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The statements that presidents issue when they sign bills into law were once ignored as being little more than press releases. That’s changed under George Bush, who has issued more signing statements than all other presidents combined � often to signal that he might not enforce a law even though he’s signed it. The practice has grown more controversial, and the American Bar Association passed a resolution against it this summer. But legal experts are split on whether Congress or the courts can stop the president from saying what he thinks of a law. According to the ABA, Bush has issued statements questioning more than 800 provisions of laws that he signed. Often referring to his supervisory powers over the executive branch and foreign affairs, the president has cast a skeptical eye over a wide range of legislation, from the ban on torturing military prisoners to provisions establishing affirmative action programs. Few observers realized how many signing statements had been issued by the president until an April article in The Boston Globe drew attention to the issue. Many lawmakers, including some Republicans, immediately criticized the broad nature of Bush’s statements. In June, Michael Greco, then the president of the ABA, appointed a task force to look into the matter. While the bar association typically studies an issue for months or years, in this instance it acted quickly. At the ABA’s annual convention in Honolulu in August, the governing House of Delegates 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 that presidents who believe a law is unconstitutional should veto it, rather than issue a signing statement. The ABA also urged passage of legislation that would give members of Congress and others standing to file court challenges against presidential signing statements that claim the authority to disregard part or all of a law. Even Miami lawyer Neal Sonnett, an ABA veteran and head of the task force, seemed surprised at how quickly the issue took hold. “The House [of Delegates] saw the need to send a very strong message,” he said in an interview immediately after the vote. “They got it.” But criticism of the ABA action has come from an unexpected quarter. Several officials in the U.S. Department of Justice under President Bill Clinton (including former acting solicitor general Walter Dellinger III), came out with a letter opposing the ABA’s resolution. The Clinton officials said that the ABA focused incorrectly on signing statements � which they view as useful � rather than on Bush’s push to expand executive power. “The real problem is when the president actually refuses to enforce the law, not the signing statement itself,” says Dawn Johnsen, a professor at Indiana University School of Law � Bloomington and a former Clinton official who joined in the letter to the ABA. “It’s a good thing for a president to tell us what he thinks of a law; signing statements should be longer.” Johnsen fears that in response to the ABA resolution, the Bush administration will soften or eliminate signing statements, but continue to defy Congress without saying so explicitly. “This attack [by the ABA] will likely increase the secrecy of the administration,” she says. The debate over signing statements goes beyond their use in interpreting statutes. The more prickly question is whether a president can or should use a statement to assert the unconstitutionality of a law. A prime example was the statement that Bush issued in December 2005 when he signed the bill that included 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.” After the Globe highlighted Bush’s use of signing statements with its article this spring, the Senate quickly jumped into the debate. Arlen Specter, the Republican chairman of the Senate Judiciary Committee, held hearings to spotlight what he saw as yet another erosion of congressional power. “We’ve got to lay down the gauntlet and challenge [Bush] on it,” Specter said. The senator introduced legislation that, among other things, would give Congress standing to challenge signing statements in court. However, few observers think Specter’s proposal will get very far despite the ABA’s support. But even if Congress were to pass a law allowing legal challenges to signing statements, that’s no guarantee that such suits would get very far. Laurence Tribe, the Harvard Law School professor and constitutional expert, wrote in the Balkinization blog in August that a signing statement 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 said. Bruce Fein, a Justice Department official under President Ronald Reagan, sharply disagrees. Fein, who has been increasingly critical of Bush in recent years, was a member of the ABA task force, and he helped draft Specter’s proposal that would allow legal challenges to signing statements. In Fein’s view, “The concrete injury caused by a signing statement is the inability of Congress to override what amounts to a veto of the law Congress has passed.”

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