Balkinization: Boilerplate

Boilerplate

Marty Lederman

Well, Attorney General Mukasey testified that he would try to be less adversarial toward Congress -- less inclined to articulate constitutional objections where to do so would only inflame relations.

Yesterday's signing statement therefore may well be the state of things to come. My colleagues and I have complained that, in earlier signing statements, the President was insufficiently transparent about the nature of his constitutional objections, and unclear about whether and when he would disregard statutory commands on constitutional grounds. The new formulation, however, might well make one yearn for those good ol' days of relative candor in signing statement constitutional objections. Here's how it reads:

[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.

With this, David Addington can say he has preserved all possible constitutional objections -- no waiver! -- and there is no list of objectionable provisions for the likes of Charlie Savage, Phillip Cooper, Neil Kinkopf and Christopher Kelley to enumerate.

Best of both worlds, from the Bush White House point of view.

I suppose, then, it's worth repeating what we wrote back in July 2006:

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.

P.S. to the law nerds out there (i.e., present and future OLC lawyers): You'll be glad to note that this may presage the end of that time-consuming, often tedious part of the job, the bill comment practice. For every bill that's introduced, or that is on its way to the President's desk, OLC/OLA can now simply write this boilerplate to Congress:

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.

Posted 6:51 AM by Marty Lederman [link]

Comments:

another boiler plate might read:

(As the contemporary manifestation of the banality of evil. See Hannah Arendt 1963.)

We construe this law as we see fit, most likely in a way that is consistent with our political objectives, regardless of civil liberties or our obligation to defend the constitution. The rest of you - congress, lay people, pretty much every law professor except for a handful of (John) Yooities- can kvetch all you want but, notwithstanding the purported full faith and credit clause, there is NOTHING you can do but issue self-gratifying and cathartic blog posts because the American People don't give a s*** about their diminishing freedoms.

But hey American Idol, Deal or No Deal, Britney's sister is knocked up . . . now that sounds interesting, not this nerdy law stuff . . .

You're FREE (to do as we tell you)

# posted by

Unknown : 11:34 AM

forgive me I referenced the wrong faith clause from the Constitution in my last post.

in my previous post, the sentence that reads:

notwithstanding the purported full faith and credit clause

should actually read:

notwithstanding the purported clause in Article 2 of the Constitution that the president shall take care that the laws be faithfully executed

# posted by

Unknown : 11:42 AM

Marty:

Do you know if any court has ever used a presidential signing statement to actually decide a case?

# posted by

Bart DePalma : 2:11 PM

Or if any court has ever cited the absence of a presidential signing statement as a waiver of the President's right to challenge the constitutionality of a statute which he signed into law?

# posted by

Bart DePalma : 4:26 PM

This doesn't have anything to do with courts, Bart. The question is whether and when the President disregards statutes. Please read the linked post on the Georgetown site.

# posted by

Marty Lederman : 4:47 PM

marty:

A signing statement claiming the power to ignore a statutory provision and actually acting contrary to the provision are two entirely different matters. The fact that a President claims in a signing statement that a statutory provision does not limit one of his Article II powers does not mean that the President is in fact acting contrary to the statutory provision. Consequently, no matter how much detail the President puts into a signing statement, it is not evidence that the President is ignoring the attached law.

My interest was instead in why the President's lawyers feel the need to issue ubiquitous signing statements. You suggested, correctly I think, that the Executive appears to be concerned with avoiding even the appearance of waiving the President's power to challenge an unconstitutional statutory provision after he signed it into law. However, I am unaware that any court has granted a presidential signing statement any precedential value in deciding whether a statute is constitutional. I posed my questions to you and the other posters to determine if you were aware of any cases which had.

In any case, I find this waiver argument curious in view of the fact that the Courts have held that the President may make his or her own determination of a statutory provision's constitutionality and may ignore unconstitutional statutes. Consequently, there is no need for the President to go to the courts to challenge statutes only to face a waiver defense.

I suppose Congress could bring a suit to enforce a statue the President is ignoring and theoretically make a waiver argument, but I do not recall such a case being brought in the past.

In sum, I just cannot get worked up over presidential signing statements. With all due respect to Mr. Addington, they appear to be more fodder for bloggers and the likes of Charlie Savage, Phillip Cooper, Neil Kinkopf and Christopher Kelley to scribble about than actions of actual legal import.

# posted by

Bart DePalma : 6:20 PM

Can the president confer to him/herself any new powers via signing statements?

Are they legally binding? If not, why issue them at all?

# posted by

John : 12:15 PM

You suggested, correctly I think, that the Executive appears to be concerned with avoiding even the appearance of waiving the President's power to challenge an unconstitutional statutory provision after he signed it into law.

I read it as just a hearty "GFY! Watcha gonna doooo about it ... we're the law round here...."

If he wants to challenge the constitutionality, you'd think he'd take it to court.

Cheers,

# posted by

Arne Langsetmo : 4:30 PM

"Bart" DePalma:

In any case, I find this waiver argument curious in view of the fact that the Courts have held that the President may make his or her own determination of a statutory provision's constitutionality and may ignore unconstitutional statutes....

This is true of any ol' Joe Blow on the streets as well. Whoopdedoo....

... Consequently, there is no need for the President to go to the courts to challenge statutes only to face a waiver defense.

What's with this "straw man" 'waiver defense'? Unless you can show that there's some kind of laches in operation WRT the Constitution (if we don't exercise our free speech rights, we've lost them?!?!?), why don't you be a dear and stop flogging this dead horse? Thanks is advance.

Cheers,

# posted by

Arne Langsetmo : 4:39 PM

arne:

Marty is assuming, and I tend to agree, that these signing statements are meant to argue that the President is not waiving the power to challenge the constitutionality of a statute by signing the bill.

Waiver is a legal defense and speculating how such a legal defense might be employed is perfectly germane to Marty's post and not a red herring at all.

A President may not seek an advisory opinion from the court on a constitutional question. Even if an Article III court agreed to render such an opinion, there is no opposing party to exercise a waiver defense.

In fact, the courts have held that a President may make his own determination that at statute is unconstitutional and decline to enforce it. Thus, because the President does not have to go to court, I am unsure how a waiver defense can be employed.

I speculated that Congress could sue the President seeking to enforce a statute which the President has determined is unconstitutional as is not enforcing. I cannot see how a waiver defense can be employed offensively under such a suit.

In short, even if a President can theoretically waive the power to challenge a statute's constitutionality, I am having a hard time seeing that signing statements have any legal import because there is no opportunity to exercise such a waiver defense of a statute. It appears that Addington, et al., are being too clever by half.

# posted by

Bart DePalma : 6:38 PM

"Bart" DePalma:

Marty is assuming, and I tend to agree, that these signing statements are meant to argue that the President is not waiving the power to challenge the constitutionality of a statute by signing the bill.

No. The only mention of waiver made by Prof. Lederman was that Addington could make that 'argument' ... based on the hopelessly vague and obtuse signing paragraph singled out for scorn by Prof. Lederman.

It is you that persist with this "waiver" argument. And it's bogus.

Waiver is a legal defense and speculating how such a legal defense might be employed is perfectly germane to Marty's post and not a red herring at all.

Well, if Dubya actually took one of these issues to court and "waived" some supposed point, and if someone else relied on that behaviour, you might argue estoppel ... but I doubt it would be accepted by any proper judge; this is constitutional law here, not some civil claim in law or equity.

A President may not seek an advisory opinion from the court on a constitutional question....

Oh, BS. Dilan has already taken care of this one. No one is looking for an "advisory opinion" on some hypothetical question.

... Even if an Article III court agreed to render such an opinion, there is no opposing party to exercise a waiver defense.

Huh?!?!? WTF are you talking about? Are you just making sh*te up as you go?!?!?

In fact, the courts have held that a President may make his own determination that at statute is unconstitutional and decline to enforce it....

Addressed above, but you studiously ignored it. To repeat for the brain-dead, anyone can make their own "determination" and act accordingly. In fact, it is you with your OCD about "advisory opinions" that would have to maintain, against all evidence and a number of court cases, that in fact a person wishing to challenge the constitutionality of a law must take the risk and violate that law in order to create the "case or controversy"; intention to do so in the future is too ... ummm, "hypothetical".

... Thus, because the President does not have to go to court, I am unsure how a waiver defense can be employed.

To be honest, "Bart", I don't see much point in discussing the hypotheticals of the mechanics of claiming of a "waiver defense" that exists in your hallucinogenic imagination only. You know, for me to comment on this might be a kind of "advisory opinion".

I speculated that Congress could sue the President seeking to enforce a statute which the President has determined is unconstitutional as is not enforcing. I cannot see how a waiver defense can be employed offensively under such a suit.

I'd say just ITMFN. But no one's given him a BJ yet.

In short, even if a President can theoretically waive the power to challenge a statute's constitutionality, I am having a hard time seeing that signing statements have any legal import because there is no opportunity to exercise such a waiver defense of a statute. It appears that Addington, et al., are being too clever by half.

Addington's never been "clever". But I agree, signing statements are, outside of the purpose I've posited above, pretty much useless from a legal perspective (which is something that Prof. Lederman alluded to in his comment to you above as well). If they indicate a concrete and discernible intention to do something specific, they might be the equivalent of a "notice of intent to sue", and be considered good manners at the very least. But as to Dubya's version of such, I maintain the position of my first comment above.

Cheers,

# posted by

Arne Langsetmo : 7:32 PM