In a report to be issued today, the ABA task force said that Bush has lodged more challenges to provisions of laws than all previous presidents combined.
The panel members described the development as a serious threat to the Constitution's system of checks and balances, and they urged Congress to pass legislation permitting court review of such statements.
"The president is indicating that he will not either enforce part or the entirety of congressional bills," said ABA president Michael S. Greco, a Massachusetts attorney. "We will be close to a constitutional crisis if this issue, the president's use of signing statements, is left unchecked."
The report seemed likely to fuel the controversy over signing statements, which Bush has used to challenge laws including a congressional ban on torture, a request for data on the USA Patriot Act, whistle-blower protections and the banning of U.S. troops in fighting rebels in Colombia.
Administration officials describe them as a part of routine presidential practice.
"Presidents have issued signing statements since the early days of our country," White House spokeswoman Dana Perino said yesterday. "President Bush's signing statements are consistent with prior administrations' signing statements. He is exercising a legitimate power in a legitimate way."
Bush has vetoed only one bill since taking office, a bill approved by Congress last week relaxing his limits on federal funding for human embryonic stem cell research. But he has on many occasions signed bills, then issued statements reserving the right not to enforce or execute parts of the new laws, on the grounds that they infringe on presidential authority or violate other constitutional provisions.
Perhaps the most prominent example was legislation last year banning cruel, inhumane or degrading treatment of prisoners at U.S. detention centers. Bush signed the bill into law after a struggle with Congress, then followed it with an official statement indicating that he might waive the ban under his constitutional authority as commander in chief, if necessary to prevent a terrorist attack.
Determining the rarity of this approach is a matter of some dispute. The Justice Department has said that Bush has issued 110 signing statements, compared with President Bill Clinton's 80.
In testimony last month before the Senate Judiciary Committee, Deputy Assistant Attorney General Michelle E. Boardman denied that Bush was trying to "cherry-pick" among the parts of a duly enacted law. "Presidential signing statements are, rather, a statement by the president explaining his interpretation of and responsibilities under the law," she said.
The ABA task force, chaired by prominent Miami attorney Neil Sonnett, cites research that Bush in his signing statements has collectively lodged more than 800 challenges to provisions of laws passed by Congress.
Task force members said the nature of the challenges has also changed under Bush, with many objections being lodged under the "unitary executive" theory, the idea that congressional checks on the president's power are limited.
If the president has constitutional problems with a bill, the task force said, he should convey those concerns to Congress before it reaches his desk. The panel said signing statements should not be a substitute for vetoing bills the president considers unconstitutional.
"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 or a subordinate tribunal," panel members wrote. "The Constitution is not what the President says it is."
"The president greatly respects the roles of the branches of our government," Perino said, "and [for] anyone to suggest otherwise is ignoring the facts of our continued efforts to work with the Hill on all matters of legislation."
The impact of the report on the administration is uncertain, given the belief by many conservatives and some members of the Bush administration that the ABA has a liberal bias. Early in its tenure, the administration ended the association's special role in evaluating judicial nominations.
The 10-member ABA panel includes at least three well-known conservatives or Republicans: former congressman Mickey Edwards (R-Okla.), former FBI director William S. Sessions and former Reagan Justice Department member Bruce Fein. It also includes former appellate judge Patricia M. Wald, former Stanford Law School dean Kathleen M. Sullivan and Harvard law professor Charles J. Ogletree Jr. The report will be considered by the full ABA at its meeting next month.
Task force members said they hope their report will not be viewed as an attack on Bush, although it was his signing statements -- and a report about them in the Boston Globe -- that triggered their inquiry. "We're more interested in the issue rather than the particular president," Sonnett said.