LA Times, networks, Fox News ignored ABA conclusion that Bush signing statements "weaken our cherished system of checks and balances and separation of powers"

››› ››› MEDIA MATTERS STAFF

A Media Matters for America review has found that a July 24 report from a task force of the American Bar Association (ABA) on President Bush's use of so-called "signing statements" has been ignored by several media outlets, including the Los Angeles Times, all three television networks, and Fox News prime-time shows. The ABA report concluded that Bush's practice of attaching signing statements to congressional legislation "weaken[s] our cherished system of checks and balances and separation of powers."

On the July 25 edition of CNN's Lou Dobbs Tonight, host Lou Dobbs interviewed Neal R. Sonnett, chairman of the American Bar Association (ABA) Task Force on Presidential Signing Statements and the Separation of Powers Doctrine, to discuss an ABA report released on July 24 that focused on President Bush's use of so-called "signing statements," which, the report concluded, "weaken[s] our cherished system of checks and balances and separation of powers." During the segment, Dobbs asserted that even though the ABA's "nonpartisan" report "accuse[d] the president of violating the Constitution," its findings are "receiving very little attention in this country." Indeed, a Media Matters for America review* of the country's major media outlets found that the Los Angeles Times, all three television networks, and Fox News prime-time shows have not mentioned the report. Among other cable news primetime shows, only MSNBC's Countdown and Lou Dobbs Tonight have discussed the report, while most of the nation's major print news outlets, including The Washington Post, The New York Times, The Chicago Tribune, and the Associated Press, have reported on the ABA's conclusions.

According to Neil Kinkopf, associate professor at Georgia State University College of Law, "[h]istorically, signing statements served a largely innocuous and ceremonial function." He explained that, generally, they "are issued by the President to explain his reasons for signing a bill into law. A signing statement thus serves to promote public awareness and discourse in much the same way as a veto message." However, Bush has often used signing statements for a very different purpose. As reported in The Boston Globe, in his signing statements, "President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office."

Rather than vetoing a bill for certain aspects he does not wish to sign into law, Bush has often chosen instead to issue signing statements indicating his intention to disregard provisions in the law, or as the Post noted in its July 24 article on the ABA report, he is asserting his "right to ignore or not enforce laws passed by Congress." The ABA report noted that Bush has attached more signing statements to congressional legislation than all of the previous 42 U.S. presidents combined:

From the inception of the Republic until 2000, Presidents produced signing statements containing fewer than 600 challenges to the bills they signed. According to the most recent update, in his one-and-a-half terms so far, President George W. Bush (Bush II) has produced more than 800.

In its July 24 article on the ABA report, The New York Times noted one such example: "In signing a statutory ban on torture and other national security laws, Mr. Bush reserved the right to disregard them" by attaching such signing statements. According to the ABA report, another of Bush's "prominent signing statements" involved his refusal to obey laws requiring the executive to "report back to Congress on the use of [USA] Patriot Act authority to secretly search homes and seize private papers."

The ABA report stated that "signing statements should not be a substitute for a presidential veto," and concluded that Bush's use of signing statements "weaken[s] our cherished system of checks and balances and separation of powers":

The Recommendations of the ABA Task Force on Presidential Signing Statements and the Separation of Powers Doctrine recognize and honor those cherished principles. The American Bar Association has always been in the forefront of efforts to protect the rule of law and our constitution, and it is now incumbent upon this great organization to speak out forcefully against actions which would weaken our cherished system of checks and balances and separation of powers. We urge the House of Delegates to adopt the proposed Recommendations.

Based on these findings, the ABA Task Force, which was appointed by ABA President Michael S. Greco, made five "unanimous recommendations" for curtailing the threat of signing statements. The task force recommended that the ABA:

oppose, as contrary to the rule of law and our constitutional system of separation of powers, a President's issuance of signing statements to claim the authority or state the intention to disregard or decline to enforce all or part of a law he has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress.

The task force also recommended that the ABA "urge Congress to enact legislation requiring the President promptly to submit to Congress an official copy of all signing statements," and "urge Congress to enact legislation enabling the President, Congress, or other entities or individuals, to seek judicial review of such signing statements to the extent constitutionally permissible."

Since April, the Globe's Charlie Savage has documented Bush's extensive use of signing statements. As Media Matters has previously noted, most of Savage's reports, which, according to the July 24 Post article, "triggered" the ABA's investigation and subsequent report, were largely ignored by other major media outlets.

*Nexis search of Major Newspapers, ABC, CBS, NBC, CNN, MSNBC and Fox News transcripts: American Bar Association or ABA or signing statements (7/23/06-7/27/06)

From the July 25 edition of CNN's Lou Dobbs Tonight:

DOBBS: Tonight, the White House stands charged with violating the Constitution. The issue is whether President Bush is empowered to disobey congressional statutes by attaching signing statements to legislation that he puts into law. An American Bar Association task force says the president has attached signing statements, as they're called, over 800 times. That's 200 more times than issued by all of the previous presidents in the Republic. But White House spokesman Tony Snow says those signing statements never say, quote, "We're not going to enact the law," end quote.

Neal Sonnett is the ABA task force chairman. Neal is a distinguished former federal prosecutor establishing a reputation as one of the nation's most highly regarded lawyers. We thank you for being with us. Neal -- joining us tonight from Miami.

SONNETT: Pleasure to be with you.

DOBBS: This is -- first of all, the idea that the ABA, which is a nonpartisan organization, would accuse the president of violating the Constitution is receiving very little attention in this country, isn't it?

SONNETT: Well, I'm starting to see more attention being given to this. We're not interested in attacking this president. We're interested in the principle. We have a very important principle at stake here. We have a government and a democracy that has been founded on separation of powers and checks and balances. And the Supreme Court has told us that whenever there is a move to arrogate power from one branch to another, that that destroys liberty. Liberty is essential to protect this country. So, we have a system here in which the use of these signing statements really tears at the very fabric of our democracy, and the American Bar Association has got to do something about that.

DOBBS: Neal, I would hope -- you know, I can recall vividly a statement by [Supreme Court Chief Justice] John Roberts [Jr.] in his confirmation hearings in which he said that he thought the greatest threat to the rule of law in this country was, effectively, activist judges, and what you're really saying is we've got an activist president. And I'm not talking about a personal attack. I don't care whether it's Bush, Clinton, or a Republican or a Democrat, but the president of the United States takes an oath to uphold the Constitution, to preserve and defend it. How in the world can we get to this sorry state?

SONNETT: Well, I think there's been a move to try to increase the power of the executive, but it's a move that has had very bad results. The task force that the American Bar Association assembled, which has Republicans and Democrats, conservatives and liberals, noted scholars on this issue -- it was unanimous in its decision-making that the practice of these signing statements that challenge laws that assert the president's authority not to enforce a law is contrary to the rule of law and contrary to separation of powers. And we've made some positive recommendations both to the Congress and to the president on what to do and how to solve these problems.

DOBBS: You've also said that the continued practice poses the potential of a constitutional crisis in this country.

SONNETT: I think it does. I hope we can avoid that. But we cannot underestimate the seriousness of this problem. This is a profound problem. It deals with the very basic preservation of liberty and the very fabric of our Constitution. A president, under the Constitution, has two choices when a bill comes to his desk from the Congress: He can sign it -- and if he does, he is duty bound to enact it and to enforce it -- or he can veto it. But you can't sign a bill with your fingers crossed behind your back and after signing the bill say, "I'm going to treat this as advisory or as my commander in chief powers give me authority to do, I'm not going to enforce certain provisions of it." That just cannot happen in a constitutional democracy. And it must not happen under any president in this country.

DOBBS: Neal Sonnett, we thank you very much, and we look forward to the next developments. We know Senator Arlen Specter [R-PA] is considering a lawsuit. Your recommendations, your findings, probably would bolster that, but -- and I know that you would prefer a solution arrived at between Congress and the president of the United States.

SONNETT: But we've also recommended that Congress draft legislation to provide a means for judicial review.

DOBBS: Legislation that one hopes the president would not avoid through a signing statement. Neal Sonnett, thank you for being here.

SONNETT: Nice to be with you.

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