It’s a Sign: The American Bar Association Questions Signing Statements

What is the difference between a president and a king? How should a president’s powers be limited and why? Who decides when the president is overstepping the boundaries and what should be done?

On July 23, 2006, the American Bar Association (ABA) released a report on the imbalance of power among the three branches of government. The ABA asserts that the executive branch has grown more powerful than the Constitution allows and recommends a judicial review of presidential objections to portions of bills, called "signing statements."

The ABA says that these statements often violate the Constitution because they accept only parts of a bill, but not the bill as a whole. Although the president has veto power, he or she cannot reject some provisions and not others. Such line-item vetoes reinterpret the law and do not allow Congress a chance to override the president’s will, which is an integral part of the balance of powers laid out in the Constitution.

The ABA reports that President George W. Bush has issued over 800 signing statements during his presidency, raising constitutional objections to over 100 passed laws.

For example, after signing legislation that outlawed torture of detainees, he issued a signing statement that reserved the right to sidestep the law under his powers as commander in chief: ''The executive branch shall construe [the law] in a manner consistent with the constitutional authority of the President . . . as Commander in Chief," Bush wrote, adding that this approach ''will assist in achieving the shared objective of the Congress and the President . . . of protecting the American people from further terrorist attacks."

Some legal experts say that this language gives President Bush the room to bypass the law, though White House officials insist that this would happen only when national security is at stake. The critical point is that the President and his administration would decide what constitutes a national security emergency.

Not just about Bush

But the ABA contends that its report is not simply a response to George W. Bush’s presidency, but a reaction to an historical problem.

Signing statements in the U.S. go all the way back to James Monroe, the 5th president. Throughout the years, presidents have used signing statements to fragment laws and reinterpret them.

During the Reagan administration, signing statements became strategic weapons of influence that helped the executive branch to maintain its prerogatives. The Supreme Court even began to cite signing statements in its decisions. Presidents George Bush Sr. and Bill Clinton also used signing statements to strategic ends, but no one has used them as often as the second Bush administration.

President George W. Bush has produced more signing statements than all the previous presidents combined.

ABA takes a stand

According to the report, the American Bar Association, which is a bipartisan organization, officially opposes presidential signing statements because they violate Article I, section 7 of the Constitution - the separation of powers.

The ABA encourages Bush and future presidents to communicate concerns with Congress before a bill passes and to veto bills that remain objectionable. The report also asks Congress to demand official copies of all signing statements along with the legal basis for the president’s assertion of power. The ABA would also like to see legislation that enables a judicial review of signing statements.

Continuing the discussion on presidential power

The framers of the Constitution intended for the legislative branch to be the most powerful actor in the federal government with the president empowered to execute the laws, not create or deviate from them. Because the founders were clearly concerned about the idea of a king with elite powers, they did not grant them to the president.

However, over time, the role of the president has become larger and more powerful. A forceful executive branch certainly did not start with the W. Bush administration.

For more on this, listen to WomenMatter’s interview with Geoffrey Stone, Constitutional scholar from the University of Chicago.

What do you think?

What do you think about signing statements? Should Congress draft legislation to limit them? How do you understand the balance of powers? Do you think any one branch has more power than the others?

Your input matters

Your representatives DO care what you think. Especially now -- 2006 is an election year and many representatives will be looking to reconnect with their constituents. Let your congressmen and women know what you think! Give your senators a piece of your mind! To find your reps, click here.

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Posted on: 7/27/2006