ABA Task Force Report on Presidential Signing Statements

Marty Lederman

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.

I hope to have time to write more on this subject later, but other commitments beckon . . .
Posted 9:29 PM by Marty Lederman [link]