Lawyers Reproach President Bush

An American Bar Association (ABA) taskforce that included Climenko Professor of Law Charles J. Ogletree, Jr. and former Harvard Law professor Kathleen M. Sullivan rebuked President Bush for the scope and number of his signing statements, which give the president the right to disregard provisions of laws he deems unconstitutional.

The taskforce argued that signing statements are “contrary to the rule of law and our constitutional system of separation of powers” before issuing two recommendations each for the president and Congress.

The committee, which also included Yale Law Dean Harold H. Koh ’75—who is a member of the Harvard Board of Overseers, the University’s second highest governing body—urged the president to “communicate [his] concerns to Congress” about bills he perceives as unconstitutional, and to make use of veto power if he deems all or part of a bill unconstitutional.

The taskforce recommended that Congress enact legislation requiring the President “promptly to submit to [it] an official copy of all signing statements.” Currently the statements are often quietly filed in the federal record.

Second, it recommended judicial review of the extent to which signing statements are constitutionally permissible.

The ABA convened the twelve-member taskforce after the Boston Globe published an exposé of the practice in April. His report showed that since taking office, Bush has filed over 160 signing statements, challenging the constitutionality of hundreds of statutes.

The report noted that past presidents have used signing statements to “explain the president’s reasons for signing a bill into law,” but that all the presidents before Bush had only challenged a combined 600 laws.

In his five years in office, Bush has challenged more than 800 laws. Most of these challenges have been predicated on the claim that they contain congressional impingements on the president’s power in realms such as foreign affairs and national security.

The taskforce singled out one of Bush’s more famous signing statements, one appended to the so-called “McCain amendment” forbidding torture.

“The president said in his statement that as Commander in Chief he could waive any such requirement if necessary to prevent terrorist attacks,” the report said.

The taskforce said the existence of the president’s veto power and his duty to execute the laws mean that Bush’s use of signing statements violates his constitutional prerogatives.

“The original intent of the framers was to require the president to either sign or veto a bill presented by Congress,” the report said, noting that the president vetoed his first bill just this month. “The president must defend the entire Constitution, and that includes the [stipulation] that the president ‘shall take Care that the Laws be faithfully executed.’”

KEEPING OUT OF THE STOCKS

In a rebuttal posted on the website of the National Review, M. Edward Whelan III ’81—who is the president of the Ethics and Public Policy Center—took issue with the taskforce’s conclusions.

In particular, he attacked the ideas that the president must either veto a bill or enforce all of its provisions—unless it is overturned by the courts—and that he must enforce a law he deems unconstitutional.

“The Constitution is one of the ‘Laws’ that the president ‘shall take Care...be faithfully executed,’” Whelan wrote. “When a bill has become law, the president has an obligation under the Take Care Clause not to enforce provisions of that bill that are unconstitutional.”

To demonstrate his point, Whelan posed the hypothetical of a defense appropriations bill providing that “ABA President Michael Greco [be] immediately detained, displayed in public stocks, and subjected to ridicule until he confesses to what a partisan hack he is.”

“The President recognizes that this provision is unconstitutional,” Whelan wrote. “Can anyone seriously maintain that the president’s only constitutional option...is to implement that provision until such time as some court rules it unconstitutional?”

In response, Ogletree said in an interview Tuesday that the president has a duty to “explain why he believes a law to be unconstitutional” so “that Congress has a chance to address the criticisms”—that is, the president must tell Congress why he believes the hypothetical anti-Greco provision is unconstitutional.

He added that Whelan was correct that the “president has constitutional authority that he needs to exercise,” but said that the number and scope of laws Bush has challenged exceeds his authority to interpret laws.

He also said that while the president has authority to interpret laws, the “ultimate authority is not the executive branch or the legislative branch, but is the judicial branch.”

—Staff writer Paras D. Bhayani can be reached at pbhayani@fas.harvard.edu.