Balkinization  

Sunday, July 30, 2006

The Problem Isn't Signing Statements [UPDATED]

Marty Lederman

Nor is it the President's assertion of a power to decline to enforce statutes that he thinks are unconstitutional.

No, the problem -- the principal problem, anyway -- is the substance of many of this Administration's constitutional objections to statutes, including many (e.g., the Torture Act, ISA, the UCMJ, the Habeas statute) that were enacted and signed long ago.

Walter Dellinger takes aim tomorrow in the New York Times at the misplaced focus of the recent ABA Task Force Report on signing statements and the separation of powers.

Walter is right. [UPDATE: He and I and a half-dozen of our former OLC colleagues have much more on this matter over at the Georgetown site.]

[Disclosure: I worked with Walter and others on these and related issues at the Office of Legal Counsel in the Clinton Administration.]

Comments:

I respectfully disagree. The president has every right (also an obligation) to assert "that the bill has an unconstitutional provision", but he has no right to declare that he will not enforce it.

The only constitutionally proper course of action for the president in such circumstances is to a) suspend the enforcement and b) immediately seek judicial resolution of the "controversy" in a Constitutional Tribunal of some sort, presumably the Supreme Court in this country.

In other words he does not have to "forcibly seize a brain-dead patient and place her on artificial life support" if Congress enacts a statue to that effect, his obligation is to go to court if he thinks this is an unconstitutional request.

Simply permitting this or any other president to cherry pick what they want to enforce gives them too much arbitrary power.

(the executive is of course always free to veto anything Congress enacts but given the realities of modern law making this is not the most sensible way of doing things as correctly pointed out by Dellinger.)

Also I do not see a problem with "the report studiously avoid[ing] addressing the real problem, which is not the president’s right to act on his constitutional views, but that some of this president’s constitutional views are fundamentally wrong".

On the contrary, this observation expressly underlies everything the report concludes. Of course Bush people will strenuously object to ABA's and Dellinger's characterization of their constitutional views as fundamentally wrong, and it is not clear a priori who is right, another voice is urgently needed that of the Supreme Court.

And one more observation, Bush practice these days is to couch his objections in his signing statements in the broadest possible way. (I will execute this law in way that is consistent with my powers). This is totally unacceptable as correctly and forcefully pointed out by the ABA, Dellinger fails to discuss it.
 

Judicial review, which is not specified in the Constitution, does not mean judicial supremacy over the Executive and Legislative branches. Each branch is to uphold the Constitution. Yes, there will be differences between the branches. Does the Constitution specifically address what happens, what or who governs in case of such differences? Perhaps judicial review is a step in that direction (some scholars strongly disagree) but it is not necessarily the final step. In the end it is "We the People" who decide, if the "We" take the time to do it.
 

Interesting perspective and discussion at http://www.acsblog.org/. Does Scalia's dissent in Hamdan give strength to signing statements being used in interpretation? How much clout should these signing statements really have in determining constitutional interpretation. Should they be treated as a secondary source like law review articles, or should they be given the same weight as legislative history? While, I think the statements have relevance, I have to disagree with there being given an equal weight to that of legislative history.
 

wg: I think Dellinger's view that the president can decline to execute a statute he deems to be unconstitutional is well-founded.

If you read Dellinger's OLC opinion on the matter, in which he so advised the president, it was presented entirely within the context of facilitating and deferring to judicial review. Indeed, in many cases there could be no test case if the President did not defy the law to create one.

The problem is that following that advice -- still on the books at OLC -- requires good faith. And the incumbent president lacks such good faith. Instead of facilitating judicial review, he hides from it, having adopted the legal strategy of a fugitive.

shag from brookline: Your theory that there is no such thing as judicial supremacy is directly at odds with the position of every single breathing Supreme Court justice. It's a 9-0 no-brainer. The principle of judicial supremacy to interpret the Constitution is among the most settled of U.S. precedents. Yes, the political branches can excercise their own interpretations, but the courts have the final say.
 

I find the position set forth in the ABA report more convincing then the position advanced by Mr. Dellinger. With all due respect to Mr. Dellinger, most of his argument strikes me as a red herring. The current issue concerns signing statements. We are discussing the authority of the President when he must choose to either sign or veto a bill. We are not currently confronted with the problem of a President who has to decide whether to enforce a bill that was enacted under a prior administration or was enacted by overriding his veto. Those are difference circumstances that must be analyzed differently. We are instead confronted with the problem of whether the President has the right to sign a bill and then pick and choose which provisions of it he will enforce.

Mr. Dellinger writes that “the Constitution does not force the president to choose between two starkly unpalatable options: veto the entire bill or enforce an unconstitutional provision.” Again, with all due respect to Mr. Dellinger, that is exactly the stark choice that the Presentment Clause gives to the President. He must either approve all parts of the bill or reject it in toto. That is how George Washington understood the Presentment Clause, and it is how the United States Supreme Court interpreted it in Clinton v. City of New York, 524 U.S. 417 (1998), when it held that the line-item veto violates the Presentment Clause.

Note that Mr. Dellinger’s argument for allowing Presidents to declare laws unconstitutional in signing statements is precisely the same argument that was made for the wisdom of the line item veto. If Congress cannot create a narrowly tailored line item veto for the President, then surely the President cannot create an unbridled line item veto for himself.

I find Mr. Dellinger’s argument that the Oval Office should instead police itself even less persuasive. Maybe Plato is correct that the benevolent dictator is the best form of government, but surely history has taught us that not all dictators are benevolent. I don’t want to trust that the President will be benevolent in the exercise his power. I want the Constitutional scheme of checks and balances upheld, even at the price of a less efficient administration. I consider my freedom worth that cost.
 

The principle of judicial supremacy to interpret the Constitution is among the most settled of U.S. precedents. Yes, the political branches can excercise their own interpretations, but the courts have the final say.

I'd take this a step further and say that the courts, at least within limits, should have the final say, that it's essential for a democratic system.
 

For what it is worth, the fact that almost all judges endorse judicial supremacy does not count as dispositive evidence for "constitutional protestants" anymore than does the fact that all members of the Roman Catholic hierarchy endorse papal supremacy (or at least the supremacy of the teaching magisterium as defined by the Vaticum and the Congregation for the Defense of the Faith) proves relevant for religious protestants. There may be good arguments for judicial supremacy--see, for example, the articles by Fred Schauer and Larry Alexander (which, I confess, do not persuade me)--but the fact that judges have a particular view of their own authority isn't one of them.

Incidentally, the notion that a President can always appeal to a court for some "definitive answer" as to constitutionality assumes that standing is always available. Even the present Court has scarcely taken the position that it has unlimited authority to hear any and all interesting conundrums about constitutional law. There are, of course, courts that have more expansive notions of standing, including the Israel High Court and the Indian Supreme Court.
 

Sandy Levinson,

I fully acknowledge your last observation that judicial review is not always available. In fact, I think the consensus view from those "papist" justices would be that the limits on their powers lie primarily in the Article III requirements of case-or-controversy and standing.

I also recognize that there are academic theorists who reject judicial supremacy itself. (Lately, the most vocal proponents of such theories tend to be from the political right. That may change with historical circumstance.) I have a hard time taking any of it seriously so long as all the real justices embrace judicial supremacy as core constitutional law. Realistically, what would change this?
 

While I think the attitude of the Justices is an important factor, I think it has less weight than the structural role the Court plays -- IMO, that requires judicial supremacy. That said, I'm not sure the analogy to Catholics and Protestants undermines JaO's argument. In the case of the SCOTUS, it is, to paraphrase a quote, supreme because it is final. The Catholic Church, in contrast, lacks the monopoly on religion which the Court exercises under US law. I think that the existence of that monopoly requires that we give more weight to the actual attitude of the Justices than Protestants give to the Pope.
 

I'm not sure what it means to say that the Court exercises "a monopoly" with regard to the interpretation of the Constitution. On occasion it has said this, but to some extent it is like whistling past the graveyard insofar, for better and for worse, it is often the case that other political actors, especially, ironically enough, relatively low-visibility bureaucrats or relatively poltically independent sheriffs and the like, scarcely have brought their behavior ito line with that presumptively desired by the Court. Indeed, as has been argued in earlier postings relating to John Yoo and the pratice of law more generally, actors who desire to maintain their own agendss instead of signing on to the Court's, can easily find lawyers to create distinctions that can stifle any easy notion of "compliance."

One can argue such issues either on empirical grounds--to what extent does the Supreme Court actually shape behavior with regard to anything particularly important where there is significant social cleavage--or normatively--to what extent ought we assign papalist (not "papist," incidentally, which I have been persuaded is a derogatory term) authority to the Court or, on the contrary, adopt a far more protestant (or "rabbinic") view of multiple interpreters. I am indeed one of the latter theorists, but, as suggested, I base my theory on a substantial empirical foundation of the actual practice of American constitutional politics. And that includes some role for independent presidential interpretation. If we really reject such a notion, then I suggest, for starters, that we tear down the Lincoln Memorial (though, of course, the Memorial doesn't highlight Lincoln's disdain an ddisregard to Taney's opinion in Ex parte Merryman).
 

This comment has been removed by a blog administrator.
 

There are some 41
constitutional courts or tribunals in the world today and most of them share one common characteristic - they are there to pronounce definitively on constitutionality of statutes.

As to standing almost in all cases members of legislatures, presidents, etc are granted one -- see below for typical arrangement. Some even have a mechanism for prior review of constitutionality, again with members of the legislature given full standing.

In Germany anyone can bring can bring a case to German Federal Constitutional Court alleging that his or her rights were violated in a so called Constitutional Complaint.

In almost all cases these are relatively new arrangements (50- 100 years old at most) and thus reflecting more modern thinking on how to assure that laws are consistent with constitutions.

US judicial system seems odd-ballish in the sense that we have nothing to provide for quick, efficient and accessible resolution of constitutional disputes. Where highly restrictive standing requirements are used to block access to courts.

The rest of the world also differs from us in assuming that once a law has been enacted it is binding on everybody. This apparently is not true here as evidenced by Bush's signing statements.

------------


(from Portuguese constitution, which is more or less typical of arrangements everywhere)

Article 281. Abstract review of constitutionality and legality

2. The following may ask the Constitutional Court for a declaration of unconstitutionality or illegality with generally binding force:

a) The President of the Republic;

b) The President of the Assembly of the Republic;

c) The Prime Minister;

d) The Ombudsman;

e) The Attorney General;

f) One tenth of the Members of the Assembly of the Republic;



Article 278. Prior review of constitutionality

...

4. In addition to the President of the Republic himself, the Prime Minister or one fifth of all the Members of the Assembly of the Republic in full exercise of their office may ask the Constitutional Court to conduct a prior review of the constitutionality of any rule laid down by any decree that is sent to the President of the Republic for enactment as an organisational law.
 

I should let JaO defend this point, since it's really his (?)....

I'm not sure what it means to say that the Court exercises "a monopoly" with regard to the interpretation of the Constitution. On occasion it has said this, but to some extent it is like whistling past the graveyard insofar, for better and for worse, it is often the case that other political actors, especially, ironically enough, relatively low-visibility bureaucrats or relatively poltically independent sheriffs and the like, scarcely have brought their behavior ito line with that presumptively desired by the Court.

Even within the Catholic Church -- where the papacy does have recognized, ultimate authority -- individual parishoners, priests, and even bishops can act contrary to official doctrine. They can't do it for long, though; only as long as the Church chooses to allow the behavior to persist. The Church may pronounce its doctrines in general terms, but it must enforce them in individual cases.

Something very similar happens in the US. There's a good deal of room for resistance to decisions; the segregation experience tells us that even if nothing else does. Each act of resistance must then be challenged, just as it is in the Church.

The key difference I see, and the one that caused me to intrude, was this: the Catholic Church has jurisdiction only over Catholics. It can't enforce its doctrine over those who worship outside of it. In contrast, the SCOTUS has constitutional authority over "all cases in law and equity, arising under this Constitution". As long as US citizens recognize the Constitution as authority, the Court gets a monopoly on deciding cases and thus a monopoly on doctrine.

There's no doubt that to a great extent this difference is pragmatic. The Catholic Church claims universal jurisdiction; that's what "catholic" means. But the Church lacks an agreed basis for that claim, whereas the Constitution provides that basis for the Court.

It still does happen that Presidents, for example, challenge the Court: "Mr. Marshall has made his decision, now let him enforce it." But when they do, there is (IMO) general agreement that they've trespassed on the Court's Constitutional authority. Thus, I think that JaO's point has some force and that the analogy to the Church doesn't undermine that point.

Having said all this, I want to make clear that (1) I consider JaO's point much less important than the structural considerations which (IMO) require the Court to exercise judicial supremacy in certain (not all) cases; (2) I completely agree that "multiple interpreters" have, as a matter of historical fact, contributed to Constitution interpretation, and further agree that they should do so in many cases.
 

I can't argue that presidents have occasionally pushed outside the envelope of judicial authority and gotten away with it, at least temporarily.

It would be more than scary in our current context if the incumbent chose that path. As I mentioned above, many of those who argue loudest today against judicial supremacy happen to be from the political right, defending an aggressive president they view as one of their own, and I find it especially troubling when one of them reminds us that the executive branch has all the guns and bayonets. Personally, I think President Bush would back down from actually defying a Supreme Court decision, although I also think he demonstrates bad faith toward the courts and the rule of law.

But this "empirical" discussion is somewhat different from my original point, which concerned the law itself. Within the law, especially in academic venues and forums such as this, there is room for normative debate about what the courts ought to decide. But the practical distinction I make is between doctrines that seem settled by the courts and those that do not. Real precedents are set -- or set aside -- by real justices. And so long as none of them questions the bedrock principle of judicial supremacy, I don't take theoretical alternatives very seriously.
 

See my comment at tpmcafe, persuasively refuting, on a point-by-point basis, all the arguments the former OLC lawyers make about signing statements, here: http://www.tpmcafe.com/blog/specialguests/2006/jul/31/untangling_the_debate_on_signing_statements#comment-149480
 

See my comment at tpmcafe, persuasively refuting, on a point-by-point basis, all the arguments the former OLC lawyers make about signing statements

I'm not persuaded by several of your arguments. In no particular order:

1. Use of the veto. I don't see this as solving the problem. Suppose the President does veto a bill but Congress passes it over the veto. Under your theory, must the President then enforce it anyway, or can he take it to the courts? If the latter, then I don't see why the veto is necessary at all; surely the President is not estopped to challenge a statute in court just because he signed it. That would serve no purpose except to inhibit judicial review, which is what you contend should be the proper recourse anyway (and I agree with that).

Nor will negotiation suffice. If Congress disagrees, there is an impasse. The only way to resolve such a dispute is to pass the bill and let the Court decide.

2. Jefferson. Yes, you can interpret his refusal to continue prosecution under the Sedition Act as an exercise in prosecutorial discretion, but that's hard to do when he made so many comments giving as his reason for that decision his firm belief that the Act was unconstitutional. Besides, calling it "prosecutorial discretion" doesn't help much when the prosecutors are part of the executive. It's just another facet of the same behavior.

3. Faithful execution. It's true that ONE way to execute the Constitution faithfully is to enforce an unconstitutional statute. Another, though, is to refuse to enforce it. This really gets back to No. 1.

4. Most laws are not unconstitutional on their face, but only as applied. I can't see any harm in the President signing a law which might be abused, but which if not abused is a good law.

The real problem with Bush is his manifest bad faith in exercising Presidential powers. It's not just signing statements or refusal to enforce, it's ALL of it. I'm not sure I'd change established practice just because of him (I might if it were repeated by future Presidents).

I agree that (a) the preferred method of determining unconstitutionality is judicial review; (b) signing statements should NOT be treated as part of the legislative history; and (c) refusal to enforce cases should be both rare and part of an effort to obtain judicial review. That still leaves some room for both the statements and the refusal to enforce.
 

mark:

There's no need for refusal to enforce. First, the President does have the veto. The veto may leave a few situations where the President is faced with the question of what to do with a statute passed over the veto or with a law signed by a predecessor. Still, in most situations, the veto is there. The question is why should the President have ANY power-- especially since line-item vetos are clearly unconstitutional under controlling precedent-- to refuse to enforce, for ANY reason, a statute that he could have vetoed? The only actual answer seems to be that Presidents don't want to take the political hit of a veto, but that's a political hit the framers expected them to take.

Second, in the narrow circumstances you posit, the President still has the courts. He can appoint competent counsel to defend the law and seek to challenge it. But he has to abide by it unless and until the judiciary adopts his position. That's how you faithfully execute the laws. (If the issue is an application of an otherwise constitutional law, the President should do this if and when the issue comes up. No signing statement is required.)

Finally, if the President really does not feel he can follow the law, he can resign.

Those options cover all the possible situations. There is no reason for a signing statement.
 

Dilan, your post repeats your original argument, but doesn't address any of the counterpoints.

I'm sympathetic to your view. However, the former OLC attorneys do make several good points which you haven't addressed:

1. Enforcing an unconstitutional law, even if the President signed it, is inconsistent with the oath to "preserve, protect and defend the Constitution". It's also inconsistent with the obligation to faithfully enforce the laws, assuming we all agree that the phrase "the laws" includes the Constitution.

2. Most laws are not unconstitutional on their face, but can be unconstitutional as applied in certain cases. Surely the President is not obligated to veto a law which might conceivably be abused; that would require vetoing almost every law.

3. There is support in the historical record for the practice.

4. Circumstances might change. I'll give you an example: was Lincoln, in the middle of the Civil War, obligated to enforce the Fugitive Slave Law (assuming the law was Constitutional)? Another: Was Jefferson really obligated to continue the Sedition Act prosecutions?

Your proposed solution doesn't meet these points.
 

Mark:

1. Nothing in the Constitution says that the President gets to say what the Constitution means. Rather, the "Judicial Power" of the United States goes to the courts. Thus, the way the President preserves, protects, and defends the Constitution and takes care that the laws be faithfully executed is by obeying statutes and bringing unconstitutional statutes to the attention of the courts and obeying them in the meantime.

2. I answered the "unconstitutional as applied" point. The President can and should veto the law and ask that the unconstitutional application be remedied. If the President is dealing with a law already signed or passed over his veto, he can wait until an unconstitutional application comes up and then ask the courts to review it.

But the line-item veto is unconstitutional under controlling authority, and that includes the line-item veto of a provision that the President thinks is unconstitutional.

3. Have there been signing statements? Yes. But the examples of Presidents dealing with allegedly unconstitutional legislation that the authors gave were unpersuasive. Refusing to prosecute people under a criminal statute is simply not the same thing as saying a law has no force. One is the classic executive power of prosecutorial discretion; the other is flatly disobeying Marbury v. Madison.

4. Again, those issues are prosecutorial discretion issues. The executive branch can refuse to prosecute under criminal statutes, and that's simply very different than purporting to line-item veto a bill.

And by the way, the fugitive slave law is a TERRIBLE example. It was perfectly constitutional prior to the enactment of the 13th Amendment, and indeed was specifically authorized under the Constitution. Lincoln, had I said, could refuse to prosecute under it, but he had no power to say that it was unconstitutional; it wasn't.
 

Nothing in the Constitution says that the President gets to say what the Constitution means.

Nothing in the Constitution says this, either:

the way the President preserves, protects, and defends the Constitution and takes care that the laws be faithfully executed is by obeying statutes and bringing unconstitutional statutes to the attention of the courts and obeying them in the meantime.

It doesn't seem fair for you to demand text for my point but to rely on inference for yours.

In any case, there is text for the OLC view: "he shall take care that the laws be faithfully executed." To me, that means enforcing the Constitution as well.

I answered the "unconstitutional as applied" point. The President can and should veto the law and ask that the unconstitutional application be remedied.

You did say this; I don't find it persuasive for all cases. Lots of times the unconstitutional application can't even be foreseen. I don't think the President is bound to enforce an unconstitutional application he couldn't have foreseen just because he signed the bill into law.

Refusing to prosecute people under a criminal statute is simply not the same thing as saying a law has no force.

It seems very similar to me.

And by the way, the fugitive slave law is a TERRIBLE example. It was perfectly constitutional prior to the enactment of the 13th Amendment, and indeed was specifically authorized under the Constitution.

That's why I used it as an example. Are you seriously asserting that Lincoln was obligated to enforce that law at any time after Fort Sumter?
 

Mark:

If the take care clause includes the Constitution, then the President violates it by SIGNING unconstitutional legislation. So that argument doesn't get you anywhere. (By the way, if we were to get into the history running up to the Constitution, it is pretty clear that the take care clause related to laws, and that the framers expected that the President would obey Congressional statutes and that was the purpose of the clause. But that's neither here nor there because even if it includes the Constitution, that just makes clear that the President is prohibited from signing unconstitutional legislation, with or without a signing statement.)

"That's why I used it as an example. Are you seriously asserting that Lincoln was obligated to enforce that law at any time after Fort Sumter?"

Well whether he was or not is measured by a different metric, i.e., the laws of war and insurrection. We are not talking about whether a President, during a time of actual insurrection, may decide to suspend generally applicable laws that relate to the territories that are under rebellion. That's the Lincoln / fugitive slave issue. But my point was, that DOESN'T establish the President's power to declare the law unconstitutional. Indeed, it is perfectly constitutional. There may simply be a power to override it under the Commander-in-Chief power (although it may also be that the proper procedure was to go to Congress).
 

If the take care clause includes the Constitution, then the President violates it by SIGNING unconstitutional legislation.

Fair point, but I can't see that two wrongs make a right. If he signs it in violation of his oath (assuming, that is, that he recognizes the problem at the time but signs anyway), violating it afterwards hardly seems like the best solution.

Well whether he was or not is measured by a different metric, i.e., the laws of war and insurrection. We are not talking about whether a President, during a time of actual insurrection, may decide to suspend generally applicable laws that relate to the territories that are under rebellion. That's the Lincoln / fugitive slave issue.

I'm not sure I follow you here. As I understand it, the habeas corpus clause has been interpreted to give only Congress the right of suspending the writ. What other authority do you think the President has to ignore a law of general application?

I want to emphasize that I think the range of cases we're discussing is fairly narrow. I'm somewhere between you and the OLC attorneys. I just think there are some limited cases in which refusal to enforce is appropriate.
 

"I'm not sure I follow you here. As I understand it, the habeas corpus clause has been interpreted to give only Congress the right of suspending the writ. What other authority do you think the President has to ignore a law of general application?"

I am not sure whether the President can suspend generally applicable laws during an insurrection or not. (Note, we are talking about fugitive slave laws, not habeas.) But if he does have that power, it's part of the Commander-in-Chief power and would have nothing to do with whether the statutes are unconstitutional. Indeed, your hypothetical involved a flatly constitutional (at the time) statute.
 

My example can work two different ways. Both assume that the Fugitive Slave Law was constitutional when passed.

Hypothetical #1: Assume that the President has war powers. The FSL interferes with the exercise of those powers and Lincoln reasonably believes that the FSL is therefore unconstitutional as applied. Can Lincoln refuse to comply with it on this basis?

Hypothetical #2: Assume that the FSL does not interfere with any war power. Is Lincoln obligated therefore to enforce it despite the obvious absurdity of doing so?
 

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