I suppose that it is only fitting that a Newsweek column that describes Senator Chris Dodd as a “plausible president” who could fill the “role of a constitutionalist candidate” would contain this profoundly confused paragraph about the Bush administration’s use of presidential signing statements:
Contrary to the Constitution’s mandate that the president “shall take care that the laws be faithfully executed,” the current president, much more than any other, has issued “signing statements”—essentially, line-item vetoes, which are unconstitutional—to tell the executive branch that some provisions of bills he signs into law need not be enforced for constitutional or policy reasons. As Savage writes, “If a president has the power to instruct the government not to enforce laws that he alone has declared to be unconstitutional, then he could free himself from the need to obey laws that restrict his own actions.”
What is surprising, and deeply alarming, is that the author of this confusion is George F. Will. Will adopts the ridiculous position taken one year ago by an ABA task force, a position that I have refuted at length (here, here, and in numerous Bench Memos posts) and that academics across the political spectrum have vigorously rejected. As Laurence Tribe put it, the ABA task force “has missed the boat.” Indeed, I remain unaware of a single academic not on the task force who agrees with the task force’s position.
Let’s look at some of the errors in Will’s paragraph:
1. Signing statements in which the president states his conclusion that provisions of a bill he is signing are not constitutional are not contrary to the president’s “take Care” duty. They are an exercise of that duty. To restate part of my previous refutation of this assertion:
[T]he Constitution is first among the “Laws” that the president “shall take Care . . . be faithfully executed.” 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. (How he ought to form that judgment is a separate question.) 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.
2. Such signing statements are not the equivalent of line-item vetoes. As I have put it:
This claim is both wrong and irrelevant. The claim is wrong because a provision of a bill that has been signed into law but that the president declines to enforce on constitutional grounds will be enforceable (to the same extent and subject to the same rules as other provisions) in an ordinary dispute in the courts – if, that is, the courts determine the provision to be constitutional – and will also be enforceable by subsequent presidents. The claim of identical substance is irrelevant because the defect in a line-item veto is purely procedural – a failure, as the Supreme Court put it, to act “in accord with a single finely wrought and exhaustively considered procedure.” By contrast, a president’s signing a bill into law fully comports with that procedure.
3. Will asserts that President Bush has used signing statements “to tell the executive branch that some provisions of bills he signs into law need not be enforced for constitutional or policy reasons.” (Emphasis in original.) This is the first time that I’ve encountered the charge that such signing statements have been based on non-constitutional “policy reasons.” I don’t believe that I’ve ever heard this charge before, and I don’t believe that it’s accurate. (As always, I welcome correction.)
4. Will endorses this proposition: “If a president has the power to instruct the government not to enforce laws that he alone has declared to be unconstitutional, then he could free himself from the need to obey laws that restrict his own actions.” I’m not quite sure I know what the proposition means. If it means simply that a president who can tell executive-branch officials not to enforce laws that he believes to be unconstitutional can also decide not to enforce those same laws himself, then of course it’s true. Why should it be otherwise? As I stated a year ago:
Let’s assume that the President has signed into law a defense appropriations bill that he believes essential for the national defense. One provision of the bill provides that ABA president Michael Greco shall immediately be detained, displayed in public stocks, and subjected to ridicule until he confesses to what a partisan hack he is. The President recognizes that, alas, this provision is unconstitutional. Can anyone seriously maintain that the President’s only constitutional option, once he has signed the bill, is to implement that provision until such time as some court rules it unconstitutional? Why, pray tell, is the President’s obligation to obey the Constitution dependent on the prior say-so of a “subordinate tribunal”?
The president’s actions would of course be subject to judicial challenge under the usual rules (as well as to political challenge). If the quoted proposition means something other than what I posit, then it would appear to be a non sequitur.
Bottom line: It’s fair game to dispute the substantive constitutional positions that a president sets forth in signing statements. It’s hopelessly confused (for reasons I’ve barely touched on here; read the essays hyperlinked above for more) to believe that there is something wrong with using the vehicle of signing statements to direct the executive branch not to enforce provisions of a bill that the president is signing into law.