Walter Dellinger et al: Untangling the Debate on Signing Statements

Roundup: Historians' Take

This post has been co-written by the following, all of whom have served in the Office of Legal Counsel:

David Barron (Harvard Law School)

Walter Dellinger (Duke Law School)

Dawn Johnsen (Indiana School of Law, Bloomington)

Neil Kinkopf (Georgia State Law School)

Marty Lederman (Georgetown Universty Law Center)

Chris Schroeder (Duke Law School)

Richard Shiffrin (University of the Pacific McGeorge School of Law)

Michael Small (Akin, Gump, Strauus, Hauer & Feld, LLP)

President Bush has made extensive use of signing statements to announce his constitutional doubts about numerous statutory enactments and to signal his intent either to refuse to enforce such laws or to construe and implement them in a manner consistent with his constitutional views. This practice first gained notoriety with the President’s signing statement regarding the McCain Amendment back in December, and has received much more attention thanks largely to the valuable archival work of Phillip Cooper, Christopher Kelley and Charlie Savage.

The American Bar Association recently joined the debate with the release of a Report by a bipartisan task force on presidential signing statements and the separation of powers. As one of us has noted previously, a number of aspects of the Report are very timely and worthwhile. In particular, we agree with the Report’s emphasis on the need for transparency whenever the executive branch declines to execute a statute or construes that statute in a manner that appears to be contrary to its text and congressional intent. But we were surprised by, and disagree with, certain of the Report's central conclusions, namely:

(1) that "the ‘take care’ obligation of the President requires him to faithfully execute all laws” (page 19), including, apparently, those that are unconstitutional; and

(2) that if a President believes any provision of a bill is unconstitutional, he is obliged either (a) to veto the entire bill, or (b) to sign the bill and enforce the unconstitutional provisions.

As we explain below, the first conclusion is untenable. There is a long history of Presidents concluding that, in certain limited circumstances, it is more consistent with their constitutional obligations to refuse to enforce an unconstitutional law than to enforce it. As just the most obvious example, some laws might be plainly unconstitutional under governing and uncontroverted Supreme Court precedent. We do not believe there is a serious case to be made for a constitutional obligation to enforce all such provisions.

But the main target of the ABA Report appears to be not so much these easy cases, but instead cases such as the recent McCain Amendment categorically prohibiting the cruel treatment of prisoners in U.S. custody. President Bush signed the omnibus appropriations bill of which this provision was one small part and at the same time issued a signing statement obliquely suggesting that he may reserve the power to make exceptions pursuant to his authority as Commander-in-Chief. There are serious problems with the views expressed in such Bush signing statements, but the Report misses the mark in identifying them. Like most misdiagnoses, the Report may have the doubly negative effect of concentrating attention on a phony problem—the issuance of signing statements that long have been used to signal the President’s belief that some aspect of a piece of legislation is unconstitutional—while at the same time deflecting attention from a very real problem, namely, the unjustifiable arrogation of power that President Bush has asserted and continues to assert in office.

Below we identify three common objections to the use of signing statements (not all of them directly attributable to the ABA Report) and explain why they are misplaced. Then we discuss four real problems reflected in the content of presidential signing statements and accompanying administrative practices in this Administration.

First, however, a few words to try to unpack precisely what the ABA Report finds objectionable:

Although the Report concludes (p.1) that it is "contrary to the rule of law and our constitutional system of separation of powers" to issue signing statements claiming an authority, or stating an intention, to disregard or decline to enforce part of a law that the President has signed, the full Report seems ambiguous in its statement of the problem. Most of the Report reads as though the Task Force is not so much opposed to signing statements, as such, but that it is instead aiming its sights at the non-enforcement of laws based on constitutional objections. If so, then the signing statements would merely be a signal of the intent to refuse to enforce, and not themselves the problem.

On the other hand, at page 27, the Report oddly suggests that the only problem it is addressing is related to signing statements themselves (and the failure to veto bills with constitutionally dubious provisions), and not to nonenforcement based on constitutional objections more broadly. The Report states that the Task Force is not addressing “how the President should respond if Congress overrides a veto motivated by his constitutional concerns,” or even “what should be done if the President, in the absence of a signing statement, nevertheless fails to enforce a law,” which would presumably include failing to enforce a provision signed by a prior President.

In other words, the Task Force appears, ironically enough, to be agnostic on the central constitutional problem in this Administration: the President’s assertion of a power to ignore statutes that have been on the books for years, that were widely acknowledged to be constitutional when they were enacted (including by the President when he signed the law), that for many years thereafter have been implemented by the executive branch, and that have never been called into question by the Supreme Court. Regarding situations where the Bush Administration (secretly) asserts the right to ignore existing basic framework statutes, the ABA Task Force is strangely silent. Counterintuitively, it aims its sights only at those occasions when the President actually signals his intent to refuse to enforce new statutes.

By thus calling into question the inclusion of some words in a document, rather than the substance and intentions of the views about executive power that President Bush’s words express, the Task Force’s focus is backward. As explained below, to the extent a President is refusing to enforce a statute, it is much better that he announce his attention to do so publicly, rather than doing so secretly.)

The Report thus may draw attention away from the truly serious problems that the Bush signing statements do reflect. The Report discusses some of those problems (e.g., the absence of transparency), but it studiously avoids addressing the most significant problem with the Bush signing statements, as well as with other failures to enforce preexisting statutes—namely, that the substance of many of this President's constitutional objections is wrong and threatens to dangerously expand the powers of the President in a manner that fails to respect the checks and balances of our constitutional system.

In this regard, the Report may simply be mirroring the larger public discussion of the practice of issuing signing statements, a discussion that has tended to fixate on the phenomenon of the statements themselves. Three commonly heard objections recur in that discussion. Each of them misses the mark:...
Read entire article at Georgetown Law Faculty Blog

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