ABA President Says Potential Misuse of Presidential Signing Statements Poses Threat to Checks and Balances

Washington, D.C., Jan. 31, 2007—American Bar Association President Karen J. Mathis today urged Congress to adopt legislation creating procedures for judicial review of presidential signing statements that claim authority or indicate intent to disregard or decline to enforce the law being signed.

“The potential for misuse in the issuance of presidential signing statements has reached the point where it poses a real threat to our system of checks and balances and the rule of law,” Mathis told members of the House of Representatives Judiciary Committee.

“The Founding Fathers set forth in the Constitution a thoughtful process for the enactment of laws as part of the delicate system of checks and balances,”  requiring a President “to either sign or veto a bill enacted by Congress in its entirety,” said Mathis.  But “issuing presidential signing statements that raise challenges to provisions of law has grown more and more serious over the course of the last 25 years.”

Mathis noted the ABA called in August for Congress to approve legislation enabling the President of the United States, Congress and other entities or individuals to seek judicial review when a President expresses intent in a signing statement to disregard or decline to enforce a law he or she is signing.  The proposed legislation may be necessary to overcome legal concepts that historically have barred judicial review of legislation when a presidential signing statement signals the possibility of non enforcement of the law because of constitutional concerns, she said.  She also urged Congress to require a President to report to Congress in a publicly accessible database whenever issuing a statement expressing the intent to disregard or decline to enforce a law, and to include in the report an explanation of the reasons.

Such legislation would “improve transparency” in government and “resolve any separation of powers issues that may accompany the use of presidential signings statements,” Mathis said.

Mathis’s testimony urged presidents to communicate to Congress concerns about the constitutionality of any pending legislation before it is passed, and to veto any bills that they believe are unconstitutional.  She called on presidents to confine signing statements to expressing views about the meaning, purpose and significance of bills.

A signing statement that seeks to nullify a provision of a law without following constitutionally-prescribed procedures usurps the power of the Legislative Branch, by denying Congress an opportunity to override a veto, and could abrogate Judicial Branch power to determine the laws’ constitutionality, said Mathis.

For a video interview with Mathis, go to: http://www.abavideonews.org/ABA373/video.php.

With more than 413,000 members, the American Bar Association is the largest voluntary professional membership organization in the world.  As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law in a democratic society.