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Spokane, Washington  Est. May 19, 1883

Opinion

David Sarasohn: Leading with crossed fingers

David Sarasohn The Spokesman-Review

Lawyers, for obvious reason, like to know what the law is. They like to know what the legislators who wrote the laws intended, and what the courts think the laws mean.

Which may be why they get nervous when President Bush says none of that matters.

“When the president’s method of dealing with legislation he doesn’t like is to say that he doesn’t intend to enforce it,” Michael Greco, president of the American Bar Association, said Tuesday, “that has a very serious implication for the separation of powers in our country.”

Why study law when all you need to know is how the president feels about it?

Which is why, earlier this month, the ABA board of governors voted unanimously to name a task force to look at President Bush’s breathtaking use of signing statements on 750 laws, explaining which parts he planned to follow and which parts he planned to flip into the presidential wastebasket. So far, Bush has issued more signing statements than all previous presidents put together – with almost three years of legislative picking and choosing to go.

By 2008, the federal statutes could look like a set of paper doll cutouts.

So far, among the signing statement greatest hits, the president has waved off congressionally enacted language that protected federal whistle-blowers, that required the government to report its uses of the Patriot Act to Congress and that created a strong inspector general in Iraq. But when asked what signing shrug-offs particularly bothered him, Greco immediately noted the president’s scissoring out Sen. John McCain’s amendment against torturing prisoners.

“There you have an example of Congress agonizing over an issue, debating it, reaching a decision on behalf of the American people,” Greco said, “and the president says, ‘I’m not going to enforce it.’ “

Which is not the way his law books say it’s supposed to work, and why the ABA president sees “serious constitutional issues.”

So far, Bush is the first president since Jefferson to go this long without vetoing a bill. But as Charlie Savage of the Boston Globe points out, “In a way, these are better than vetoes.” Unlike a veto, a signing statement lets the president keep what he wants and drop the rest, and Congress can’t override it.

Best of all, “signing statements generally pass without notice in the public, and there’s a good chance nobody will notice,” Savage wrote.

Compared with all those advantages, what’s a few constitutional problems?

That’s the question for the ABA panel, the highest-powered legal group since the O.J. Simpson defense team. It includes the dean of Yale Law School, the former dean of Stanford Law School, a former FBI director, a former chief judge of the U.S. Court of Appeals for the District of Columbia, and former Rep. Mickey Edwards, R-Okla., who declared, “I think one of the most critical issues for the country right now is the extent to which the White House has tried to expand its powers and basically tried to cut the legislative branch out of its own constitutionally equal role.”

Of course, this does leave the question of what Congress has been doing while its constitutional powers have been pruned like a laurel hedge.

Last month, Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee, expressed surprise at the extent of “presidential signing statements where the president seeks to cherry-pick which parts of the statute he will follow,” and declared that he would hold a hearing on the subject.

But since then, Specter has said that signing statements will be just one among a number of issues that he wants to take up the next time the attorney general comes by the committee.

The president’s extensive use of signing statements to pick the laws he’ll enforce and the laws he’ll ignore may make it hard to be a lawyer, or an article of the Constitution or a branch of government allegedly equal to the executive. But as Savage points out, the tactic offers the president lots of benefits: It greatly expands his power, and mostly nobody even notices.

Savage didn’t even mention the greatest advantage of signing statements:

Congress lets the president get away with it.