The ABA Agenda

Opinion Journal:

In a letter in today's Wall Street Journal, American Bar Association President Michael Greco objects to our calling his outfit a liberal interest group that should lose its special role in vetting federal judicial nominees. Well, then what are we to make of the ABA's report last week accusing President Bush of abusing his power by explaining how he interprets the bills he signs into law?

In its new "study," the ABA claims that Presidential "signing statements" are "contrary to the rule of law and our constitutional system" and urges Congress to pass a law giving itself the power to challenge them in court. It then advances a theory under which the President has no authority to judge for himself the Constitutionality of the various laws he signs. This is absurd on its face given that the President takes an oath to "preserve, protect and defend the Constitution of the United States," thus obliging him to form an independent opinion of what this requires.

As the ABA study acknowledges, Presidential "signing statements" or their equivalent go back to the early days of the republic. James Monroe signed a bill mandating a reduction in the size of the army but challenged its prescriptions for selecting military officers--asserting the latter was a Presidential duty.

Or consider President Clinton's signing statement on the Consolidated Appropriations Act for 2000. It took issue with "a number of provisions . . . regarding the conduct of foreign affairs that raise serious constitutional concerns"--such as limiting his ability to conduct negotiations on a climate change treaty. "Wherever possible," Mr. Clinton said, "I will construe these provisions to be consistent with my constitutional prerogatives." But "where such a construction is not possible, I will treat them as not interfering with those prerogatives and responsibilities."

All of which would appear to have also made Mr. Clinton a Constitutional scofflaw, according to the ABA. The lawyers' lobby says the Constitution requires the President to "approve or disapprove each bill in its entirety"--with no room to interpret what is often ambiguous legislative language that will typically be disputed in court no matter how the executive branch implements it. Yet only now, when antiwar partisans are trying to embarrass the Bush Administration, does the ABA speak up.

The political agenda of the ABA report is apparent from page one, which quotes from a newspaper report that "President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office." Only in a footnote does it acknowledge the article is wrong--Mr. Bush hasn't signed anywhere near 750 laws--and that what's at issue are various provisions of complicated acts of Congress.

It is hardly surprising that more conflicts over executive and Congressional powers are arising now, in wartime. The essence of the separation of powers is that each of the three branches has core duties that it is obliged to assert and defend, and wars require executive energy. The Founders certainly did not intend the federal courts to be the sole or ultimate arbiter of constitutionality--and therefore all government policy--as the ABA suggests.

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What the ABA is really doing is attempting a power grab for the judicial branch. The piece goes on to point out how biased the ABA panel was that wrote its screed. The ABA is a very disappointing organization that has been taken over by the left wing lawyers. I have never had any reason to regret dropping my membership in this organization around 20 years ago.