Bar association task force urges Congress to push for judicial review of Bush signing statements
The statement Bush attached to the 2005 torture law is a case study: Like many of his statements, first it suggests part of the bill violates the president's constitutional authority, and then it declares that the president will only enforce that bill "in a manner consistent with the Constitution." That signing statement, like many others, also references the so-called unitary executive theory, a lodestar in the Bush administration's case for expanding the power of the presidency. The theory holds that because the president is solely in charge of the executive branch, Congress can't tell him how to enforce its laws, whom to pick for what jobs, or when and how to report to Congress.
Indeed, many of the statements assert the executive branch's ascendancy over the legislative. One statement indicated Bush's intent not to comply with parts of the usa Patriot Act he judged unconstitutional, including requirements to report to Congress about possible violations of search and seizure laws. Others challenge laws intended to support affirmative action, protect whistleblowers, and forbid the use of illegally collected intelligence.
A staple of Bush's signing statements is the climate of war. The 2005 statement on torture argues that limiting the ban helps "protect ... the American people from further terrorist attacks." His statement on the recent Patriot Act reauthorization explains that the administration will withhold requested information—if disclosing the information "could impair foreign relations [or] national security." Administration officials also believe the wartime climate has lent an urgency to its reassertion of executive power. Convinced that a series of events—first Watergate, then Vietnam, and finally Iran-contra—have corroded the power of the presidency, and fearful that only a fully empowered president can defeat terrorism, advocates of the doctrine embrace it as a matter of life or death.
But there's no shortage of folks who disagree. "It's hard to imagine the abandonment of conservative principles in his lawlessness," said Bruce Fein, a member of the task force who voted for Bush twice and served as associate deputy attorney general under President Ronald Reagan.
At a hearing he called in late in late June to investigate the statements, Sen. Arlen Specter interrogated four testifying law professors about one remedy in particular: legislation that would allow Congress or its members to sue the president for his use of statements. Fein has been drafting such legislation ever since.
Fein's plan would begin with Congress passing legislation giving itself authority to sue the president over a statement. Then it would proceed with a lawsuit, focused on a particular statement. Under the plan, that suit would move eventually to the Supreme Court, which would then set precedent in whatever it decided.
"I think there are a lot of people who are prepared to argue the case against signing statements," said Phillip Cooper, a professor at Portland State University who has studied the statements. "But in order for the attorneys who are very much focused on this subject to do it, they're going to have to find a client who has standing to sue."
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