Saturday, August 05, 2006

More on the ABA Signing-Statements Resolutions

Marty Lederman

Charlie Savage reports today on the skepticism that has greeted the ABA Task Force Report on signing statements from certain quarters (including by a group of former Clinton-era OLC lawyers of which I'm a part). According to Savage, "the ABA's 550-member House of Delegates will vote next week on endorsing a high-profile task force's conclusion that the Constitution gives presidents two choices: veto a bill, or sign it and enforce all of it. As the vote nears, several law professors who helped draft signing statements for President Clinton have emerged as critics of the task force's recommendations."

Savage further notes that "the ABA task force's findings have also come under attack by law professors with ties to Republican administrations," including by law professors Eric Posner of the University of Chicago and Curtis Bradley of Duke University. Although Posner and Bradley "agreed with the Clinton-era lawyers that presidents have a right to issue signing statements, . . . [t]hey also argued that Bush's signing statements are no different than Clinton's -- a claim that the Clinton-era lawyers, who say Bush has abused the mechanism, dispute." (Indeed, in our view the substantive distinctions between President Clinton's constitutional views and many of those of the current Administration is vast. As one of my co-authors has put it, to suggest that Presidents Clinton and Bush had similar views of executive power because their signing statements occasionally invoke the same constitutional provisions is akin to saying that because both Thurgood Marhsall and Clarence Thomas have relied upon the Equal Protection Clause to invalidate legislation, it's fair to asusme they share the same theory of constitutional equality.)


Several places on the internet are evaluating the process of reporting in writing when a signing statement's line item blue penciling is employed.

For example, I found a detailed letter from attorney general Reno to vice president Gore explaining why one rider attached to the Telecom Act was distasteful.

The ABA report chronicles a Bush-II signing memo which short circuits any paper trail process which would be available as an aggregate of all such formal letters such as Ms. Reno's to Mr. Gore in that matter (it concerned opting to ignore a congressional instruction to telcos to refuse to relay messages about abortion over telco networks).

So the question occurs to me whether congress or even the executive itself are keeping tabs on what actions are pursued by the agents of the executive acting according to authorities in signing statements but in violation of the known laws enumerated in the signing statements.

Maybe we are at the threshold of creating another interbranch agency to keep this record and make it open to the publicly elected representatives in congress. Though it seems like some form of executive privilege might be a way to hide parts of those actions by the executive.

It seems agencies of this sort are created when one branch would be too stretched to accomplish a simple task.

Maybe this is too elaborate a suggestion. But if congress is facing languishing in acquiescence to a permanent ignorance assigned to it by executive signing statements, and the judiciary simply waits for the inevitable turbulence to rise in the courts in such matters, it might be wiser to study the standoff from a more removed perspective and consider whether there needs to be an agency to perform the oversight.

Prof. Lederman:

I have read the ABA Report, the Posner-Bradley op-ed, and the various criticisms of the ABA Report, including those detailed by you, here and elsewhere. For the most part, I reject the criticisms and believe that the ABA has it right: presidential signing statements should cease, except in narrrow of circumstances I detail below.

First, I do not accept the argument that due to the confluence of omnibus legislation and the absence of a line-item veto a president is justified in signing a bill and then issuing a statement declaring he will not enforce or will disobey certain provisions. Instead, the president should simply veto the bill in its entirety. If this were to happen in a sufficient number of cases, one of two reforms would likely be instituted: a push for a constitutional amendment to provide line-item veto authority to the executive; or the end of omnibus billmaking by Congress. Either result is preferable to the chief executive signing a bill into law but then announcing he will neither enforce nor obey the law or portions thereof. If the president thinks a bill is unconstitutional he should veto it. Without the president performing this prescribed constitutional role, the system will not generate the pressure necessary to create necessary reform.

There are, however, certain circumstances in which signing statement are legitimate. As noted above, the prerequisite is that the president must first have vetoed the legislation, and that is my primary objection to your view on the legitimacy of signing statements. If, however, there has been a veto followed by an override of the veto, the president may legitimately issue a signing statement declaring that he will not obey or enforce the law. You have generally set forth the correct framework in your articles on the topic. But there is one caveat: In my view, the primary goal of the signing statement must be to secure judicial review. For that reason, the signing statement should clearly identify the offending provision and clearly explain the theory of constitutional objection. The signing statement should declare specifically whether the executive will elect non-enforcement or disobedience and the signing statement should further detail how the chosen path -- non-enforcement or disobedience -- will facilitate judicial review. If the Supreme Court decides the constitututional issue then that settles the matter. If justiciability fails notwithstanding the good faith efforts of the executive to secure review, then the executive may refuse to enforce and/or disobey assuming the other criteria in your framework are satisfied.

I'm sympathetic to DS's comments though don't know if a veto override justifies the executive to act thusly. An override underlines how the Congress feels about something, hindering executive action in the process.

As to Eric Posner, I recall a depressing editorial by him in the NYT some months back supportive of the President's use of power in the "war on terror" etc. The last two cites of writings by him leave with as bad of a taste in my mouth as that piece did.

The linked piece on signing statements (disagreeing with ABA's position) was interesting, but I either didn't buy it or didn't follow it.

In some aspects, you(collectively) seemed to invoke a de minimis concept of un-Constitutional legislation; arguing that a President should not be required to veto detailed and lengthy legislation because he believes only some bits to be un-Constitutional. While I can understand a desire to facilitate Executive ease with a proportionality approach, to me this flies in the face of Executive duty and the Oath of office.

To be honest, I have a hard time thinking in terms of de minimis violations of the Constitution, although I will concede they crop up here and there. Even for more than de minimis encroahcments, however, you(collectively) seem to still believe that signing statements are an alternative to veto. I just don't follow this.

The Executive Branch, as the enforcement branch, has wide discretion in some areas, and lesser discretion in others, as to enforcment. There is a pretty lengthy body of case law ad several statutoy efforts, to address the areas of Executive banch discretion in different areas

Signing statements that fall into the policy/discretion parameters are not much different, in my view, than a policy memo circulated soon after the signing and should not have much other or different interpretation. Signing statements used to address matters of discretion in the Executive arising from the legislation seem pretty appropriate to me.

On the other hand, everyone in government, and in particular the Executive Branch that will be called upon for enforcment, has a duty to object to unconstitutional legislation in the manner provided to them by the Constituiton. I think the Constituiton, duties and oath of office require a President who is faced with what he believes to be unconsitutional provisions of law to veto them. How could it not?

It may be unpleasant, it may be detrimental to moving other policy items forward, etc. but I read any other analsyis as slightly more sophisticated invocations of, "Gee Ma, do I HAVE to?"

Yeah. You [the Executive] do. That's what it means to take an Oath of Office and to be charged with duties, not merely given powers with no correlatives. It also means that if your veto is overriden, you have a duty to take the legislation up for judicial reveiw in whatever mechanism best allows for that review.

It is all part of the job and constructs of a de minimis impact, or of adverse policy effects caused by having to send back the Constituional provisions with the non--- those don't seem to me to have a Constitutional or legal basis. They seem to be more of a, things work easier if we just don't bother with vetos and judicial review of legislation - just stick to signing statement fiats. It is an impermissible, IMO, avoidance of the the trifurcation of goverment to allow this kind of approach - allowing a President to have non-veto Executive overruling of Congressional legislaton - forever insulated from judicial reveiw by a DOJ that follows the President's orders with respect to enforcement. No matter what the pro- arguments all, it seems doubtful that they could outweigh the con.

While it might be painful in places and at first, over the long haul things work better when the problems are addressed head on. A Congress that realizes necessary legislation may come back will end up drafting more carefully; an Executive knowing that it will be bound unless it has vetoed and has taken legislation up for review (to be told yeah or nay on interpreation) will spend less time avoiding the effect of, and more time effecting, legislation.

I think that using the areas of discretion allocated to the Executive branch by the types, or directions, of the legislation as the limiting factor on the breadth of signing statements for such legislation, is the most correct approach.


What "ties" does Eric Posner have to Republican administration, other than that he is conservative? Has he ever had an official gov't position? Or is this the reporter's way to subtly trying to discredit him?

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