The ABA House of Delegates met on Tuesday to deliberate on a number of policy recommendations. What follows is an update:

Presidential Signing Statements
Neal Sonnett, chairman of the ABA Task Force on Presidential Signing Statements and the Separation of Powers, launched the discussion. He discussed the genesis of the Task Force, as prompted by a Boston Globe article by Charlie Savage. He noted that many of his colleagues had never heard of signing statements. According to Sonnett, “It’s an important issue because the Supreme Court states that our system of separation of powers ‘is essential to the preservation of liberty.’” Quoting Justice Anthony Kennedy, he said his Saturday speech to the ABA on the rule of law was very germane to the ABA’s discussion: “The law is superior to and thus binds the government and all of its officials. Part of the rule of law is the ability to know what the law is.” According to Sonnett, “If the President doesn’t enforce laws or comply with the provisions of laws, citizens do not know what the law is. The use of signing statements threatens our constitutional system of checks and balances and separation of powers and thereby rips at the very fabric of our democracy.” Sonnett noted the task force’s diversity and heralded all of its “hard work” in arriving at its conclusions. “We’re not condemning signing statements,” Sonnett emphasized. “We believe only that the misuse of presidential signing statements must be condemned... In the final analysis, this is a critical issue. The ABA has an obligation to defend liberty and pursue justice. We must stand up for the separation of powers and the constitutional system of checks and balances.”

Thomas Susman of the task force described an amendment that changed a few words of the proposal. It now reads that the “ABA opposes, as contrary to the rule of law and our constitutional system of separation of powers, the MISUSE (rather than issuance) of presidential signing statements BY CLAIMING the authority or STATING the intention to disregard or decline to enforce all or part of a law the President has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress.” The amendment will address some of the critics’ concerns. He declared, “It’s the President’s flagrant, routine, misuse of that piece of paper, that signing statement, to avoid a veto or the ability of Congress to get the last word or avoid the Judiciary’s ability to declare it unconstitutional.” The task force did not rule out the use of signing statements, but “in the end what we condemn is not the use of the signing statement, but the misuse of the signing statement.”

A Mississippi delegate, Scott Welch, offered a motion to postpone the recommendation indefinitely. He stated, “The amendment expressed concern expressed by the Administrative Law Section the tone of the report itself makes it clear to us all that we are treading on very dangerous area here that I suggest is not to remain either to pursuing justice or defending liberty. The report comes to us as a late report with a genesis of the article in a Boston newspaper less than three months ago and remarks by Senator Leahy... I suggest to you that since the report says that the use of the signing statements has been going on since 2001, I don’t know why it took the Boston Globe and Senator Leahy to make this discovery. There is no urgency to consider this report... There are constitutional issues involved here, and there are those in this organization who have equal knowledge of constitutional law [to those on the task force]. I suggest to you that this is untimely.” He maintained that the ABA should not restrict the President’s freedom of speech in expressing his concerns about the constitutionality of a piece of legislation, and he notes that other presidents have done this. “While we speak about the separation of powers, we leave aside the judicial branch. If there is something wrong with the use of signing statements, then the courts can deal with it and there are lawyers out there who will raise those issues in the courts.” This report, he concludes, is not germane.

Kathy Bird, State Delegate from Ohio, supported the motion to postpone. “The credibility of the position that we ultimately take... will be enhanced only if we take the time to do it right.” She claimed that the amendment does not sufficiently take care of concerns. The word “misuse” still implies that every use of a signing statement is a “misuse.” However, she conceded to the ABA's position that President Bush has issued too many signing statements.

ABA President Michael Greco expressed his strong opposition to the motion to postpone. He stated, “Protection of the Constitution of the United States and the separation of powers is germane. The motion made by Scott Welch would defer action on a matter that America at this moment is waiting for the action of this House... I’ve never seen such attention in my 35 years [in the ABA] to an issue.” He noted he had received hundreds of letters supporting the resolution, some with “tearful support.” Greco declared, “America is waiting for the action of this House on this issue. To defer is to encourage what is going on.” If we wait indefinitely, the number of presidential signing statements "will be in the thousands, 1,500... The issue is, 'May the President issue a statement after he has signed the bill that misuses that instrument?'... No other American has the power to tie the hands of Congress.” The power is not found in the Constitution, according to Greco. He affirmed that the President can only sign a bill in total or veto the bill. “We are on dangerous ground,” he warned. Addressing the earlier criticism, he exclaimed, “Scotty, you said that this is untimely and not germane. It is never the wrong time to do the right thing! This is the time that the ABA and the legal profession are looked to to defend the very institution of our government, and if we wait six months, a year, what will be different? Nothing will be different... What more does this House need to act? The American people are waiting for your vote.”

Stephen Saltzburg also addressed the importance of this as a practical matter. He used the example of Abu Ghraib and the torture memo, as the Task Force described the Detainee Treatment Act as an example of a “misused” signing statement. He suggested sarcastically that the President, instead of issuing signing statements, should declare, “I am above the law that Congress enacts.” He urged that the motion to postpone be rejected: “If you believe that this is one of the grave threats...then you will vote to reject this motion.” Mark Agrast and Neal Sonnett also spoke to refute some of the “misinformation” of the bill. Sonnett explained that there was sufficient time to consider the issue, and that the experts on the task force “worked hard to reach the right result.” Time would not change the task force’s conclusion. He also attempted to refute the “free speech” argument. The President can use signing statements to offer his perspective on the “meaning, purpose, and significance” of the bill. He cannot use them to declare a bill unconstitutional as “the law is above the President... No president is above the law.”

After an hour of debate, the motion to postpone indefinitely was defeated 272-99. Steve Krane, a delegate from New York, spoke in his individual capacity against the task force report. Although the task force compiled a “compelling case,” he stated that there is another conclusion: the president has the power under the Constitution to do what the task force condemns. According to Krane, “The president has an obligation to not enforce unconstitutional parts of statutes under the clause of the Constitution that requires him ‘to take care that the Laws be faithfully executed.’” Many bills that reach the President contain at least one unconstitutional clause; he stated, “The president’s oath of office, mandated in the text of the Constitution, by which he swears to ‘preserve, protect, and defend the Constitution,’ necessarily requires that he form a judgment as to what the provisions of the Constitution mean.” Thus, Marbury vs. Madison stands for “judicial review,” not “judicial supremacy.”

The proposal was adopted by a voice vote.

Other Recommendations
Gender Identity Discrimination: Recommendation 122B, sponsored by the Individual Rights and Responsibilities Section and six other cosponsors, urges legislation against actual or perceived gender identity discrimination. According to the sponsor, this “much needed” recommendation is based on the ABA’s underlying commitment to equal opportunity and its principle that no individual should be denied civil rights based on membership in a minority group. Although no one spoke in opposition to this recommendation, a few House of Delegates members could be heard voicing their opposition during the vote. Nevertheless, the proposal was adopted.

Billable Hours: The Litigation Section and four other cosponsors proposed that law firms consider alternatives to mandatory minimum billing requirements that would reduce undue emphasis on billable hours and compensation systems that recognize and reward attorneys on factors other than billable hours. The recommendation was unanimously adopted.

Pro Bono Service: The Commission on Renaissance of the Idealism in the Legal Profession and 15 cosponsors offered Recommendation 121A, urged a “spirit of service” by encouraging lawyers to perform pro bono service. The Commission was a major initiative of ABA President Michael Greco. The proposal was unanimously adopted. Two other recommendations concerning increased information and access of pro bono service were both adopted.

Death Penalty: Recommendation 122A, offered by the Section of Individual Rights and Responsibilities (IRR), the Death Penalty Moratorium Implementation Project, the Death Penalty Representation Project, and eight other cosponsors, urged each death penalty jurisdiction to implement specific policies and procedures as it relates to mental illness. Elisa Frazier, the Section delegate, addressed the House. She noted that the recommendation does not endorse the death penalty, but sets standards in accordance with the Atkins decision. The recommendation was adopted.

Stephen Saltzburg, speaking for the Commission on Effective Criminal Sanctions, withdrew six recommendations. He told the House of Delegates that the National District Attorney Commission asked that the recommendations be withdrawn so they could collaborate with the ABA on the policy. The recommendations will be considered at the ABA Midyear Meeting in February.

Recommendations 302A and 302B, sponsored by the Task Force on Attorney-Client Privilege and thirteen other entities, concerned the preservation of the attorney-client privilege. The sponsor stated that the executive branch, not the courts, retained the discretion as to the application of attorney-client privilege—whether it is the Department of Justice or at the state level, per Elliot Spitzer. He urged a strong grassroots effort to promote this initiative, which has support from numerous bars, the ACLU, and the Chamber of Commerce. The recommendations were unanimously approved.