Boilerplate

Marty Lederman

[T]his legislation contains certain provisions similar to those found in prior appropriations bills passed by the Congress that might be construed to be inconsistent with my Constitutional responsibilities. To avoid such potential infirmities, the executive branch will interpret and construe such provisions in the same manner as I have previously stated in regard to similar provisions.

The [practice of issuing] signing statement[s with constitutional objections] is a good thing: a manifestation of the Executive’s intentions that helps us to understand the heart of the problem. If the President has decided to decline to enforce a statute because it’s unconstitutional, then it is much better that he tell the Congress and the public of his intentions, rather than keep it secret, because in that case the checks and balances of the constitutional system can be set to work.

[T]he whole point of such signing statements—the reason that making them is actually a valuable practice—is that they make transparent the President’s intent to decline to enforce statutes in the manner contemplated by Congress. But President Bush’s statements for the most part do not serve this function. Many of the objections are written in such general and opaque terms, and with resort to vague assertions about an intent to “construe” the provisions in conformity with the Commander-in-Chief Clause, the “unitary executive,” etc., that it is impossible to know just what they mean in terms of how the Administration is implementing the statutes in question. According to Prof. Cooper, in President Bush's first term alone he offered 505 constitutional objections to various statutory provisions, and many of those objections applied to multiple provisions within a particular bill. This might mean that the Executive is refusing to implement hundreds of statutes enacted since 2001 (and many enacted prior to that date, too), or construing them in an implausible and unexpected way—or, then again, it might not. Congress and the public are offered no clear understanding of the legal theory of unconstitutionality, or of precisely which statutory provisions will not be enforced, under what circumstances, and why. The statements are, instead, mere placeholders, with respect to a vast number of statutory provisions, signaling that the Administration reserves the right not to enforce numerous unspecified provisions.

Moreover, the President is not telling Congress when he does refuse to enforce (or when he construes the statute in a manner that the legislature could not possibly have contemplated). A President may seek to enforce his own conception of the Constitution, even if it is a sharp break with the past. But when he does so, he is constitutionally obliged to do so in broad daylight, with adequate opportunity for the other branches and the public to understand the legal theory and the practice and to respond accordingly. Checks and balances can't possibly work if the revolution is occurring in secret, or if the Administration publicly insists that all is business as usual, that all statutes and treaties are being implemented as they always have been, while simultaneously "implementing" such statutes in a manner that comes as a great surprise to Congress and the public.

FYI: This bill contains certain provisions that might be construed to be inconsistent with the President's constitutional responsibilities or otherwise unconstitutional, at least in the view of some lawyers who have occupied the West Wing and DOJ. To avoid such potential infirmities, the executive branch will construe and fail to implement such provisions -- whatever they may be -- in the same manner that it has secretly interpreted and failed to implement previous such laws.