Balkinization  

Sunday, August 06, 2006

Larry Tribe on the ABA Signing Statements Report

Guest Blogger

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.

Comments:

Prof. Tribe:

Very interesting comments. I have questions regarding a couple of passages. First:

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.

Is it fair to say that this passage contains an implicit assumption of judicial supremacy? Assuming it does, is that assumption consistent with the following passage:

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.

Thank you in advance.
 

Although Bruce Fein has been impressively insightful in many of his criticisms . . ., 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, . . .

When the signing statement rises to the level of countering the legislation - in whole or in part - as opposed to engaging in an exercise in Executive discretion - then it seems to me that Fein and the ABA are correct. Having the President write legislation does damage the branch of government that is tasked with that duty and given that power under the Constituion. Similarly, if Congress defunded the Executive and Judicial Branches to set entities reporting to and through Congress to enforce and interpret the laws, the Presidency and the Judiciary would be damaged. I can see an argument over which signing statements might rise to the level of legislating - but I cannot disagree with the conclusion that when the President engages in legislating to supercede Congressional legislation he is harming the legislative branch.

IMO, the Constitution "believes in" and supports the concept of branches of government engaging in turf wars. Vigorously even.

I also think that one item flying somewhat under the radar is that the President is concomittantly claiming the ability to keep lawbreaking and law re-writing exercises conducted pursuant to the Presidential signing statements under the cover of "state secrets." This does seem a bit more unusual than the historic approach to signing statements. Coupling a signing statement indicating the PResident feels authorized to break the law, with a Presidential Privilege claim thatwhen the Congressional laws are broken, the lawbreaking can be concealed and can continue under the invocation of "state secrets" shifts the analysis on standing and case in controversy.

IMO, that is a validation of the proposal to grant standing to Congress, even absent a particular case in controversy. I'm not sure if it is the best or the only approach, but I am sure that the concept of not only using the assets and personnel of the Executive Branch to break the law, but also to provide memoranda and the best methods of breaking the law and to provide silence and inaction of prosecution, and to additionally provide a stream of legal cover for the ability to hide the lawbreaking under privilege claims, all these make for some twists that are not addressed by waiting for a case in controversy to present itself.

It seems to me that many of the issues raised (if the President changes his mind later about constitutionality, if Congress passes legislation requiring a President to place someone on life support against their wishes, etc.) are addressed by the fact that the Executive branch, though its actions, has the ultimate power to determine where and how issues are raised before courts. In the exercise of that discretion, it can agree to consent orders allowing for injunctions or continuances pending appeals and has tremendous capacity to frame the issues as they arise for review.

It can also, where active enforcement is a factor, engage in all the many exercises of prosecutorial discretion that are a part and parcel of the Executive branch. That said, it cannot utilize the signing statements as a method of exceeding the bounds of discretion that are alloted to the Executive Branch, or so it would seem.

It is true that the ultimate Congressional response is impeachment. However, I do not believe that means that other Congressional responses, such as conferring standing on Congress (or others) to object to a signing statement as an abuse of the discretion that resides in the Executive, rising the level of legislating by the Executive, is an inappropriate option.

In that context, it will not be an option that will present itself in respect of many "normal" signing statements, which lie within ordinary bounds of Executive discretion, but it would help to circumvent the secret lawbreaking, where ability to proceed with a case in controversy presupposes that the Executive will turn over evidence of its own wrongdoing.

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 . . . "

My explanation would be very reliant on a cross section ofleagl and factualy items. First, as per above, the current situation also involves coupling the Presidential actions in response to legislation with an approach of state secrets privilege assertion that is calculated to prevent review of cases where injury exists.

Also, in the past we have been served at times with very strong wills in the OLC and DOJ who lived up to independent professional obligationas and duties, as opposed to acting as if giving the "best argument" for breaking the law were a duty of all lawyers to their clients,or as if motivating and soliciting lawbreaking were an acceptable realm of activity for the Justice department. Finally, many of the prior signing statements do seem to go more to issues of the reach of discretion, as opposed to the disregard for, or Executive branch rewriting of, the statutes.
 

"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."

I won't accuse Larry Tribe, who has forgotten more about the Constitution than I will ever know, of not reading the document. But he certainly ignores the Take Care clause when making this argument. There's a HUGE difference here. If the President thinks the law violates the Constitution and he signs it any way, he has either violated the take care clause by signing it (if that clause applies to the Constitution itself) or he violates it when he refuses to enforce the law (if that clause only applies to the laws passed under the terms of the Constitution). Either way, the President has committed an impeachable offense.

In contrast, if the President vetos, mentions constitutionality in his veto message, and is overridden, he has acted consistently with the Constitution.

Frankly, I don't understand why Tribe, Dellinger, and all the OLC guys think that the veto power is so unimportant. I don't actually think Congress passes that many unconstitutional statutes, but if you do, that's one of the things the veto power is there for! This is the President's actual role in interpreting the Constitution. But once things become law, sorry, it is entirely the province of the judiciary to say what the law is. And yes, Tribe is misrepresenting Marbury to imply 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."

Again, Tribe is being dishonest here. Of course he can see the difference-- he's just not admitting it. The difference is that if the law's unconstitutional, and you have a chance to veto it, you do. (That said, in the second scenario, the correct approach is to go to court and get it declared unconstitutional, not to usurp the role of the judiciary.)

"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."

Since Tribe knows the Constitution, again, I must assume he is simply lying. OF COURSE there's something in the Constitution that provides this. There's the Take Care clause in Article II, which requires the President to follow the laws, not pick and choose. And there's the Judicial Power clause in Article III, which places the entire Judicial Power of the United States in one Supreme Court and such inferior courts as Congress may create.

Tribe may have some unarticulated argument as to why those provisions don't really stop Presidents from deciding to sign laws and avoid the political cost of a veto and then disobey the laws they sign, but he can't seriously be saying that NOTHING in the Constitution touches on the matter!

"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."

Presidents say and do lots of things. That doesn't mean they get to define the Constitution through their conduct. Every President, for instance, has consistently claimed the War Powers Resolution is unconstitutional. However, it's a pretty clear exercise of Article I power under the Declare War clause, the Raise And Support Armies clause, and the Make Rules for the Armed Forces clause.

Presidents lie. They cover things up. They assert broad executive powers. They claim to be above the law. This is one reason we have an independent judiciary. Perhaps Tribe would rather live in a country that reposes the Judicial Power in the Executive. I wouldn't. In any event, we must remember that it is a Constitution we are expounding-- and it was neither written by modern Presidents nor Laurence Tribe.

"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."

Tribe's knocking down a straw man here. As long as there is an actual controversy under the law, the President can certainly seek relief from a Court against an unconstitutional interpretation of the law, or he can file an amicus brief in a pending suit. And he doesn't have to wait for the Supreme Court to act-- a District Court decision is an exercise of the Judicial Power and binds the President too.

Indeed, the flip side of this question should be asked to all the defenders of signing statements. Does this mean if the President LOSES in the District Court, he can continue to ignore the law because the Supreme Court hasn't spoken? What if the Supreme Court does speak? There's a Presidential tradition of ignoring the Supreme Court as well, you know (see Jackson, Andrew). Does the President still get to assert that the law is nonetheless unconstitutional?

There's a reason we make the courts the aribter of these things. Again, Tribe knows this perfectly well. But apparently, he'd like a different Constitution than the one that is actually in place.

"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."

Well, there's a procedure for that. Alongside the President's veto is something called a veto message, in which the President can point out the unconstitutional applications to Congress. And since that's actually IN the Constitution, it carries a bit more weight than a Laurence Tribe blog post.

"When the Supreme Court sustained the action of President Coolidge 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."

True enough. But had Coolidge LOST that case, he would have had to obey the Court's judgment. Further, had the lower courts issued an injunction restoring the Postmaster to his job, he would have had to obey that as well.

Most importantly, Tribe is ignoring the fact that NOBODY, private litigant OR government body, who correctly predicts a Supreme Court ruling that rules something unconstitutional faces a legal sanction. For instance, Mr. Johnson, who burned his American flag in Texas, correctly anticipated that his conduct was going to be declared to be constitutionally protected. If you turn out to be RIGHT about the Constitution, you do not face legal sanction, as Coolidge didn't in the Postmaster case. But that doesn't mean that the President has an inherent power of office to sign legislation which in his unilateral judgment and then, based on the same judgment, refuse to enforce it. It just means that if he lucks out and the courts agree with him, he's in the clear, just like a flag burner is.

"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?"

Tribe is ignoring that the President can take it to Court. He can also recommend legislation to Congress (another of his prescribed powers under the Constitution) to fix the law. And he can certainly resign from office if he doesn't believe that he can enforce the law.

"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."

In such a situation, the President should first veto the law. If the law is passed over the veto, file a declaratory and injunctive relief suit to get the law declared unconstitutional. But if the courts say the President has to do it, he has to do it.

"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?"

Again, Tribe is just lying here. He knows that there has been a Declaratory Judgment Act in place for 70 years. You don't have to wait until someone else sues.

"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."

Those are ridiculous hypotheticals. Remember, the actual universe of bills we are talking about is far narrower, because the President will use his veto pen (knowing he can't simply thumb his nose with a signing statement) and the bills will have to get passed with supermajorities. But then, is Tribe SO sure that relief will not be judicially cognizable? Does Tribe really believe that the President cannot seek a declaratory judgment or injunction when he desires to use one of the constrained powers? I highly doubt there is any ACTUAL situation where Congress will pass a law OVER a President's veto that cannot be challenged in court if necessary before it impinges on an Article II power. (It's worth it also to mention that there are actually VERY few Article II powers that are ACTUALLY outside the scope of proper Congressional regulation. But that's another issue.)
 

Prof. Tribe points out that the "necessary and proper" of Article I does not appear in Article II. I would add that it also does not appear in Article III.

It is said that bad cases make for bad law. Perhaps bad presidents make for bad signing statements may sum up this situation under discussion.

Also, supremacy in constitutional interpretation does not vest in any one of the three branches. Even "We the People" do not necessarily agree on what the Constitution means.
 

Prof. Tribe:

Signing statements should be prohibited except in a very narrow class of circumstances, and the touchstone must be a good-faith effort by the executive to secure expeditious judicial review. As you note, impeachment provides the only legitimate basis for constraining a president who violates his oath of office. However, impeachment is, to say the least, a blunt tool and will generally be reserved for the most obvious and egregious examples of executive abuse. (One can argue whether impeachment ought be utilized more or less often; my point here is simply that it is a rare event.) That being so, it is crucial that there be a meaningful test for when the executive is exceeding his constitutional authority. There must be a way to judge whether a president is employing singing statements for legitimate or illegitimate purposes because only then can the impeachment mechanism be an effective check.

I do not accept the argument that due to the confluence of omnibus legislation and the absence of a line-item veto a president is justified in signing a bill and then issuing a statement declaring he will not enforce or will disobey certain provisions. Instead, the president should simply veto the bill in its entirety. If this were to happen in a sufficient number of cases, one of two reforms would likely be instituted: a push for a constitutional amendment to provide line-item veto authority to the executive; or the end of omnibus billmaking by Congress. Either result is preferable to the chief executive signing a bill into law but then announcing he will neither enforce nor obey the law or portions thereof. If the president thinks a bill is unconstitutional he should veto it. Without the president performing this prescribed constitutional role, the system will not generate the pressure required to stimulate necessary reform.

There are, however, certain circumstances in which signing statement are legitimate. As noted above, a prerequisite is that the president must first have vetoed the legislation, and that is my primary objection to your view on the legitimacy of signing statements. If, however, there has been a veto followed by an override of the veto, the president may legitimately issue a signing statement declaring that he will not obey or enforce the law. Prof. Lederman has generally set forth the correct framework in his articles on the topic. But there is one crucial caveat: In my view, the primary goal of the signing statement must be to secure judicial review. For that reason, the signing statement should clearly identify the offending provision and clearly explain the theory of constitutional objection. The signing statement should declare specifically whether the executive will elect non-enforcement or disobedience and the signing statement should further detail how the chosen path -- non-enforcement or disobedience -- will facilitate judicial review. If the Supreme Court decides the constitutional issue then that settles the matter. If justiciability fails notwithstanding the good faith efforts of the executive to secure review, then the executive may refuse to enforce and/or disobey assuming the other criteria in Prof. Lederman's framework are satisfied.
 

If this were to happen in a sufficient number of cases, one of two reforms would likely be instituted: a push for a constitutional amendment to provide line-item veto authority to the executive; or the end of omnibus billmaking by Congress.

Omnibus bills are a critical feature of both Congressional power vis a vis the Executive and of the deal-making necessary to pass a statute in the first place. It's hard for me to see that eliminating that practice would increase Congressional authority.

Plus, there are technical issues, e.g., defining what constitutes an "omnibus" bill. A single statute might have just 2 clauses, one fine, the other dubious.

I think you may be creating more problems than you're solving.
 

As always it is a delight when this constellation of guest/rare contributors aggregate for interchange of ideas on a timely and important issue.

I share the view that there is something anomalous in this administration's implementation of signing statements; I worry that some future demagogue might attempt to revert to such a rule by secret fiat.

I find agreement between Tribe's comment that the ABA panel did not go far enough, and, indeed, had chosen a circuitous route to perhaps a fictitious destination, and the gulfac-blog article authors' assessment reaching a similar nonplussed conclusion. My take was the ABA needed to capture the issue but the panel's composition having been 'balanced', there was No Way it could reach affirmative decisions: that is, in order to write from a consensus standpoint, the authors of the report opted for reductio ad absurdam, much like the cloture abolitionists suggest sequestering chamber rules is a suitable way to visit an issue with a yea-nay voting opportunity, rules be damned; forcing an argument to absolutist extremes in a statement of executive recommendations is to neuter the hard work the authors performed to develop their understanding; it is a smokescreen hiding their inability to attain consensus or anything even approaching it, on substantive issues. I agree with prof. Tribe, they simply obfuscated. To be fair to ABA, it included an initial disclaimer about brevity of timeframe in which to research and write their report. I found strongest the features in the report linking to further research materials; in sum, the work has yet to be done.

Though, in reading prof. Tribe's comments now, as well as, interestingly, his elaborate presentation in 2002 at the time the presidential commissions for CSRTs were under evaluation by congress, I find he is out in front on these issues. I am glad that some of the most experienced in these matters are allowing leeway for a president to nuance execution of his responsibilities. But the volume, hostility, and illegitimacy of many of this president's decrees coupled as they have been with affontery vis a vis congressional wishes, bespeaks an institution buckling under the weight of autocracy.
 

David Shaughnessy: You describe a careful and reasonable series of steps. But really, why bother when the Constitution is just a goddamned piece of paper?
 

Omnibus bills are a critical feature of both Congressional power vis a vis the Executive and of the deal-making necessary to pass a statute in the first place. It's hard for me to see that eliminating that practice would increase Congressional authority.

Plus, there are technical issues, e.g., defining what constitutes an "omnibus" bill. A single statute might have just 2 clauses, one fine, the other dubious.

I think you may be creating more problems than you're solving.


I agree that impelementing this approach will create pressure on the status quo. But, I think, that pressure is healthy and the system will adapt. Moreover, I don't see the practical problems being at all insoluble. Constitutionally suspect legislation probably should be isolated rather than imbedded in the bowels of some omnibus bill, since that will facilitate judicial review. It is the artifical absence of such pressure through omnibus legislation that promotes the use of extrajudicial devices like presidential signing statements. All that said, my primary argument is not that signing statements are never legitimate but that there must be a touchstone for judging their legitimacy: for me, that means the purpose must be to secure judicial review.
 

my primary argument is not that signing statements are never legitimate but that there must be a touchstone for judging their legitimacy: for me, that means the purpose must be to secure judicial review.

I agree with this.
 

________________
TIDYING UP: cites:
Tribe December 2001 testimony senate Judiciary Committee, on martial law, though the author certainly would characterize the testimony's topic as broader.

Waging War, Deciding Guilt: Trying the Military Tribunals. NK Katyal; LH Tribe; in Yale Law J, also available at SSRN, link to abstract, scroll down, click on to download full 57page pdf.
 

"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."

I could be wrong but isn't it fairly clear that Scalia's dissent in Hamdan, joined by Alito and Thomas, believe that a signing statement has a legal effect?
 

Argentina Primera Division Wrap: Burruchaga sent off, Boca into third

Agen Bola indo11.com reported, Atletico Rafaela coach Jorge Burruchaga was sent off before his team’s 2-1 loss at Boca Juniors in the Argentina Primera Division.
Veteran Juan Roman Riquelme put Boca ahead with a sharp strike on 30 minutes before Lucas Albertengo levelled the contest four minutes before half-time.
But Boca had the last laugh over their coach-less opponents as Emanuel Insua struck the winner in the 68th minute.
Argentinos enjoyed a crushing 3-0 win at San Lorenzo, who recorded their first loss of the campaign.
Defender Julio Barraza got the first goal on 11 minutes with striker Hernan Boyero scoring nine minutes after half-time.asreported byIndo Eleven.
Rodrigo Gomez scored the third in the 64th minute, capping a great victory for Argentinos.
Gimnasia were buoyed by an opening-minute own goal as they went on to record a 3-1 triumph at home against Rosario Central.
Paulo Ferrari’s unfortunate moment kick-started Gimnasia and they managed to double their lead through Federico Rasic after 19 minutes.
Rosario pulled a goal back through Franco Niell in the 38th minute but the points were wrapped up for Gimnasia by a Ignacio Fernandez strike on 84 minutes.
Source : www.indo11.com


 

Burns set to face Wellington

Agen Bola indo11.com reported, Former Adelaide forward Nathan Burns will make his maiden appearance for Newcastle Jets on Saturday in a friendly against Wellington.
The 25-year-old, who has joined the Jets on loan from South Korean club Incheon United, arrived in Newcastle on Monday and immediately threw himself into training.
Jets head coach Gary van Egmond was pleased with what he saw and the 48-year-old wants to test Burns against the Phoenix, although he has resisted the temptation to play the versatile forward against the Canberra NPL All Stars on Wednesday.
“Obviously he’ll (Burns) take a little bit of time to adjust,” van Egmond said on Tuesday.
“His actual fitness is good but his match fitness needs to improve, so we need to get some games into him.asreported byIndo Eleven.
“He won’t go to Canberra, but hopefully we’ll see him against Wellington.
“He’ll get 45 minutes hopefully come Saturday and we’ll build him up from there.”
While the K-League started in March, Burns has not played for Incheon this season as he has struggled to impress head coach Bong-Gil Kim, while he also suffered a knee injury.
But van Egmond is positive about what Burns will bring to the Jets as the seven-time Australia international can play as a winger, central attacking midfielder or a striker.
Burns could go a long way to replacing Ryan Griffiths, who left Newcastle for Beijing Baxy midway through last season, having scored nine goals and created seven more in his 21 games for the Jets in the 2012/13 A-League campaign.
Source : www.indo11.com
 

Cocu satisfied with PSV progress

Agen Bola indo11.com reported, PSV coach Phillip Cocu is confident in his new-look team as they prepare to take on AC Milan in the UEFA play-off.
The Dutch giants have had several high-profile players move on in the off-season, including Dries Mertens, Kevin Strootman and Marcelo.
But Cocu was confident that the replacements, such as €8million AZ Alkmaar midfielder Adam Maher, would adequately fill the void.
“At PSV we’re used to the fact that players leave our club and more players left than usual this year,” Cocu said.asreported byIndo Eleven.
“You need to cope with that as soon as possible and it’s difficult to form a team again.
“But I’m really satisfied about the progression and the players (signed) at those positions will prove to be good replacements.”
Ahead of the first leg against Milan in the Philips Stadion on Tuesday, Cocu was wary of the threat the seven-time European champions pose, insisting that they would focus on the whole team and not individual players.
Source : www.indo11.com
 

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