I understand the critique that too often political questions morph into legal ones, but really, the signing statement issue follows a different model. That's the model where everyone knows what the Constitution actually provides, but you have some lawyers who are able to come up with some creative arguments why we shouldn't follow it. Sometimes these sorts of arguments succeed-- see, e.g., Wickard v. Filburn (holding that an activity that occurred on a person's own farm was plainly not "commerce among the states" could nonetheless be intrusively regulated by the federal government)-- so we shouldn't be too scornful of them. But that's what's going on here.

It's perfectly clear that the President's authority to check unconstitutional legislation is contained in the Presentment Clause of the Constitution, which allows him to veto legislation. (He can also appoint private counsel for the government and have the executive branch argue that a statute is unconstitutional in court. And with criminal statutes, he may use discretion not to prosecute. The President can also resign his office if he truly feels he cannot enforce the law.)

It's also perfectly clear that line-item vetoes are unconstitutional under controlling authority-- controlling authority that I might add emphatically and persuasively rejected the position of the former Clinton OLC folks now arguing for signing statements, and exposed that reasoning as completely and utterly without merit.

The presence of the all-or-nothing Presentment Clause, and the unconstitutionality of line-item vetoes, makes it clear that the President is supposed to veto unconstitutional (including unconstitutional-as-applied) legislation. It's purely because Presidents don't want to take the political hit of vetoing legislation that they instruct OLC lawyers to draft convoluted defenses of signing statement line-item vetoes.

It's just a make-weight argument, concocted by lawyers who don't like the fact that the Constitution sometimes forces Presidents to do things they would rather not do. It's designed to provide a talking point for those who trumpet executive power, nothing more.
 

The problem with your position is that it's more or less a given in a democracy that the side that lost the election is going to think that the winning side's people are instituting bad policy. It's only when the people who elected you start thinking that your policies are bad, that it has any implications for the legitimacy of your continuing in office.

I tend to think that the debate is not "distorted" by the fact that we're not a parlementary system. Unless you take that system as the default, somehow. We're having the appropriate debate for OUR system.
 

Re Dilan's comment: The difference between the two of us is that I find the Constitution considerably less "clear" than Dilan does on the issues under discussion. At the very least, one is unlikely to convince people on the other side (whatever the issue) by proclaiming that the Constitution "clearly" rejects their position, whether the topic is signing statements, affirmative action, or, indeed, the extent of Congress's power under the Commerce Clause.

The question for those who take Dilan's position is as follows: Would you support amending the Oath of Office Clause to (something like) the following: "I will support, protect, and defend the Constitution of the United States, but only as it is defined by the Supreme Court of the United States"?

As for Brett's response, I should make it clear that I do not support "pure parliamentarianism." Indeed, I tried to make it clear that my preferred "no-confidence" system would make it impossible for an opposition party to take power through the no-confidence vote. Moreover, I should have specified as well that any vote of "no confidence" would have to be supermajoritarian, which would, as a practical matter, requires that there be some degree of support from the President's own party for the no-confidence measure.

I agree with Brett that the debate we're having is, alas, structured by aspects of our Constitution (i.e., the impeachment clause's emphasis on "high crimes and misdemeanors"), but that is independent of the fact that we are a presidentialist system per se.
 

I tried to make it clear that my preferred "no-confidence" system would make it impossible for an opposition party to take power through the no-confidence vote. Moreover, I should have specified as well that any vote of "no confidence" would have to be supermajoritarian, which would, as a practical matter, requires that there be some degree of support from the President's own party for the no-confidence measure.

Wouldn't the same result be achieved by expanding the scope of impeachable offenses?

Ultimately, though, I'm afraid that your proposal is itself too legalistic. Whatever the Constitutional provision, whatever the established practice, I can't imagine the Congress we've had for the last 4 years taking any action against Bush -- the real scandal has been the abdication of Congressional responsibility, not the lack of Congressional power.

I'm less inclined to see the current problem as a structural failure and more inclined to see it as a political one.
 

"What strikes me about the debate, though, is precisely its 'legalistic' nature. That is, opponents of President Bush seem to believe that they must, in effect, proclaim that he is acting unconstitutionally rather than, say, 'merely' unwisely or even frighteningly, in his articulation of his powers under Article II. Concomitantly, supporters seem to believe they win the debate if they can demonstrate that Bush is in fact following a fairly well-established legal practice, going back at least to President Woodrow Wilson, of issuing such 'signing statements.' "


Well I have to agree with Prof. Tribe's basic observation that the signing statements per se are not the real problem, and I don't think there's anything 'legalistic' about the current situation except the outrageously dishonest sophistry of the administration's supporters.
What is political about establishing the elements of a crime under a statute?

All of their policies derive from a single consitututional claim:

""In light of the text, plan, and history of the Constitution, its interpretation by both past Administrations and the courts, the longstanding practice of the executive branch, and the express affirmation of the President's constitutional authorities by Congress, we think it beyond question that the President has the plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks upon the United States on September 11, 2001. Force can be used both to retaliate for those attacks, and to prevent and deter future assaults on the Nation. Military actions need not be limited to those individuals, groups, or states that participated in the attacks on the World Trade Center and the Pentagon: the Constitution vests the President with the power to strike terrorist groups or organizations that cannot be demonstrably linked to the September 11 incidents, but that, nonetheless, pose a similar threat to the security of the United States and the lives of its people, whether at home or overseas. FN32 In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make."

{ FN32 - We of course understand that terrorist organizations and their state sponsors operate by secrecy and concealment, and that it is correspondingly difficult to establish, by the standards of criminal law or even lower legal standards, that particular individuals or groups have been or may be implicated in attacks on the United States. Moreover, even when evidence sufficient to establish involvement is available to the President, it may be impossible for him to disclose that evidence without compromising classified methods and sources, and so damaging the security of the United States. See, e.g., Chicago & Southern Air Lines, Inc, 333 U.S. at 111 ("The President... has available intelligence services whose reports are not and ought not to be published to the world."); see also Ruth Wedgwood, Responding to Terrorism: The Strikes Against Bin Laden, 24 Yale J. Int'l L. 559, 568-74 (1999) (analyzing difficulties of establishing and publicizing evidence of causation of terrorist incidents). But we do not think that the difficulty or impossibility of establishing proof to a criminal law standard (or of making evidence public) bars the President from taking such military measures as, in his best judgment, he thinks necessary or appropriate to defend the United States from terrorist attacks. In the exercise of his plenary power to use military force, the President's decisions are for him alone and are unreviewable. }

John Yoo, The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them, OLC (2001.09.25), Conclusion.

Think about it folks -- the claim there is that the President may kill or imprison anyone at any time for any reason. In short, that the Constitution gives the President of the United States the powers of a Roman Emperor.

Anyone who says that notion is Consitutional is either a liar or an idiot, and the people who are running this administration are plainly BOTH. Such a proposition is diametrically opposite to the plain meaning of the Constitution and utterly contrary to the principles of the American Revolution.

And I don't care how many fools think otherwise.

The real problem here isn't the Constitution, it's the people of this country. The Constitution does have it's faults, but the changes I think we need are proportional representation in the House, the elimination of the Electoral College, and some form of population based apportionment in the Senate, say 1-6 seats based on size.

But no Constitution is worth anything if it's only used as a smokescreen for criminals and tyrants, and regardless of anything else, the number one priority for this nation going forward is to make very certain that George Bush and Dick Cheney are punished to the fullest extent of the law for their crimes -- even if it takes 20 years or more. Until we do, we won't amount to anything but but what we are right now: a disgraceful failed state wallowing in hypocrisy and foolishness.
 

"Re Dilan's comment: The difference between the two of us is that I find the Constitution considerably less 'clear' than Dilan does on the issues under discussion. At the very least, one is unlikely to convince people on the other side (whatever the issue) by proclaiming that the Constitution 'clearly' rejects their position, whether the topic is signing statements, affirmative action, or, indeed, the extent of Congress's power under the Commerce Clause."

The problem is, on this one the Constitution IS clear. There's a procedure for Presidents to deal with objectionable legislation. And the text of the Constitution rejects line-item vetoes and forces the President to deal with legislation wholesale. Instead of using that procedure, the President tries to have it both ways by signing the legislation but refusing to enforce it. I might add, though this doesn't effect the analysis, that the reason the President is doing this is not some high minded concern over the Constitution, but because of the poltical costs of a veto.

And you have a controlling recent Supreme Court case saying line-item vetos are unconstititutional.

So what we have left are lawyers making creative arguments. There's nothing wrong with that-- I do it all the time-- but just because lawyers can muddy the waters doesn't mean that the text of the Constitution isn't clear.

"The question for those who take Dilan's position is as follows: Would you support amending the Oath of Office Clause to (something like) the following: 'I will support, protect, and defend the Constitution of the United States, but only as it is defined by the Supreme Court of the United States'?"

No. First of all, Presidents have to obey lower court opinions too. Second, Presidents DO have an obligation to follow the Constitution even when not ordered to by the Supreme Court, by VETOING UNCONSTITUTIONAL LEGISLATION. What Presidents have no Constitutional power to do is sign legislation with their fingers crossed behind their backs, then refuse to enforce laws that they signed. No amendment to the Oath is necessary, because the Presentment Clause prohibits Presidents from doing that.
 

What Presidents have no Constitutional power to do is sign legislation with their fingers crossed behind their backs, then refuse to enforce laws that they signed. No amendment to the Oath is necessary, because the Presentment Clause prohibits Presidents from doing that.

Excuse me for jumping in but I have been discussing this issue on another thread in this blog. I agree with your above statement but I have a question for you. What should the president do if his veto is overridden? In my view, a signing statement is legitimate in such circumstances to the extent the signing statement is designed to secure judicial review. The more difficult case is presented when justiciability is impossible notwithstanding the good faith efforts of the executive. As an aside, the primary problem with the Bush Adminstration's signing statements is that seem designed to avoid judicial review.
 

Just a word to the wise: this whole no-confidence idea would have a lot more credibility if it were presented at a time when there was an unpopular Democratic president facing a hostile Congress. Then everyone could see that Prof. Levinson supports this idea on its abstract merits, not merely as an idle left-wing fantasy du jour, to be forgotten as soon as a Democrat is elected.
 

I love reading this blog. I am not a lawyer but know a little bit about history. It might make you feel good to compare the President to "a feudal lord (or pre-revolutionary official in France), who "owns" his office until Jan. 20, 2009," but I have, apparently, news for you. It is the members of SCOTUS that better fit the comparison, as the lords and officials you mention held their offices for life.