This week the American Bar Association issued a report from its "Task Force on Presidential Signing Statements and the Separation of Powers Doctrine." The report expresses alarm, and makes five recommendations, regarding the presidential practice of attaching accompanying commentary and administrative instructions to bills signed into law.

Thinking Out Loud:

While I have only skimmed the ABA report (and seen a few interviews with task force members and Michael Greco, ABA president), several thoughts occur to me:

1. The Preservation of the Separation of Powers is a noble pursuit.

2. I am pleased that the ABA, the press and the Senate Judiciary Committee are investigating and engaging the executive on this important development in the relationship between the branches.

3. The Task Force offers five resolutions that strike me, for the most part, as common sense recommendations.

4. The Task Force claims bipartisanship (and I recognize Bruce Fein and Mickey Edwards as members ostensibly disinclined to associate themselves with an anti-Bush lynch mob). Nevertheless, There are enough red flags to make me suspicious. Feel free to attach any relevant commentary on the composition of this committee.

5. Debatable Interpretation of History.

James II seems to be a talking point (as I see him offered in every interview as a point of reference). According to the "historical" section, sub-section B, entitled, ironically, "Separation of Powers and the Intent of the Framers," the report argues that the English King's "non-enforcement of laws made [by Parliament] ultimately occasioned his dethronement." Somebody call Jim Vardaman to see if there is more to this story. I suppose there is truth in that reading--but the assertion simplifies and dilutes the history of the Stuarts and the evolving culture of parliamentary government in England to the point of confusion. More importantly, the analogy to George Bush is so strained and polemical that it is utterly valueless in a reasonable conversation.

Judicial Review. Much of the report seems to assume that Judicial Review is mandated by the Constitution (or, as these newly minted "originalists" like to say, the "intent of the framers"). While I like Judicial Review, and I acknowledge that the idea came from the framers (in a Federalist Essay), no one can argue that Judicial Review was the clear intent of the framers. Suffice it to say that Judicial Review developed over time and ultimately won out as the method by which we decide troubling Constitutional issues. Other possible arbiters of the Constitution included state interposition (nullification) and the Presidential Veto alone.

An aside: Are these folks really arguing that Constitutional government is not an evolving process? If so, that is big news from the ABA.

6. Ironically, the ABA report begins with a quote from a journalist quoting "legal scholars," which declares that the President's actions "represent a concerted effort to expand his power at the expense of the Congress, upsetting the balance of between the branches of government." The report proceeds to confirm this assertion in every possible way (without one argument to the contrary), which makes me wonder how circular this process might have been. Moreover, the report is drafted by lawyers, which means it is always written in the voice of an advocate; that is, the degree of certitude is 110 percent.

7. The "unitary executive" theory emerges as a menacing presence in the Bush White House. The report warns ominously that: "in the Bush II Administration all bills are routed through Vice President Cheney's office to be searched for perceived threats to the "unitary executive"--the theory that the President has the sole power to control the execution of powers delegated to him in the Constitution and encapsulated in the Commander in Chief powers in his constitutional mandate to see that the laws are faithfully executed." Wow! Sounds like there may be a conspiracy afoot.

For more information: the paragraph below from Dan Froomkin's extremely instructive Washington Post column (Monday, 24 July) is packed full of resources and a great place to start:


"Here is the full report. Here is some background on the panel's members. Here is a news release . I wrote at some length about signing statements last month over at . Here is Charlie Savage 's seminal Boston Globe piece from April. Here is an archive of signing statements."