Bush and the rule of law, next chapter

Writer's note: Blogspot server hassles prevented me from posting this earlier today. Apologies. However, I have finally expanded my blogroll, here on the home page. Feel free to partake, on the condition that you return.


It has been clear for a long time that President Bush doesn’t like lawyers – unless they’re on his payroll, crafting arguments for the unfettered exercise of executive power. He has often said, with a touch of pride, that he’s not a lawyer, and in campaigns he has generally dismissed “trial lawyers” as greedy vultures who game the system for big paydays.

So he undoubtedly will dislike the blue-ribbon report released today by the American Bar Association, which assails him as a threat to democracy, “a threat to the rule of law,” and as a president who disrespects “our constitutional system of separation of powers.” Most likely he’ll just ignore it, but I happen to think this report will be of interest to millions of his fellow citizens.

It’s interesting for a number of reasons. First, it arrives just two weeks after the U.S. Supreme Court (more lawyers) decreed that Bush can’t simply do whatever he wants in violation of international law and the separation of powers.

Second, it has been authored by a bipartisan ABA task force that includes a number of notables from the conservative camp, such as Bruce Fein (who held two high-ranking Justice Department posts under Ronald Reagan), Mickey Edwards (former House Republican leader from 1977 to 1992, and a founding trustee of the Heritage Foundation), not to mention former FBI director William Sessions, who served under the first George Bush.

And third, it targets one of the most compelling – yet unsexy and therefore largely overlooked – issues in the growing debate over whether Bush is engaged in a dangerous power grab. It deals with Bush’s frequent use of “signing statements,” which often assert, in so many dry words, that the president really isn’t required to obey the bills that he is signing into law.

I mentioned this issue in passing the other day. Bush has now issued more than 800 signing statements – 200 more than all other presidents combined (and most of those were benign). The ABA task force, which was convened in June after the Boston Globe and now-defunct Knight Ridder exposed the practice, critiques Bush in detail and basically concludes that Congress needs to fight back by passing a law that would allow lawmakers to sue Bush in court for his behavior.

In other words, these pillars of the legal establishment are arguing that this particular president is potentially wreaking havoc with the Constitution, and that the only way to thwart him is for Congress to take drastic action that could put it on a collision course with the White House. I haven’t heard talk like this from the legal establishment since Richard Nixon's executive excesses during Watergate.

“This report,” says ABA president Michael Greco, “raises serious concerns crucial to the survival of our democracy. If left unchecked, the president’s practice does grave harm to the separation of powers doctrine, and the system of checks and balances, that have sustained our democracy for more than two centuries. Immediate action is required to address this threat to the Constitution and to the rule of law in our country.”

Basically, Bush has been arguing in his signing statements that, as leader of the “unitary executive branch,” he can pick and choose the laws he wishes to obey and enforce, and reserves the right to decide when, how, or if he will report to Congress on what he is doing.

This issue came up last December when he signed a bill curbing his administration’s right to torture terrorist suspects, but stated that he would obey “in a manner consistent with the constitutional authority of the president to supervise the unitary executive branch.” But he has repeatedly taken this stance – defying (among many others) a Patriot Act requirement that he report to Congress about possible search and seizure abuses; a law designed to ban the use of illegally collected intelligence; and a law designed to protect whistleblowers.

The ABA report doesn’t think highly of this “unitary executive” argument. It says the Bush signing statements “generally carry no citation of authority or detailed explanation.” And that’s one reason why task force chairman and former federal prosecutor Neal Sonnett (who is now Jack Abramoff's defense attorney in Florida) contends that Bush’s behavior “poses a threat to the rule of law.”

So what happens next? The ABA report has to be formally adopted by the group’s policy arm, the House of Delegates, on August 7, but it’s doubtful that this will humble the Republican Congress into to taking any action. Bush’s allies on the Hill can always shrug off the whole issue by saying that it’s an irresolvable legal quagmire. The high court has said, as recently as 1997, that Congress has only a very limited right to sue the president in separation of powers cases – so how could Congress write a meaningful law that would expand that right? And wouldn’t Bush have to sign it? Nevertheless, Bruce Fein reportedly is drafting a bill for Arlen Specter’s Senate Judiciary Committee.

Most likely, Bush’s defenders will respond in the usual fashion, by attacking the source of the criticism rather than the criticism itself. They have long dismissed the ABA as unacceptably liberal (Clarence Thomas assailed the ABA back in the '90s), and they dislike the ABA’s longstanding role as a vetter of judicial nominees. Conservative legal groups, notably the Federalist Society, have flourished in recent years as counterweights to the ABA. (For a critical perspective of the ABA's report, see this critique today by think tanker Edward Whalen, a former Justice Department official during Bush's first term. He calls the ABA report "shoddy and irresponsible, and says that the participants "ought to be ashamed of themselves.")

And let’s not forget that Bush did not invent the idea of using the signing statement as a muscle-flexing presidential tactic. Young conservative legal eagles in the Reagan administration were among the first to recognize its possibilities. As one wrote in a 1986 memo, this use of the signing statement would “increase the power of the executive to shape the law.” Today, the author of that memo, Samuel Alito, sits on the U.S. Supreme Court. His presence could prove significant in the years ahead, as legal challenges to Bush's concept of executive power wend their way to the top.