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WASHINGTON � It was an otherwise routine oral argument before the U.S. Supreme Court in April. Justices were debating the meaning of the Individuals with Disabilities Education Act, with Justices Stephen Breyer and Antonin Scalia jousting, as usual, over the significance of the legislative history of the statute. The lawyer arguing the case, Arlington Central School District v. Murphy, might as well have sat down while the justices talked among themselves. Suddenly, Scalia piped up with a question. “What about the president? When he signed it, did he indicate an interpretation?” It was a startling inquiry, especially coming from a justice who fervently insists that he cares only about the words of a statute, not the spin that legislators � and presidents, presumably � put on those words. But it was a sure sign that the statements presidents issue when they sign bills into law, long ignored as the rough equivalent of White House press releases, are receiving renewed attention in all sectors of Washington. Controversy over President Bush’s frequent and aggressive use of the statements to signal that he might not enforce bills he signed has gained momentum rapidly over recent months and could careen toward the Supreme Court itself � with an uncertain fate. Bush has issued signing statements questioning more than 800 provisions of laws he signed, according to the American Bar Association. That’s more than all the previous presidents combined. Often couched in language about his supervisory powers over the executive branch and foreign affairs, Bush has questioned laws ranging from the ban on torturing detainees to provisions establishing affirmative action programs to a ban on the use of American military forces in Colombia. A milestone in the dispute came Aug. 8, in Honolulu, of all places, at the annual convention of the ABA � an organization that is typically capable of studying an issue to death over months and years. Just two months after then-ABA President Michael Greco appointed a task force to look into the controversy, the governing House of Delegates, meeting in Hawaii, overwhelmingly approved a strongly worded resolution opposing the “misuse” of presidential signing statements as “contrary to the rule of law and our constitutional system of separation of powers.” The resolution said presidents who believe a law is unconstitutional should veto it, rather than issue a signing statement. The ABA also urged passage of a bill that would give members of Congress and others standing to challenge in court presidential signing statements that claim the authority to disregard part or all of a law. But criticism of the ABA action has come from an unexpected quarter: Clinton-era Justice Department officials, including former acting Solicitor General Walter Dellinger III, who say the ABA incorrectly focused on signing statements � which they view as useful � rather than on Bush’s actions expanding executive power. “The real problem is when the president actually refuses to enforce the law, not the signing statement itself,” says Dawn Johnsen, an Indiana University School of Law-Bloomington professor and former Clinton official who joined in a statement opposing the ABA action. “It’s a good thing for a president to tell us what he thinks of a law; signing statements should be longer.” She fears that in response to the ABA resolution, the Bush administration will soften or eliminate signing statements but continue to expand executive power and defy Congress without saying so as explicitly. “This attack will likely increase the secrecy of the administration,” Johnsen says. Seeds of the dispute were sown late last year during the debate over Samuel Alito’s nomination to the Supreme Court. Liberal groups sounded the alarm over Alito’s embrace of the concept of the “unitary executive,” a muscular view of the presidency that seemed in sync with Bush’s post-9/11 pronouncements about executive power. A prime piece of evidence was a 1986 memo written by Alito, then a deputy assistant attorney general in the Reagan Justice Department. In the memo, Alito recommended ramping up the issuance of signing statements that would offer the president’s interpretation of bills he signed, even if that interpretation differed from that of Congress. “Our primary objective is to ensure that presidential signing statements assume their rightful place in the interpretation of legislation,” Alito wrote. Excessive citation by judges of legislative history � floor debates and committee reports � in interpreting statutes, rather than the actual words of the statutes, was one of the bugaboos of the Reagan legal revolution. Alito’s aim in increasing the issuance of presidential signing statements was to counter, or at least neutralize, congressional legislative history with the president’s view. “It would increase the executive’s power to shape the law,” he wrote. Alito acknowledged that such a campaign “will not be warmly welcomed by Congress” and could run into “theoretical problems,” including the belief that the president’s views of what Congress intended when it passed a law are irrelevant. “If our project is to succeed, we must be fully prepared to answer this argument,” Alito wrote. Fast-forward to 2006, when Alito, now a Supreme Court justice, wrote the court’s ruling in the Arlington Central case, in which Scalia asked his provocative question. Alito made no mention of the signing statement that President Ronald Reagan issued when he signed the disabilities law in 1986, around the time that the young Alito wrote his memorandum. In fact, the Reagan signing statement did not comment on the section at issue in the case. But Alito was explicit, Scalia-style, in rejecting the legislative history of the law as a tool for interpreting its meaning. But the controversy over signing statements goes beyond their use in interpreting statutes. The more prickly question of whether presidents can or should use signing statements to assert the unconstitutionality of laws came into focus in April, when The Boston Globe reported that Bush, through signing statements, had “claimed the authority to disobey more than 750 laws.” A prime example was Bush’s statement in December 2005, when he signed the bill including the so-called McCain torture ban, which prohibited cruel and degrading treatment of detainees. Bush wrote, “The executive branch shall construe [the law] in a manner consistent with the constitutional authority of the President … as Commander in Chief,” with the goal of “achieving the shared objective of the Congress and the President … of protecting the American people from further terrorist attacks.” Soon the Senate jumped on the issue, and Sen. Arlen Specter, R-Pa., scheduled hearings to spotlight what he saw as yet another erosion of congressional power. “We’ve got to lay down the gauntlet and challenge him on it,” Specter said. Specter introduced legislation that, among other things, would give Congress standing to challenge signing statements in court. Few analysts think the measure will get very far in the current Congress, despite the ABA action. But even if Congress were to pass a law allowing legal challenges to signing statements, that is no guarantee that such lawsuits would get very far. “A clear non-starter” is how Harvard Law School professor Laurence Tribe describes signing-statement lawsuits. A signing statement, which he analogized to presidential criticism of Congress in a State of the Union address, does not create a “case or controversy” that would trigger judicial intervention under Article III of the Constitution. “This is mere insult, not genuine injury,” Tribe wrote on the Balkinization blog on Aug. 6. Former Reagan Justice Department aide Bruce Fein sharply disagrees. Fein, who has been increasingly critical of Bush in recent years, was a member of the ABA task force and the Constitution Project initiative, and he assisted Specter in drafting the legislation allowing legal challenges to signing statements. Fein says members of Congress are constitutionally injured by signing statements that signal a plan not to enforce a particular provision. “The concrete injury caused by such a signing statement is the inability of Congress to override what amounts to a veto of the law Congress has passed,” he says. In other words, Fein believes that Bush, who has vetoed only one bill since taking office in 2001, has in effect vetoed other bills through his signing statements � but in a way that evades the constitutional process of congressional overrides. There still may be other hurdles, such as questions of ripeness, says Georgetown University Law Center professor Nicholas Rosenkranz, who testified before the Judiciary Committee in June. A signing statement that merely asserts a president’s plan to enforce the law according to his constitutional views is not the same as a pledge to defy that law, Rosenkranz notes. “Will the legality of a presidential signing statement ever get before the Supreme Court?” Rosenkranz asks rhetorically. “Probably not.” Tony Mauro is the U.S. Supreme Court correspondent for Legal Times, a Recorder affiliate based in Washington, D.C. His e-mail address is [email protected].

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