Bar association task force urges Congress to push for judicial review of Bush signing statements
George W. Bush did not invent the document known as the presidential signing statement; he inherited it. Franklin Roosevelt, Bill Clinton, and even James Monroe authored the statements, which spell out the president's sometimes controversial interpretation of the very law he's signing. But no president has used signing statements quite like Bush.
Although the president has not issued more statements in total than any other president, he has challenged more than 750 laws in more than 100 signing statements. And he has used them to, in effect, challenge parts of laws, and challenge them more aggressively, than any president before him. Bush's liberal use of those statements first attracted attention in December 2005, when he signed a torture ban—but then added a statement reserving the right not to enforce the ban, alongside his signature. Since then, Congress has held a hearing to investigate Bush's use of the statements, a bipartisan advocacy group has condemned their use, and Democratic Rep. Barney Frank has introduced a bill that would allow Congress to override content in them that contradicts signed legislation.
Now, U.S. News has learned, an American Bar Association task force is set to suggest even stronger action. In a report to be released Monday, the task force will recommend that Congress pass legislation providing for some sort of judicial review of the signing statements. Some task force members want to simply give Congress the right to sue over the signing statements; other task force members will not characterize what sort of judicial review might ultimately emerge.
To mount a legal case, a person or group must have been granted "standing," or the right to file a lawsuit. Current law does not grant members of Congress such a right, and recent Supreme Court decisions have denied it in all but very exceptional cases. But Congress could consider bypassing that hurdle by writing a law to give its members the right to sue, a resolution in the task force's report declares, a source familiar with the task force report told U.S. News.
The resolution cannot become official aba policy without approval from the group's legislative body, scheduled to meet in Hawaii next month. The resolution cannot become official aba policy without approval from the group's legislative body, scheduled to meet in Hawaii next month.
There, the ABA will review four other resolutions, three directed to the president and one to Congress. The first three ask the president not to use signing statements as a kind of shortcut veto. If the president thinks a bill or part of a bill is unconstitutional, one of these resolution declares, he should feel free to say so—but he should do that before he signs it, not after. The other resolution suggests Congress craft legislation to make signing statements more transparent and more accessible. Currently, signing statements are not sent directly to Congress, and they are often ambiguous in their intent. But a law could require the president to write a report explaining exactly how and why he plans not to enforce a law, if he plans not to enforce it, for every signing statement he issues.
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