Law panel criticizes Bush for saying he can ignore bills he's signing into law

WASHINGTON — A panel of legal scholars and lawyers assembled by the American Bar Association is sharply criticizing the use of "signing statements" by President Bush that assert his right to ignore or not enforce laws passed by Congress.

In a report to be issued today, the ABA task force said Bush has lodged more challenges to provisions of laws than all previous presidents combined.

The panel members described the development as a serious threat to the Constitution's system of checks and balances, and they urged Congress to pass legislation permitting court review of such statements.

"The president is indicating that he will not either enforce part or the entirety of congressional bills," said ABA President Michael Greco, a Massachusetts attorney. "We will be close to a constitutional crisis if this issue ... is left unchecked."

The report seemed likely to fuel the controversy over signing statements, which Bush has used to challenge laws ranging from a congressional ban on torture and a request for data on the Patriot Act, to whistle-blower protections and the banning of U.S. troops in fighting rebels in Colombia.

Administration officials describe them as a part of routine presidential practice.

"Presidents have issued signing statements since the early days of our country," White House spokeswoman Dana Perino said Sunday. "President Bush's signing statements are consistent with prior administrations' signing statements. He is exercising a legitimate power in a legitimate way."

Use of statements

Presidents have long issued signing statements. In 1830, Andrew Jackson signed a bill to build a road from Detroit to Chicago but attached a statement insisting that the road not extend beyond Michigan.

In more recent history:

• Former President Bush issued 232 signing statements during his first term, compared with the 71 of President Reagan's two terms.

• President Clinton issued 80 in his two terms.

• The Justice Department has said President George W. Bush has issued 110 signing statements. The ABA cites research that Bush's collective challenges to provisions of laws number 800.

Bush has vetoed only one bill since taking office, a measure Congress approved last week that would have relaxed his limits on federal funding for human embryonic stem-cell research. But he has on many occasions signed bills, then issued statements reserving the right not to enforce or execute parts of the new laws, on the grounds that they infringe on presidential authority or violate constitutional provisions.

Perhaps the most prominent example was legislation last year banning cruel, inhuman or degrading treatment of prisoners at U.S. detention centers. Bush signed the bill into law after a struggle with Congress, then followed it with an official statement indicating he might waive the ban under his constitutional authority if necessary to prevent a terrorist attack.

Determining the rarity of this approach is a matter of dispute. The Justice Department has said Bush has issued 110 signing statements, compared with President Clinton's 80.

In testimony last month before the Senate Judiciary Committee, Deputy Assistant Attorney General Michelle Boardman denied Bush was trying to "cherry-pick" among parts of a duly enacted law. "Presidential signing statements are, rather, a statement by the president explaining his interpretation of and responsibilities under the law," she said.

The ABA task force, chaired by prominent Miami attorney Neil Sonnett, cites research that Bush in his signing statements has collectively lodged more than 800 challenges to provisions of laws passed by Congress.

Task-force members said the nature of the challenges has also changed under Bush, with many objections being lodged under the "unitary-executive" theory, the idea that congressional checks on the president's power are limited.

If the president has constitutional problems with a bill, the task force said, he should convey those concerns to Congress before it reaches his desk. The panel said signing statements should not be a substitute for vetoing bills the president considers unconstitutional.

"The President's constitutional duty is to enforce laws he has signed into being unless and until they are held unconstitutional by the Supreme Court or a subordinate tribunal," panel members wrote. "The Constitution is not what the President says it is."

The White House's Perino said: "The president greatly respects the roles of the branches of our government, and for anyone to suggest otherwise is ignoring the facts of our continued efforts to work with the Hill on all matters of legislation."

The impact of the report on the administration is uncertain, given the belief by many conservatives and some members of the Bush administration that the ABA has a liberal bias. Early in its tenure, the administration ended the association's special role in evaluating judicial nominations.

The 10-member ABA panel includes at least three well-known conservatives or Republicans: former Congressman Mickey Edwards, R-Okla.; former FBI Director William Sessions; and former Reagan Justice Department member Bruce Fein. It also includes former appellate Judge Patricia Wald, former Stanford Law School Dean Kathleen Sullivan and Harvard law professor Charles J. Ogletree Jr.

The full ABA will consider the report at its meeting next month.