an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
ABA Task Force Report on Presidential Signing Statements
The American Bar Association this evening released a Report by a bipartisan task force on presidential signing statements and the separation of powers. The Report was prompted by the President’s stealth signing statement regarding the McCain Amendment back in December, and by the terrific archival work of Phillip Cooper, Christopher Kelley and Charlie Savage, demonstrating the Bush Administration’s prodigious use of signing statements to announce the President’s constitutional doubts about numerous statutory enactments, and the President's intentions to construe and implement numerous statutory provisions in a manner inconsistent with legislative intent.
There is much in the Report with which I agree -- especially (i) its recommendation that the President should work much harder with the Congress before passage of a bill to explain the Executive's constitutional objections, and to use the legislative process to craft a statute without constitutional infirmities -- that is to say, a strong presumption that nonenforcement of a law should be, at best, a measure of last resort; and (ii) its conclusion that the President has an obligation to be much more transparent and forthcoming, about Executive practice and theory, whenever the Administration refuses to implement a statute in the manner Congress intended.
But I am a bit surprised by the Report's central conclusion, which is that the President may not refuse to enforce statutes that he deems unconstitutional. The Report urges that the President should veto any bill that contains unconstitutional provisions, and concludes that it is "contrary to the rule of law and our constitutional system of separation of powers" to issue signing statements claiming an authority, or stating an intention, to disregard or decline to enforce part of a law that the President has signed. (As I read the Report, the Task Force is not really opposed to the signing statements announcing such an intent not to enforce, as such -- instead, it is opposed to the practice of constitutional-objection-based non-enforcement.)
As the Report notes, this recommendation would cut against a long history of Presidents declining to enforce statutes that they deem unconstitutional (although there's some dispute about exactly how old or frequent the practice is). And, as the Report also notes, it's contrary to the views of the Office of Legal Counsel in the Clinton Administration, as expressed in Assistant AG Walter Dellinger’s 1994 memorandum to Abner Mikva. (Disclosure: I worked in OLC at the time.)
To be sure, a President may not exercise a dispensing power to ignore statutes that he thinks are unwise, or wrong, or politically inexpedient. See Kendall. He has an obligation under Article II to faithfully execute the laws. But that includes an obligation, above all, to faithfully execute the Constitution. Thus, in some very limited and relatively rare circumstances, the President might best fulfill his constitutional obligation to faithfully execute the laws by refusing to enforce a statutory provision.
Which is not to say that he can or should always choose noncompliance, every time he has constitutional doubts. The question of when the Executive ought to refuse to enforce a statute -- rather than, say, the more common practice of enforcing the statute but then not defending it in court -- is a very difficult and sensitive one, which has inspired a rich literature on the subject. For some of the best treatments, see that Dellinger memo, as well as the colloquy a few years back in Law & Contemporary Problems between my former OLC colleagues Dawn Johnsen and David Barron, along with Peter Strauss. Here’s Walter Dellinger on this point:
Th[e] decision to refuse enforcement on constitutional grounds] is necessarily specific to context, and it should be reached after careful weighing of the effect of compliance with the provision on the constitutional rights of affected individuals and on the executive branch's constitutional authority. Also relevant is the likelihood that compliance or non-compliance will permit judicial resolution of the issue. That is, the President may base his decision to comply (or decline to comply) in part on a desire to afford the Supreme Court an opportunity to review the constitutional judgment of the legislative branch.
But if I'm reading it correctly, the Task Force Report appears to go much further, condemning the practice of constitutional nonenforcement in any circumstances, advising that a veto is appropriate even where a plainly unconstitutional provision appears in an otherwise important omnibus bill (see page 23).
It is, I suppose, understandable that an ABA Task Force would focus on a phenomenon -- the President reserving the right not to enforce constitutionally dubious statutes -- that characterizes all Administrations, Democratic and Republican alike. I only hope that such focus does not detract attention from what is novel and alarming about the practice in the current Administration -- principally, the substance, the merits, of President Bush's constitutional objections.
The ABA has a few creative proposals in mind which I hope you'll discuss when you have time. I think the most interesting ones are the ones directed towards Congress. They want Congress to force Bush to say what his signing statements actually mean (e.g. what does "consistent with Article II" or whatever mean in relation to the McCain Amendment). Even more interestingly, they want Congress to pass a law granting themselves standing to sue Bush to force him to enforce their laws. This gets all three branches involved, but it requires a Congressional spine. Since Arlen Specter's committee has to pass both these things, they probably won't go anywhere, but they're still great ideas.
The issue of non-enforcement by the President extends down in the executive branch (and at the state executive level down as well). Decisions not to enforce laws are made all the time for varied reasons. If the non-enforcement debate is limited to constitutional issues, then perhaps the focus on Presidential non-enforcement should be more closely examined. Consider a law passed before a particular President came into office. Isn't that President somewhat obliged not to enforce what appears to him to be an unconstitutional law? (After all, he did not have the opportunity to accept or reject the statute from become law.) The answer is not easy. Think of the Fugitive Slave statute. And keep in mind that judicial review does not give rise to judicial supremacy over the other branches.
I would say that the President has an obligation to not enforce unconstitutional provisions. His obligation to uphold and defend the Constitution is equal to, and independent from the other two branches'.
However, he also has an obligation to veto unconstitutional bills, and the very fact that he signed a bill undercuts any standing he might have to claim that it's unconstitutional. The signing was the greater, and root, offense.
That said, we all know that the ABA is a partisan organization which doesn't much care about the Constitution or rule of law. (Though the rule of lawyers is somewhat important to them.) So I'd say this is best interpreted as just a partisan attack on a President of the other party.
We have so little to protect us against resolute efforts to manipulate the possible in the interests of power. Something I worte years ago that still sems true to me:
To paraphrase a remark Richard Posner made about judicial interpretation of statutes, an irresponsible President will have his way whatever approach we may urge, and a stupid one will blunder. What we are seeking is an understanding suitable for the President of good faith -- the President who wants to know what it is his to do. It is in my judgment a considerable mistake to suggest to him a view of "the laws," the faithful execution of which he has undertaken to assure, that is any narrower than the whole as he conscionably and attentively understands them to be.
That the President takes an oath to uphold the Constitution will not protect us from a lawless, stupid, or power-hungry President misusing that oath to serve his own ends. But it also does not undercut the right and responsibility of one better equipped to, OCCASIONALLY, follow his own view of what the Constitution commands. The problem lies in the number, not the fact.
Could these Presidential Signing Statements be the ultimate flip-flop: I was for it, before I was against it?
It seems strange to me that a constitutionally required act, signing a Bill into Law, could be taken to have any other meaning _at all_ than total enactment. Where are the words in the Constitution which explain this original interpretation?
The only signing 'statement' of consequence is the President's signature.
Another aspect of this, which could be borrowed from the Bush Admin's philosophy is that 'deference' to the validity of actions of another governmental branch is required. So maybe the bottom line of Hamdan is that 'deference' is a two way street. If you challenge another branch and assert inherent powers, it seems only fair (fair?) that you cannot rely on those other branches to defer to you in assessing your claim of inherent power.
Is there a clear shift at some point between what seems -- to me at any rate -- the original purpose of signing statements, namely to let the executive participate in the creation of a historica record that later appellate courts might choose to consult, and the stealth-veto-cum-ukase understanding of the signing statement that the present crew in the White House espouse?
I, too, have prior commitments and time demands. I think you should rest assured the ABA report on signing statements closely characterizes the import of 'Bush-II' as both substance and sheer similarity of language employed in the many hundreds of statutes rejected by Bush-II. To obtain this view, though, one needs to click through the footnotes in the ABA report, as some of the most lucid writing is in the so incorporated and referenced ancillary research reports. In a sense, as I continue reading thru the ABA report, it has a snapshot in time essence about it. Indeed, one of the oft referenced writer's work is updated in sources more recent that the ABA discusses. I found interesting in following these links the colorful histories of what precisely were those situations which elicited signing statements from prior presidents; I could picture an entire library of books written discussing each of those highly charged and contentious historical times. To mention a few: the hawks taking Carter to task for pardoning draft resisters; and some of the social legislation during Reagan's terms; equally, as modern times apparently have brought societal mores into the limelight, in Dellinger's epoch, the social hawks protests about Clinton's gender neutral policies. Your link to the Kendall decision 180 years ago serves as a reminder of the great energy with which politics infuses executive exercise of power, and the checks and balances among the branches of government.
With regard to one visitor's blanket disclaimer, above, I suggest that guest click to the bonafides page at the ABA for a backgrounder on who precisely were the blueribbon authors of the report. If one was searching for law schools whose deans might be on such a panel, probably a centrist to rightward view might be assured if deans from Stanford and Yale were selected; such was the case. Among other individuals on the blueribbon panel were Ogletree and Fein; both testified before the mini-hearing which Sen. Specter held a few weeks ago on signing statements, and both were distinctly reserved. Besides the qualitative aspect of Bush-II signing statements, the report emphasizes as the media has, that the quantity of such statements is extraordinary.
Politics dealing with living and cherished public figures being a delicate matter, the ABA report nevertheless ventured into discussing a few of the occasions which brought Bush-I to use signing statements.
Furthermore, the ABA report views the sweep of modern history as one in which the numbers and potency of signing statements increased.
As I continue to read and digest the ABA report, it seems like a clear message to congress that the matter is worth assessing and addressing, given that it has become a new way of governance fairly outside the ordinary ways laws had worked previously.
I welcome this voice very much. Let's here more, many more, and in particular let's hear from Alito who is widely recognized as an early proponent of more robust "signing" statements. He owes us that even if the cost of this will be his participation in future cases.
This debate is too important not to hear from him as a constitutional scholar and citizen.
This of course assumes that his signing statements were something more that what he put on that job application with Meese.
The ABA report focuses on what a President says about laws he signs, and provides a useful history of signing statements. History is important, but so would have been some discussion of related areas.
The first is how the President interprets or ignores existing law. There seems to be less wiggle room for a president to assume a different interpretation than the one existing when s/he assumed office.
Second is a veto override. Since Congress must vote on the same Bill as the President vetoed, it is impossible to cure any of the objections the President has with the Bill. More votes from Congress will not cure an unconstitutional provision, although it might make it more difficult for the President to protest publicly (but maybe not).