Sen. Arlen Specter (R-PA), chairman of the powerful Senate Judiciary Committee, has pledged to introduce a bill this week "which will...authorize the Congress to undertake judicial review of those signing statements with the view to having the president's acts declared unconstitutional." (transcript)

Specter's remarks follow a report from the American Bar Association which, according to president Michael Greco, "raises serious concerns crucial to the survival of our democracy. If left unchecked, the president’s practice does grave harm to the separation of powers doctrine, and the system of checks and balances, that have sustained our democracy for more than two centuries. Immediate action is required to address this threat to the Constitution and to the rule of law in our country." (pdf)

William Sessions, FBI director under Bush the Elder (1987 to 1993) writes in the Seattle P-I: "Our country's framers intended that no single person would have complete and unilateral control over government." Sessions was a member of the ABA panel.

Veteran Philadelphia Inquirer political reporter Dick Polman comments:

[The ABA is] arguing that this particular president is potentially wreaking havoc with the Constitution, and that the only way to thwart him is for Congress to take drastic action that could put it on a collision course with the White House. I haven’t heard talk like this from the legal establishment since Richard Nixon's executive excesses during Watergate.

PBS points out that President Bush has issued more than 800 constitutional challenges via "signing statements" (200 more than all other presidents, combined) which signal his intent to "ignore, reject, or interpret bills after signing them into law." Bruce Fein, former Reagan-era associate deputy attorney general and ABA panel member, told PBS:

Our very first president, George Washington, who confronted bills that you might call omnibus appropriation riders, said, "I have to veto a bill or sign it in total."

Fein has been working with Specter on draft legislation, "which will give the Congress standing to seek relief in the Federal courts in situations where the President has issued such signing statements."

Constitutional Question
The issue is one of separation of powers: Congress makes law, the President implements it, and the Supreme Court determines its constitutionality. By using signing statements, the President is making judgments about constitutionality and is executing the equivalent to a line-item veto (I'll implement this part, but not that part).

Perhaps this issue cold also bring to a head the increased complexity of laws passed by Congress -- its past time for Congress to return to discrete, managable-length legislation and alllow amendments only when they have a clear relationship to the bill at hand.

Background
Last month, Dan Froomkin wrote at Nieman Watchdog (must-read, his long list of questions):

There’s so much we don’t know. Is this the Constitutional crisis the critics say it is? Or is it just a bunch of ideological bluster from overenthusiastic White House lawyers? (Or something in between?)

There are crucial questions for the White House, for Congress, for Congress to ask the White House, and for reporters to ask every Congressional candidate before the November election.

"I think one of the important things here is for reporters to apply their journalistic instincts to this story,” says Phillip Cooper, a Portland State University public administration professor. Cooper’s seminal scholarly article on signing statements appeared in the academic journal, Presidential Studies Quarterly, last fall. (pdf)

In the paper, Cooper examines Presidential use of signing statements during the first Bush term. He writes:

The thesis that emerges from this study is that the George W. Bush administration has very effectively expanded the scope and character of the signing statement not only to address specific provisions of legisla- tion that the White House wishes to nullify, but also in an effort to significantly reposi- tion and strengthen the powers of the presidency relative to the Congress. This tour d’ force has been carried out in such a systematic and careful fashion that few in Congress, the media, or the scholarly community are aware that anything has happened at all.

According to Cooper, an earlier study by Assistant Attorney General Walter Dellinger found only 16 instances where 13 presidents "issued signing statements that addressed what the president considered to be problematic parts of legislation presented for signature." Guided by Attorney General Edwin Meese, President Reagan used signing statements as though they should be a part of the legislative history of a bill.

Unitary Executive
At the heart of this is the concept of the unitary executive. Supreme Court Justice Samuel Alito was questioned during his confirmation hearings; from the New Republic:

Alito was questioned extensively on his views about the theory of the "unitary executive," which holds that all executive power is vested in the president and cannot be infringed upon by Congress or the courts. Alito had endorsed this theory in the Reagan Justice Department and reaffirmed his support for it as recently as 2000. Perhaps most disturbingly, he did not convincingly explain his enthusiasm, as a Justice Department official, for presidential "signing statements," which an executive can use to record his interpretation of a bill, whether or not that interpretation meshes with the legislature's intent. Bush, for example, is now using a presidential signing statement to argue that the recent congressional ban on torture does not, in fact, prevent the executive from ordering torture in certain circumstances. In a conflict between the president and Congress, nothing in his record suggests that Alito would defer to Congress's explicit wishes.

The most recent high profile signing statement was tied to the McCain torture bill. President Bush used a signing statement to assert that as Commander-in-Chief he could simply ignore the law he'd just signed.

Also, see Alito Once Made Case For Presidential Power; The Legal Significance of Presidential Signing Statements, 3 November 1993; The Problem With Presidential Signing Statements; The Unitary Executive: Is The Doctrine Behind the Bush Presidency Consistent with a Democratic State?

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