There are some real black marks on President Bush’s record on abiding by his oath to preserve, protect, and defend the Constitution. He signed a campaign-finance-regulation bill that he knew, at its core, exceeded the constitutional powers of the federal government. His approach to the constitutionality of governmental racial preferences has steadfastly avoided the temptations of principle. President Reagan regularly grounded the case for limited government in the Founders’ design; the notion seems alien to this president, who has therefore not even paid it lip service.
But the loudest complaints about Bush’s constitutional record are not ours. At the moment, those complaints center on the president’s allegedly unprecedented use of “signing statements” that announce his interpretation of laws as he signs them. Bush has supposedly altered the constitutional balance of power, illegitimately claimed a right to have the last word on matters of constitutional interpretation, and threatened the rule of law. The correct answer to this complaint is not that the ability to issue signing statements is a defensible and necessary presidential power. It is that it is hardly a power at all. The idea that Bush’s use of them has created a constitutional crisis is impossible to take seriously.
This week, a task force of the American Bar Association issued a report that takes it very seriously indeed: which is not surprising, considering that the task force was stacked with signing-statement hysterics. (The few Republican members of the task force were on record against signing statements at the time it was established.) Arlen Specter, the chairman of the Senate Judiciary Committee, has introduced legislation to implement the task force’s recommendations. The bill orders the courts not to rely on signing statements in interpreting laws. It authorizes the courts to render verdicts on the legality of signing statements.
We have often disagreed with Senator Specter, but we have rarely found him loopy. That is what he is here.
Consider, first, the alternatives to presidential signing statements. Can presidents really be expected to veto every piece of legislation that contains unconstitutional elements? The ABA thinks so. But presidents throughout American history have thought otherwise. As Ed Whelan has pointed out on NRO, nearly “every appropriations bill contains a provision that violates Chadha [the Supreme Court’s decision on legislative vetoes]. The task force’s position would lead, at best, to an insane game of chicken between the President and Congress.” Should presidents, then, be expected to implement provisions they believe unconstitutional? No president has heretofore taken that position, which would make them obedient to a statute at the cost of being disobedient to the Constitution under which the statute was enacted.
Statutes frequently contain ambiguous language. Executive agencies have to implement those statutes. What should they do? Come up with their own interpretations, with presidential guidance eschewed? That would be a recipe for anarchy in the executive. Should they wait until legal provisions are adjudicated? Surely not: There usually won’t be a case to adjudicate until an attempt at implementation is made. If the president offers guidance to his subordinates on how to construe a statute, should he not try to offer the interpretation that is most consistent with the Constitution?
A willful president could issue a signing statement that badly misinterprets a statute, or the Constitution, or both, or doesn’t even try to come up with a plausible interpretation. In those cases, the president will deserve criticism. In most such cases, he will also deserve a rebuke from the courts when the issues are litigated. (Often he will get one: Signing statements give the president no magic power to compel judges to agree with them.) But presidents will have to interpret statutes, interpret the Constitution, and try to harmonize those interpretations, whether they announce their views in a signing statement or not. (Would opacity be preferable?) That observation is hardly a frontal challenge to judicial supremacy, which deserves one; it is an acknowledgment that any workable constitutional system would have to make.
Serious commentators know that constitutional signing statements have a history almost as long as the republic. It is true that everyone knows that President Bush has issued more signing statements than all previous presidents combined. As it happens, however, everyone is wrong. As of June, the president had issued 132 signing statements, of which 110 broached a constitutional issue. Bush’s father issued more during his four years in office. The critics use a trick to generate a fake statistic. When one of Bush’s signing statements raises constitutional questions about two provisions in a law, they count it twice. They count his predecessors’ signing statements once each.
Many of Bush’s signing statements, like those of his predecessors, have sought to vindicate aspects of the Constitution in which the president has a distinctive interest. The Constitution stipulates that presidents shall “from time to time” recommend legislation they judge “necessary and expedient.” When a bill purports to order the president to recommend legislation, Bush says he does not recognize the constitutionality of the order. He has raised that objection in about half of his signing statements regarding constitutional issues.
Now consider the solution that the ABA and Specter offer for this non-problem. Ordering courts (including state courts) to ignore signing statements is at least as much a violation of the separation of powers as signing statements themselves could ever be. And to ask the courts to judge the legality of signing statements in the absence of a case requiring them to do so is to ask them to issue advisory opinions — which, as every high-school student used to know, is foreign to our Constitution. The ABA even recognizes this point. It allows that the Supreme Court might hold its pet legislation unconstitutional. So we have now moved full circle. The imaginary problem is that the president doesn’t veto every bill that contains a provision he considers unconstitutional, and the solution is for the president to sign a bill that is probably unconstitutional.
President Lincoln speculated that there might be occasions when it was necessary to violate the Constitution in order to save it. He had in mind a crisis rather larger than any the ABA has identified.