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The Clock is Ticking

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As the aba house of delegates worked through a lengthy agenda in Honolulu, the issue looming over the proceedings concerned a long standing tool of U.S. presidents that has become increasingly controversial during the Bush administration.

So the impassioned debate on the use of signing statements was no surprise. But as things turned out, the House’s final vote to adopt a policy that essentially challenges how President Bush often has used those statements—to signal an intent to disregard some bills he has signed—turned out to be anticlimactic.

Both sides made timing a key element of their arguments as the debate centered on a motion to postpone consideration of the recommendation.

The recommendation was developed by the Task Force on Presidential Signing Statements and the Separation of Powers Doctrine. ABA President Michael S. Greco of Boston (whose term ended at the close of the annual meeting) appointed the task force in June after news reports that President Bush has claimed authority to disregard hundreds of laws enacted by Congress since he took office in January 2001. During the House debate, proponents of the measure said Bush’s signing statements now number more than 800, compared to about 600 for all the presidents who came before him.

“We’re not trying to declare signing statements unconstitutional,” said task force chair Neal R. Sonnett of Miami during the House debate. “We believe only the misuse of signing statements must be condemned. This is a critical, critical issue, one that the ABA must be counted on, and counted on now.”

But some delegates took issue with such an urgent time frame. Mississippi state delegate W. Scott Welch III of Jackson moved to postpone the task force’s recommendation indefinitely, which, in the parlance of House procedure, amounts to killing a measure unless it’s revived by a new recommendation at a later meeting.

Welch said the task force’s recommendation was filed as a late report that delegates did not have adequate time to consider before the House convened in Honolulu. Further, said Welch, how presidents use signing statements is not germane to the ABA’s mission of speaking on issues directly related to the justice system.

“We are seeking to restrict the right of a particular president to exercise his constitutional right to freedom of speech,” said Welch. The constitutionality of signing statements should be a matter for the courts, he said.

Arguing against the motion to postpone, Greco said, “The protection of the Constitution of the United States and separation of powers is germane” to the ABA’s mission. “It’s never the wrong time to do the right thing. The American people are waiting for your vote.”

The House voted 272-99 against the motion to postpone indefinitely, then adopted the substance of the recommendation in a voice vote.

Easier Road to Review

The policy “opposes, as contrary to the rule of law and our constitutional system of separation of powers, the misuse of presidential signing statements by claiming the authority or stating the intention to disregard or decline to enforce all or part of a law the president has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress.”

The policy urges the president to communicate concerns about the constitutionality of any pending bills to Congress before passage and to confine the content of signing statements to views regarding the meaning, purpose and significance of bills. In addition, the policy urges Congress to enact legislation to make it easier for interested parties to seek judicial review of signing statements in which a president expresses the intent to disregard or decline to enforce a law he or she has signed.

In late July, Senate Judiciary Committee Chairman Arlen Specter, R Pa., introduced a bill that would give Congress legal standing to challenge presidential signing statements in the federal courts. The measure’s outlook is uncertain.

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