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President’s Use of ‘Signing Statements’ Raises Constitutional Concerns

The American Bar Association said President Bush's use of "signing statements," which allow him to sign a bill into law but not enforce certain provisions, disregards the rule of law and the separation of powers. Legal experts discuss the implications.

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  • RAY SUAREZ:

    The president's veto of a stem-cell research bill last week was the first of his presidency. But more often than other presidents, George W. Bush has claimed the constitutional authority to ignore, reject, or interpret bills after signing them into law.

    He's done so by issuing "signing statements" with many of the bills he's signed. Last December, when President Bush signed a bill outlawing the torture of military-held detainees, the attached signing statement left open his prerogative to ignore that restriction.

    The president wrote, "The executive branch shall construe the act in a matter consistent with the constitutional authority of the president as commander in chief, which will assist in achieving the shared objective of the Congress and the president of protecting the American people from further terrorist attacks."

    An American Bar Association task force says the president has issued more than 800 challenges to legislation through signing statements. The ABA task force released a report charging the president's use of signing statements undermines the rule of law and the separation of powers.

    With us to explain is Bruce Fein, former associate deputy attorney general during the Reagan administration. He was a member of the ABA's task force.

    Also with us, Christopher Yoo, professor of law at Vanderbilt University. He testified recently before the Senate Judiciary Committee on this issue.

    And, Professor Yoo, let me start with you. What is a signing statement? And does it have the same force of law as the very bill that it's issued in tandem with?

    CHRISTOPHER YOO, Professor of Law, Vanderbilt University: From my perspective as a scholar who's studied the history of signing statements and the co-author of a forthcoming book on the history of presidential power, signing statements are a very old phenomenon that goes back to the days of James Monroe, Andrew Jackson, the earliest days of the republic.

    A signing statement is a statement penned by the Justice Department or the White House counsel's office, signed by the president, and issued when a statute is signed into law, which is the last step of making a statute become law. Does it have the authority of law? The answer is: It depends.

    I think that in many ways this issue is much overblown. Many parts of a signing statement are completely uncontroversial, many that congratulate supporters or thanks people for their support or explains what the likely impact of the bill is going to be.

    Where it gets hard is when a statute is unclear. Everyone agrees that when a statute is completely clear, there is no room for interpretation and everyone, the president, the courts, common citizens alike are under an obligation to follow the law.

    The problem is the statutes are often not as clear as we would like. Congress's attitude is to leave explanation of what a statute means up to the courts and to determine if a statute might or might not be unconstitutional. They are inclined to leave that to the courts, as well.

    The problem is, before the courts get it, the executive branch, the president has to confront those issues first, and they often have to take a position on the constitutionality on a statute or what a statute means.

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