Larry Tribe on the ABA Signing Statements Report

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Laurence Tribe

1. Preface

My starting point -- and it is one I share with what I take to be the views of the ABA panel on signing statements -- is alarm at the unprecedented frequency with which the incumbent President has signed congressional enactments into law -- including enactments that seem to me entirely constitutional exercises of Congress's power to structure the executive branch; regulate that branch's military and civilian investigations, prosecutions, or detentions; or engage in one of Congress's other undoubted heads of lawmaking authority -- while brazenly signaling his position and that of his administration that giving those enactments their intended effect would cut impermissibly into his breathtakingly inflated conception of illimitable presidential power and prerogative.

Given the distress we should all feel at this proclamation of nearly monarchical executive authority, it's tempting to applaud the ABA panel's forthright attack on presidential assertions of such sweeping power through a practice that at first blush looks very much like an end run around the veto process -- a device that appears to defy the Constitution's deliberate omission of a line item veto, to avoid political accountability, and to deprive Congress of the constitutionally guaranteed opportunity to override a presidential veto by the requisite 2/3 majority in both houses whenever such supermajorities can be assembled. That temptation is reinforced by the panel's unusually distinguished composition, with a membership that includes some of my own most brilliant former students and talented colleagues and most accomplished friends, factors that add to the awkwardness and pain of challenging the panel's analysis and contesting its entire approach to the problem.

For those reasons, I would have been happy to keep my views to myself in light of the forceful and eloquent challenges to the panel's approach and its premises already to be found in print or on the internet by a distinguished former assistant attorney general in charge of the Office of Legal Counsel (OLC) Walter Dellinger, and by a group of former members of that Office.

However, in a Boston Globe article appearing this past Saturday, August 5th -- an article otherwise reflecting the always fine journalistic work of Charlie Savage, who was apparently the first to report the staggering number of laws this President has signed while in effect declared his intention to trash them -- those challenging the ABA panel's analysis are characterized as essentially executive branch loyalists. The Charlie Savage article notes that one opinion piece defending presidential signing statements was written by law professors who had worked either in OLC under former President George H.W. Bush or in the legal office of the current President's State Department, that another opinion piece critical of the ABA panel was written by Clinton administration OLC head Walter Dellinger, that yet another, appearing in blog postings on the conservative National Review's website, was also written by a refugee from OLC circa 2001-04, and that a long essay posted this past week on several prominent blogs was written by a group of former Clinton Justice Department officials. The Savage article noted that "the Clinton lawyers' objections" had not "swayed" ABA President Michael Greco, who is reportedly urging the ABA to approve the task force's recommendations.

The ordinarily very well-informed Charlie Savage understandably supposed, it seems, that the executive branch experience of the chorus of critics had colored their views. Voicing the frequently justified premise that where people stand and what they see is likely to reflect where they used to sit, panel member (and my esteemed colleague) Charles Ogletree was quoted as saying that he wasn't surprised that "people closely connected to executive branch careers would object to [the panel's] report," or that former Clintonites would want the panel "to harshly criticize Bush," which "was not [the panel's] goal."

Lest anyone suppose that only executive branch groupies, Clintonistas, or perhaps Bush loyalists would challenge the panel's analysis -- or that only Bush-bashers would identify the problem as entirely one traceable to President Bush's particular and particularly bloated conception of presidential prerogative under the Constitution -- I thought I'd best speak up, however awkward doing so would feel, in support of the challengers, in order to explain my own strong disagreement with the ABA panel's diagnosis of the disease as well as with its prescribed remedy. As someone who never worked in any administration's executive branch, had no role in the Clinton administration, and has supported the Bush administration in at least some (although of course by no means all) of its substantive legal positions (e.g., with respect to the tracing of international banking transactions and with respect to the constitutional authority to search a congressional office), I'm not one who can easily be dismissed on the basis that defenders of the ABA panel have sought to dismiss the panel's critics to date.

2. Analysis

With that preface to explain why I set aside my reluctance to enter the fray against the ABA panel's position, let me say why I'm persuaded that the ABA panel has missed the boat.

Most fundamentally, it seems to me an exercise in shooting at phantoms to focus on presidential signing statements themselves and to highlight the increasingly frequent practice of "using" such statements to "challenge laws" (to quote from Charlie Savage in Saturday's Boston Globe) as though anyone really imagines that the mere fact of a formally worded presidential reservation about a statute, contained in a signing statement rather than in a veto message, would have some operative legal effect in any way analogous to that of an item veto or would even be given weight by a court in later deciding what to make of the law in question. The analogy to the plainly unconstitutional line item veto, of the sort the Supreme Court struck down in Clinton v. New York, thus fails entirely.

What is new and distressing in the current situation isn't primarily the frequency with which President Bush, in the course of signing rather than vetoing congressional enactments, says something about his equivocal intentions, or even his defiant views, in connection with their future enforcement or non-enforcement. Rather, what is new and distressing is the bizarre, frighteningly self-serving, and constitutionally reckless character of those views -- and the suspicion that this President either intends actually to act on them with some regularity, often in a manner that won't be publicly visible at the time, or intends them as declarations of hegemony and contempt for the coordinate branches -- declarations that he hopes will gradually come to be accepted in the constitutional culture as descriptions of the legal and political landscape properly conceived and as precedents for later action either by his own or by future administrations.

Indeed, I can't see making anything significant turn on the distinction between a law the president "signs" (in the sense of not exercising his veto power) and a law that takes effect when supermajorities of the House and Senate override a veto, whether based on a president's constitutional objection or otherwise. Equally, I can't see making anything of significance turn on what the ABA task force seems to take as critical -- namely, the distinction between (a) a law signed by the very president who later decides that one of its provisions, or more likely one of its applications, is unconstitutional, and (b) a law signed long ago that a subsequent president decides his constitutional oath would prevent him from enforcing.

If instead the problem isn't a series of particular abuses taking the form of judicially remediable violations of the rights of individuals or groups by presidential disregard of duly enacted shields but is instead a set of abuses not subject to particularized correction at the behest of injured individuals -- either because no individuals are indeed injured in any conventional sense (as where the abuses take the form of pure inaction or inattention rather than naked aggression) or because the real difficulty isn't this or that particular abuse but what Charlie Savage has rightly described as a sea change in presidential practice the whole of which is more alarming than the sum of its parts -- then we have the situation of a chief executive who has assumed a posture of mocking the law rather than taking seriously his duty to enforce it. Especially in the case of a chief executive who is barred by the 22d amendment from seeking re-election, it would seem that the only proper remedy for presidential posturing of that sort, assuming it to be serious enough to demand a remedy, is impeachment and removal from office, not a set of judicial declarations that the president had better shape up and use his veto pen rather than chuckling under his breath while he insincerely signs legislation he has no intention of faithfully enforcing.

As for the remedy seemingly endorsed by the ABA panel, I can only regard it as a prescription that is neither safe nor effective as a cure to a misdiagnosed disease. The idea of legislatively endowing Congress with authority to take the President to court, and of empowering the Article III judiciary with authority to declare the presidential use of signing statements a circumvention of Article I's provision for the exercise and override of veto power or a violation of the separation of powers generally -- as section 5 of Senator Specter's new bill would purport to do -- seems to me a clear non-starter. Although Bruce Fein has been impressively insightful in many of his criticisms of the current administration's theories of executive power, I think he errs fundamentally in arguing, as does the ABA panel, that Congress as an institution is injured by a President's announcement, while signing a law, that he really has no intention of abiding by it or, in what arguably comes to the same thing once one has decoded a particular President's rhetoric, that he will abide by it only in accord with his idiosyncratic views of his powers vis-a-vis those of the other branches. That is mere insult, not genuine injury -- just as Congress might be insulted but could hardly be deemed "injured," in any sense of which a court could properly take notice, by a president's contemptuous remarks in a State of the Union Address. And when a lower federal court or the Supreme Court holds that the attempt by Congress to arm itself with the power to vindicate its honor is inconsistent with Article III, represents an exercise in posturing by the legislative branch, and is without effect in subjecting the signing statement practice to judicial oversight, the ironic and even tragic impact will be to give an abusive president one more occasion to strut about, claiming vindication for his practices and for the avoidance of political accountability that underlies them, even though the well-informed will recognize that no such claim is warranted. So the proposed corrective is overwhelmingly likely not to work. The upshot would then be not only a badly conceived and ultimately impotent solution to a badly diagnosed problem but an occasion for unjustified presidential preening.

If and when any president actually injures or imminently threatens to injure somebody in defiance of a law previously enacted to provide a shield against a particular sort of executive abuse, the constitutionally appropriate remedy is for the injured individual, or a class of individuals threatened with such injury, armed if necessary with congressional legislation conferring standing, to seek declaratory and/or injunctive and/or habeas relief and for the courts to grant such relief, assuming they find the shield to be constitutional and the presidential defiance to exceed executive authority, notwithstanding any signing statement that may have accompanied the president's decision not to veto the law when enacted.

Going beyond the ABA panel's misdiagnosis of the problem as though signing statements themselves were the culprits, and going beyond the panel's misconceived solution, a central premise of the panel's final report seems to be that there's something basically wrong with a president's decision not to enforce a law he deems unconstitutional in whole or in part. But that is an indefensibly broad premise, one that cannot in general be maintained. Nothing in the Constitution's text, design, or history shows that a president's only legitimate options are either to veto an entire bill or to sign it and then enforce it in its entirety regardless of his good faith views as to the constitutional infirmities either of some part of the bill or of some distinct set of its possible applications. Anybody predicting that chaos will ensue unless presidents take their oaths to uphold and defend the Constitution to mean automatically obeying whatever an Act of Congress that they have signed into law tells them to do unless and until the Supreme Court relieves them of that obligation would need to explain why the nation hasn't long since been plunged into chaos by the fact that presidents have never taken so wholly juricentric (or parliamentary) a view of the constitutional universe -- a view that certainly isn't implied by the power of judicial review as recognized in Marbury v. Madison.

In any event, the Supreme Court, and indeed the entire federal judiciary, can't possibly be relied upon to rule upon everything in advance. If a President conscientiously concludes that a law would be unconstitutional if enforced literally in a particular circumstance and takes his oath to abide by the Constitution as a mandate that he avoid, whenever possible, any interpretation that would offend the Constitution as he conscientiously construes it, I can't imagine saying that the President should put his oath or his copy of the document aside on the theory that the confrontation that might arise if he does what Congress seems to have had in mind might, in due course, give rise to an authoritative judicial ruling vindicating his constitutional views but that, until it does, the words Congress chose must trump those the President thinks he reads in the Constitution. And a President who, on signing a bill into law, makes clear in advance some of the circumstances in which he predicts such an obligation to obey the Constitution will trump the literal mandate of the resulting statute is not automatically indicating a scofflaw attitude but might simply be doing everybody a favor by not hiding the ball. The fact that the sea change inaugurated by President Bush goes far beyond such helpful signaling is a symptom not of some systemic problem with signing statements as an institution that cries out for legislative remedy, or even of an institutional difficulty with presidential power to follow the Constitution as the president understands it even without judicial guidance. Rather, it is a symptom of how this particular President is abusing his power and bragging of his intention to go on abusing it.

When the Supreme Court sustained the action of President Coolidge [correction: Wilson] in firing a postmaster in violation of the Tenure of Office Act that had been passed by Congress in the landmark case of Myers v. U.S. (1926), nobody on the Court proposed that the President should have felt bound by that Act (notwithstanding its intrusion into what many regarded as a genuine presidential prerogative and its delegation to the Senate of a role in the discharge of a federal official, in a self-aggrandizing exercise of power that we would today regard as a violation of Bowsher v. Synar) just because it had not yet been declared unconstitutional, or that something should turn on whether it was Coolidge or one of his predecessors who had signed the Act into law, or on whether it had become law over a presidential veto or by mere majority. If a president signs a law thinking it to be constitutional and later comes to have a clearer or better understanding of the Constitution's meaning on the point, can it be that he is estopped by his mistaken failure to wield his veto pen and must now proceed to ignore the Constitution as he has come to understand it? Surely that can't be the position; yet it seems to follow from the ABA task force's premises. If such hypotheticals seem inapposite to the nation's experience with the current president, we need to keep in mind that institutional remedies designed to fit pathological power-holders might themselves prove to be misfits in their overall impact on what should be an enduring system of checks and balances.

In his excellent New York Times op-ed piece on this issue last Monday, Walter Dellinger posited congressional legislation requiring a president to use physical force to seize a brain-dead patient and place her on artificial life support that she had made clear she would never have authorized and asked whether the ABA panel really believes the president would have to comply. It was a cleverly couched hypo in part because of the direction in which it chose to spin the Schiavo fiasco. But it would have been equally telling had it been spun the other way: Imagine an Act of Congress directing the President to cause those in the chain of executive command all the way down to the lowliest orderly in a federally run hospital to disconnect life support from any patient found by specified cost-benefit formulas to be burdening taxpayers more than the patient's expected quality of life, discounted over time, could justify. Would anybody defend the proposition that the President, including the one who in a moment of OMB-induced madness had permitted such an outrage to become law, ought to obey such a statutory directive in hopes that some court would intervene in time to save the poor victim from certain death?

One could multiply such hypothetical situations indefinitely, generating not only cases in which waiting for judicial intervention would be impractical but cases in which one would have to wait forever because the constitutionally dubious statute would issue a command -- e.g., that the President not remove a certain cabinet member for a stated time, or not exercise his veto or pardon or treaty-making power in stated circumstances, or not use his power of appointment in stated ways -- compliance with which would never yield a judicially congnizable complaint. Can it be that the Constitution contemplates executive disregard of the Constitution in such cases, either generally or by any president who fails to catch the problem by vetoing the bill when it first reaches his desk? I think not.

So I conclude that the ABA panel has painted with a hopelessly broad brush in its analysis of presidential decisions to defy statutory commands not (yet) found unconstitutional by the Supreme Court, has pointed to the wrong phenomenon in identifying signing statements announcing the intent to engage in such defiance as themselves the source of some constitutional difficulty, and has suggested a remedy for that phenomenon that, far from correcting any problem, would compound the current difficulty. The panel's good intentions, and its evident wish to preserve internal consensus by skirting at all costs any direct critique of the incumbent President, are no substitute for a coherent analysis of the real problems that confront us or for a solution that offers some actual relief from those problems.

I must emphasize that, in criticizing the panel's analysis and its conclusions, I do not at all mean to be disagreeing with the proposition that President Bush has abused the practice of using signing statements as signals of presidential intentions regarding both ambiguous statutes and statutes with embedded unconstitutional provisions or distinct unconstitutional applications. But the fact that the incumbent President has used signing statements in ways that expose a certain cynicism in signing rather than vetoing measures he has no intention of applying and enforcing as Congress manifestly intended, asserting that he regards Congress as having trespassed on his constitutional prerogatives, is objectionable not by virtue of the signing statements themselves but, rather, by virtue of this President's failure to face the political music by issuing a veto and subjecting that veto to the possibility of an override in Congress, and on occasion also by virtue of the inflated view of executive prerogative the President has announced in particular cases.

On the related matter of presidential signing statements that tout the "unitary executive" theory in particular, what seems crucial to recognize is that the concept of the "unitary executive," as it is being bandied about both by President Bush in his signing statements and by many of his critics, is much too protean to represent a useful organizing principle for assessing the undoubtedly dangerous and inflated views of unilateral presidential power that have characterized much of what the Bush administration has done -- with respect to Guantanamo, the treatment of detainees in the so-called "war on terror," the NSA's once-secret program of warrantless electronic surveillance in defiance of FISA and in purported reliance on the AUMF, and much else -- and that attacking the administration for its "unitary executive" mantra, as a recurring theme in many of the signing statements to which the ABA Task Force's final report objects, is more distracting than illuminating.

Far more useful would be deflating the concept itself, demonstrating its obfuscatory character, and insisting, in some more focused form than the Task Force final report does, that the Necessary and Proper Clause of Article I empowers Congress, not the President, both to structure and to regulate the overall conduct of officials within the executive branch -- an undertaking entailing an exercise of lawmaking authority that is not part of "the executive Power" vested by Article II in the President.

Finally, insofar as President Bush has exercised his powers to engage in surreptitious electronic surveillance without court-issued warrants in violation of the FISA, on the basis of an implausibly broad construction of his inherent Article II powers and a reading of the AUMF that was rightly repudiated in a slightly different context by the Supreme Court's recent Hamdan decision, the "fix" reportedly negotiated between The White House and Senator Arlen Specter, in which the legality of the NSA program of warrantless surveillance would be submitted for adjudication on the basis of a one-sided presentation to the FISA court by the Executive Branch -- which alone would be authorized to control the evidence to be considered, the forum for its consideration, whether the proceedings would be public or secret, and whether the result would be published or kept under wraps, and which alone would be authorized to appeal an adverse ruling to an Article III court including the Supreme Court -- is as transparently phony and futile as is the suggestion of a congressionally enacted vehicle to confer standing on someone to obtain a judicial ruling on the legality of this President's signing statements. Congress has ample authority to identify various groups as likely victims of the contested warrantless wiretapping practice and to authorize such groups to sue in federal court to obtain a derfinitive ruling, subject to Supreme Court review, of the constitutional and other legal questions presented. But despite the precedent of the FISA itself for the limited purpose of authorizing particular instances of electronic surveillance, I am doubtful that Congress has constitutional authority to remit these constitutional questions to definitive resolution by a secret, one-sided
pseudo-adjudication on the basis of a non-adversary presentation fully controlled by one side.

Whatever else one might say about the sound of one hand clapping, it is most assuredly not the sound one hears when a genuine court resolves a genuine case or controversy in the way that courts have functioned for centuries, whether with or without special safeguards to protect national security from the perils of leaky courtrooms.

What do the ABA Task Force attack on the phantom of the Bush signing statements, the legislative platform for challenging those statements judicially that the attack is inspiring, and the phony Bush-Specter deal for an asymmetrical whitewash of the contested program of NSA surveillance, have in common? All three -- the first two from genuine confusion and the third from something less benign -- would compound rather than correct the distortions in the separation of powers and the system of checks and balances that the Framers had the farsightedness to design.
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