How to gag a president

Paul Greenberg
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Posted: Aug 09, 2006 12:01 AM

Other presidents of the United States would on occasion attach statements to their signatures when signing a bill into law; this one has made it a regular habit.

At last count, the Hon. George W. Bush had issued hundreds of such statements to explain his interpretation of the law he was approving at the time - or to express his reservations about it. The reservations usually have to do with maintaining the chief executive's constitutional authority, especially when it comes to matters of national security.

There's plenty of precedent for such statements. As far back as 1830, Andrew Jackson - a patron saint of the Democratic Party - would get a mite tetchy when he felt congressional Whigs were usurping his presidential authority under the Constitution, and would say so.

Wartime tends to heighten such concerns on the part of the executive branch. Especially in a war like this one, which began with a devastating attack on the home front, and in which the enemy remains both nebulous and dangerous.

Arlen Specter, the chairman of the Senate Judiciary Committee, is threatening to have Congress sue the president if he keeps issuing such statements. But on what grounds? Even a president of the United States has a right to free speech. Or doesn't the First Amendment apply to presidents of the United States?

Predictably enough, the American Bar Association sounds peeved, too. Where this president is concerned, it usually does. The ABA was thoroughly politicized some time ago. By now it can be counted on to regularly oppose his politics, judicial nominees, and even his right to make a statement, at least if he attaches it to a bill he's just signed into law.

According to Michael Greco, the bar association's current president, such a statement "hamstrings Congress because Congress cannot respond to a signing statement."

Really? What's stopping it? Instead of suing the president, why doesn't Sen. Specter just issue a statement of his own in rebuttal?

That way, should there be a question about what Congress meant by passing a particular law, or whether the president is doing enough to enforce it, the judiciary can take all of that into consideration if and when such a dispute reaches the courts, as it usually does. (This is called determining intent.)

In any event, whatever statement the president issues on signing a law, he is still obliged under the Constitution "to take Care that the Laws be faithfully executed . . . ." His stating his opinion of the law doesn't relieve him of that duty.

It's hard to see why Sen. Specter is getting so exercised. Making a statement is a president's right, isn't it? Is he upset because this president may be using these signing statements as a legal strategy? For they could lay the basis for a legal defense should the chief executive be accused of not enforcing part of a statute he believes unconstitutional.

The president's critics haven't been shy about making statements of their own. Consider the intemperate claims made by the ABA's president accusing Mr. Bush of undermining the rule of law, violating the Constitution, challenging the separation of powers, upsetting the checks and balances of the American system, and cheating at craps. (Okay, I made that last one up, but you get the general tone of the ABA's scattershot blast.)

Some of us are so old we can actually remember a time when the American Bar Association was a respected, nonpartisan professional organization with no political axes to grind. These days it seems to do little but.

So what course does the president of the American Bar Association recommend in response to the signing statements that this president (and his predecessors) have issued? Would he bar a president of the United States from making such statements?

Goodness. That sounds very much like a gag order. Are the president's arguments so strong that Sen. Specter and the leadership of the ABA can think of no better response than censorship? To paraphrase Ring Lardner: Shut up, they explain.

Any political remedy that involves preventing someone with an unwelcome opinion from expressing it sounds worse than the disease. Even if that someone is the president of the United States and he's signing a bill into law at the time.

If, instead of vetoing a disagreeable bill, a president chooses to sign it into law for reasons of his own, like agreeing with some of it, then why not let him express his reservations? And leave any disputes over interpretation to the courts. Isn't that what the rule of law is about?

Anyway, what more does Congress want? It already gets to write the law itself.

His critics certainly have a point when they say the president doesn't determine what the Constitution says, but neither does Congress or the ABA.