Professors Lerner and Lund on the ABA and Presidential Signing Statements

Writing in the National Review Online in response to recent action by the ABA's House of Delegates denouncing the use of presidential signing statements, Professors Craig S. Lerner and Nelson Lund offer a proposal to "apply the same standard of interpretative plausibility to the president's signing statements and to those found in the opinions of the Supreme Court."

ABAndoning the Constitution, National Review Online, August 10, 2006. By Craig S. Lerner and Nelson Lund.

"Ironically, the same ABA that now condemns supposedly broad interpretations of executive power was singing a different tune 20 years ago, in a notorious case that involved the ABA itself. A public-interest group requested information about the ABA's internal deliberations about federal judicial nominees. A statute guaranteed such access to any group "utilized by the President," and everyone acknowledged that the President used the ABA to vet prospective judicial nominees.

"An easy case? Not according to the Supreme Court. The Court, at the urging of the ABA, noted that the Constitution provides that the President "shall nominate and ...shall appoint" Supreme Court justices. Affording public access to the ABA's internal deliberations about judicial nominees might run afoul of this executive power (the Court wasn't sure on this point), and the Court therefore "construed" the statute in a way that avoided any possible unconstitutionality. The Court concluded that "utilize" could mean something other than "use," though the Court never bothered to explain what other meaning the word could have.

"The ABA was grateful that the Court accepted its argument that the words of a statute should be mangled beyond recognition to avoid any possible unconstitutionality, even if this semantic torture meant a glorified vision of executive power that conveniently sheltered the ABA's own deliberations from public scrutiny. George Bush has never come close to interpreting any statute in the ludicrous way that the ABA and Supreme Court did in this case."

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