Senator Considers Suit Over Bush Law Challenge

Senator considers suit over Bush law challenge

http://www.boston.com/news/nation/wa...law_challenge/

(Gold9472: What's to consider?)

By Charlie Savage, Globe Staff | June 28, 2006

WASHINGTON -- The Senate Judiciary Committee chairman, Arlen Specter, said yesterday that he is "seriously considering" filing legislation to give Congress legal standing to sue President Bush over his use of signing statements to reserve the right to bypass laws.

Specter, a Pennsylvania Republican, made his comments after a Judiciary Committee hearing on signing statements, which are official documents that Bush has used to challenge the constitutionality of more than 750 laws when signing legislation .

Bush has issued more signing statements than all previous presidents combined. But he has never vetoed a bill, depriving Congress of any chance to override his judgment. If Congress had the power to sue Bush, Specter said, the Supreme Court could determine whether the president's objections are valid under the Constitution.

"There is a sense that the president has taken the signing statements far beyond the customary purviews," Specter said at the hearing. He added that "there's a real issue here as to whether the president may, in effect, cherry-pick the provisions he likes, excluding the provisions he doesn't like. . . . The president has the option under the Constitution to veto or not."

But a lawyer for the administration, Deputy Assistant Attorney General Michelle Boardman, testified that Bush has shown Congress respect by using signing statements instead of vetoes when he has concerns about parts of bills.

"Respect for the legislative branch is not shown through [making a] veto," Boardman argued. "Respect for the legislative branch, when we have a well-crafted bill, the majority of which is constitutional, is shown when the president chooses to construe a particular statement in keeping with the Constitution, as opposed to defeating an entire bill that would serve the nation."

Boardman said the president has the power and responsibility to bypass any statute that conflicts with the Constitution, even in cases "where the Supreme Court has yet to rule on an issue, but the president has determined that a statutory law violates the Constitution."

She also stressed that previous presidents had used signing statements to raise constitutional concerns about provisions in legislation they were signing rather than vetoing the entire bill.

But Senator Russ Feingold, Democrat of Wisconsin, said the administration has used that power "far more often" than any predecessor. Moreover, Feingold said, Bush "has done so to advance a view of executive power that, as far as I can tell, has no bounds."

He added that the White House has "assigned itself the sole responsibility for deciding which laws it will comply with, and in the process has taken upon itself the powers of all three branches of government."

Throughout the hearing, Boardman received little friendly questioning from the dais beyond that of Senator John Cornyn, Republican of Texas, who said he didn't know why Bush's signing statements were "controversial at all" since other presidents also issued them, including President Clinton, who challenged 140 provisions over eight years.

Cornyn also noted that most of the time, the signing statements involve legal disagreements that will never be resolved by the Supreme Court because nobody has standing to file a lawsuit over them. Specter later said that he believed Congress could pass a law giving itself, as the author of laws, standing to sue Bush over his signing statements. It was unclear, however, whether there would be enough votes in Congress to pass such a bill.

Cornyn was the only Republican other than Specter to attend the hearing. By contrast, five of the eight Democrats on the panel showed up.

The Democrats repeatedly praised Specter, as a Republican, for holding the hearing. The ranking Democrat, Senator Patrick Leahy of Vermont, said that the administration and its defenders were showing "utter contempt" for the concerns of Congress about Bush's expansive theory about his own constitutional powers.

"Ms. Boardman, I wish you well," Leahy said. "But, you know, it's almost irrelevant what you say because, once again, this administration has said, even with a rubber-stamp Republican Congress, they don't care what we think. They're going to decide what laws to follow and what laws to disobey, and . . . nobody up here will call them on it."

Despite the uneven attendance, the hearing served to focus greater attention on the administration's legal claims. At the White House, Press Secretary Tony Snow denied that Bush was using signing statements as backdoor way to "win" on issues after failing to persuade Congress to write legislation to his liking.

Snow also insisted that the president was merely fixing "relatively minor" constitutional flaws that Congress had "unwittingly" included in bills during the lawmaking process.

But in the Judiciary Committee hearing, Specter and several other senators focused on several high-profile signing statements in which Bush contradicted the direct intent of Congress. In particular, the committee repeatedly brought up Bush's signing statement in December on a torture ban.

Congress voted overwhelmingly to outlaw all forms of abusive interrogation techniques by US officials. Bush and Vice President Dick Cheney fought the ban, asking Congress to allow the president to waive the ban under certain circumstances to preserve the president's "flexibility" in the war on terrorism. But Congress rejected the waiver, passing an absolute ban in all circumstances.

When it became clear that the torture ban would pass, Bush called a press conference and said he supported it. But later, he issued a signing statement saying that he had the constitutional power, as commander-in-chief, to waive the ban in a situation where he felt harsh interrogation techniques were necessary to protect national security.

The committee also heard testimony from legal scholars on both sides of the issue.

Christopher Yoo , a Vanderbilt University law professor, and Nicholas Rosenkranz , a Georgetown University law professor who formerly worked in the Bush Justice Department, agreed with Boardman that there was nothing exceptional or inappropriate about the way Bush has used signing statements.

"The recent brouhaha over presidential signing statements is largely unwarranted," Rosenkranz said. "Signing statements are an appropriate means by which the president fulfills his constitutional duty to take care that the laws be faithfully executed."

Harvard Law School professor Charles Ogletree and former Reagan administration lawyer Bruce Fein testified that Bush's use of signing statements had gone too far, endangering the constitutional system of checks and balances.

"This excessive exercise of executive power, coupled with the failure to use the authorized veto power, creates serious issues of constitutional magnitude, and requires a legislative response," Ogletree said.