So what’s wrong with the ABA report on presidential signing statements? Here are the two biggest flaws:
1. The ABA task force’s central conclusion is that the President’s only choice, when presented a bill that has a provision that he believes is unconstitutional, is to veto the bill. Here’s the task force’s reasoning (on pages 18-19): (A) The Presentment Clause (Article I, section 7, clause 2) provides that every bill which shall have passed both houses of Congress shall be presented to the President for signature or veto. (B) Under the Take Care Clause (Article II, section 3), the President “shall take Care that the Laws be faithfully executed.” (C) Therefore, the President is obligated to faithfully execute all bills that become law; he may not sign a bill into law and refuse to enforce one of its provisions.
The problem with this reasoning is that proposition C does not follow from A and B. The easiest way to recognize this is to understand that the Constitution is one of the “Laws” that the President “shall take Care … be faithfully executed.” Thus, when a bill has become law, the President has an obligation under the Take Care Clause not to enforce provisions of that bill that are unconstitutional. That is true whether he has signed the law, whether it has been enacted in an override of his veto, or whether it was enacted before he became President. In those cases in which he has signed the law, a signing statement is one proper means of fulfilling his Take Care obligation.
2. Behind the guise of separation-of-powers rhetoric, the ABA task force embraces the principle of judicial supremacy—indeed, perhaps the most extreme version that I have ever seen. Here’s the most telling passage (from pages 23-24):
“Definitive constitutional interpretations are entrusted to an independent and impartial Supreme Court, not a partisan and interested President. That is the meaning of Marbury v. Madison.… The President’s constitutional duty is to enforce laws he has signed into being unless and until they are held unconstitutional by the Supreme Court or a subordinate tribunal. The Constitution is not what the President says it is.”
It is of course true that the Constitution is not whatever the President says it is. But it is also not whatever the Supreme Court says it is. Properly understood, Marbury stands only for the limited proposition that the courts, in exercising their judicial function, may review the constitutionality of statutes that they are asked to apply. It in no way establishes that that the Supreme Court is the ultimate expositor of the Constitution, much less that constitutional interpretation is the exclusive preserve of the courts. On the contrary, the President’s constitutional oath of office, by which he swears to “preserve, protect and defend the Constitution,” necessarily requires that he form a judgment as to what the provisions of the Constitution mean.
Let’s make this concrete. 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”?
There are plenty of other flaws in this ABA report. Believe it or not, its signatories include Yale Law School dean Harold Koh, Harvard law professor Charles Ogletree, Stanford law professor (and former dean) Kathleen Sullivan, and former D.C. Circuit judge Patricia Wald. They and the other signatories ought to be ashamed of themselves.