Bench Memos

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Re: McCain’s (Self-)Righteous Reflex


It’s remarkable what life a patently meritless idea can have.  On the question of signing statements, Barack Obama has it right:  “No one [well, no one other than the members of the ABA’s task force that produced its ridiculous report] doubts that it is appropriate to use signing statements to protect a president’s constitutional prerogatives.”  The relevant question, virtually everyone not on the ABA’s task force recognizes, is the soundness of an administration’s constitutional positions, whether they are expressed in signing statements or otherwise implemented, not the appropriateness of signing statements as a vehicle for expressing those positions.


Senator McCain’s statement that he will veto any law that he disagrees with slides past the problem that lots of laws he will generally agree with will contain one or more provisions that are unconstitutional.  As I explained when the ABA task-force report was issued, the ABA’s position that a president’s constitutional obligation is to veto any bill that has any provision he believes is unconstitutional is “wrong and unworkable”:


An unconstitutional provision of a legislative enactment is void, and it is the president’s duty not to enforce provisions that he regards as unconstitutional…. It is therefore entirely proper for a president to sign a bill that has some provisions that are constitutional and others that aren’t, for the latter (and any other provisions inseverable from them) should be regarded as though they didn’t exist.

Indeed, the operations of the federal government depend on a president’s acceptance of this practice. The task force posits the “rare possibility” that a president might think it necessary to sign legislation that contains an unconstitutional provision, but it also contends that use of a signing statement is unacceptable even in such a case. Yet such instances are common, not rare. Virtually every appropriations bill, for example, contains a legislative-veto provision–which typically purports to confer on a single house of Congress, or even a single committee, the power to nullify executive-branch action–notwithstanding the fact that the Supreme Court recognized that mechanism to be unconstitutional more than 20 years ago.


For more of my criticisms of the ABA’s report, see here, here, and here.  As I noted here, “In the face of the consistent, intense criticism that the ABA report has received from both liberal and conservative scholars, no legal academic (apart from the members of the task force) has publicly defended the report.”

Tags: Whelan


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