Balkinization  

Tuesday, August 08, 2006

The ABA Report and Constitutional Change

Stephen Griffin

I can’t improve on the critiques of the ABA Report made by participants on this blog, so rather than issue my own critique (promised earlier), I’ll confine myself to a few comments.

1. The dog that didn’t bark in the ABA Report is the Tenure of Office Act, a staple of every discussion of presidential refusal to enforce an unconstitutional statute. This was the act violated by President Andrew Johnson for which he was impeached. The act was widely thought to be unconstitutional, both then and now. This considered judgment was ratified in the Meyers case.

Why doesn’t the Report discuss the Tenure of Office Act? As others have already observed, the Report is framed around signing statements per se, rather than presidential interpretation of the Constitution and the very difficult problem posed by acts that are “unconstitutional,” to use the scare quotes of the Report.

It would be difficult to deny that presidents should ordinarily be expected to execute the law. Indeed, this forms the true ground for Johnson’s impeachment – not his violation of the Tenure of Office Act, but his failure to enforce laws pertaining to reconstruction. The Tenure of Office Act was different because it struck directly at presidential power over removal of executive officials.

So to be more precise, one of the most difficult unsolved problems in American constitutionalism – perhaps a constitutional “abeyance” or silence – is what a president is supposed to do with an act (presumably passed over a veto) that directly encroaches on presidential power. It’s not to the credit of the Report that it suggests the question is easy. Or that it employs a text plus intent approach to interpretation that ignores the reality that most issues of presidential power must be confronted through a study of precedent and practice.

2. As Sandy has noted, the Report is written in a legalistic spirit. The most obvious absent factor relevant to our constitutional system (rather than the Framers’) are political parties. The Report ignores the possibility that the legislative and executive branches might be controlled by parties hostile to one another and that the congressional party might seek to encroach on presidential powers. This is essentially Cheney’s vision, even if it is a hangover from the days in which the Democrats controlled Congress. But by also ignoring the present situation of joint control of both branches by one party, the Report makes itself less relevant.

3. A more theoretical comment, not directly aimed at the Report, is that we should consider the nature of the constitutional change implied by Bush’s signing statements. As cited in the Report, the statements do not advance any systematic interpretation of the Constitution. They are conclusory, mechanical and so on. The supports an intuition I’ve always had, which is that some constitutional changes (or attempted change, as you like) shouldn’t be described as matters of interpretation, the rightful subject of the “Constitution outside the courts.” While they pertain to the Constitution, they are exercises of political power in the first instance. Politics, albeit politics of a special variety, can change the Constitution without offering an interpretation. At least, Bush is trying.

Comments:

Much as I admire your blog's incisive and nuanced discussion of the constitutional dimension of Bush's proclamations of prospective non-feasance (aka signing statements) I am puzzled by the failure of both sides in the debate between OLC alumni and the ABA to consider the possibility of a statutory addendum to the oath prescribed in Article 2, as a response to executive Caesarism. The first Congress apparently considered it legislatively appropriate to legislate on this matter when it rejected a proposal to add the words “So help me, God”. Later Presidents have added that phrase at their discretion-- the same sort of discretion that underlies their issuance of signing statements. It might be desirable, and to some extent, feasible, to specify the common understanding of what the terms of the Article 2 oath mean, by way of a solemn inaugural promise to submit to judicial determination of the validity of any law deemed to exceed legislative authority, etc. The advantage of greater legal particularity would be seen in ensuing impeachment proceedings. Legislative remedies of course must await the distant day when Congress acquires a sense of its duties, history, and responsibilities.
Larry George
 

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