by Matt Barr

Presidential signing statements I: Who does what to whom

Part I
Part II
Part III

An American Bar Association task force has a report out condemning the overuse of Presidential signing statements, those "interpretations" of new laws the President issues upon signing the bills, indicating how and whether he intends to enforce certain provisions. In one sense this is interesting as a matter of constitutional structure, in another sense it's troubling (the ABA having a great deal of clout) for the war on terror, and in another sense it's really overblown. Let's consider each issue, starting with more abstract constitutional matters.

As a matter of who does what to whom, signing statements have inspired debate and scholarship for some time. The ABA report identifies James Monroe as possibly the first President to issue a "signing statement," though of course the practice hadn't developed its current form. As with many statements, Monroe's objection was to a provision in a law passed by Congress that purported to exercise authority that is only vested in the President. Congress had prescribed a method by which the President would select military officers; Monroe said that even though he signed the law he retained the authority to decide such things.

Ulysses S. Grant signed a bill closing certain consular and diplomatic offices. Grant said it was his prerogative to do so, and said he would interpret the bill as "fix[ing] a time at which the compensation of certain diplomatic and consular officers shall cease" -- something Congress (constitutionally) could have done to the same effect.

Richard Nixon signed a military apporpriations bill to which had been attached a date for U.S. withdrawal from Indochina. He said he would ignore it.

There are two competing concerns at work here. Article I, section 7 of the Constitution requires the President to approve a bill or return it for reconsideration. Our constitutional jurisprudence has determined that this is an all or nothing thing: recall the issue of the "line item veto," struck down as unconstitutional because it gave the President too much lawmaking authority.

On the other hand are slightly more vague but still compelling issues. The President swears an oath to preserve, protect and defend the Constitution. If a provision of a bill would be unconstitutional read one way but constitutional read another, I suppose the President could simply veto the whole bill -- as an aside, I would favor that -- but it becomes more problematic to argue that he should simply grin, bear it and enforce what he thinks is an unconstitutional provision. Would he not be violating his oath if he did so?

It's fashionable, especially (or at least) when someone you don't like is President, to insist that only the courts can tell us what's constitutional and what's not. That's problematic for a couple reasons. One is that, again, if the President starts enforcing a part of a law he believes is unconstitutional, he's violating his oath. Another is that someone's going to get it good and hard in the meantime. Remember President Bush's famous signing of the execrable campaign finance law on the ground that if it's unconstitutional, the courts would tell us so? The Court ended up blessing the law, but if it hadn't, we would have had the FEC running around stifling free speech unconstitutionally until the Court got around to stopping it. (That's what's happening now! you say. Right.) Another is that the Court's decisions aren't final because it's right, it's right because they're final. That is, the Court makes mistakes, too.

More abstractly, you may argue against the proposition that a Constitution which established coequal branches of government vested all three with the responsibility and authority to determine the constitutioanilty of things. But it's harder to argue that it gave Congress more such authority than it did the President. That's essentially what you're saying if you argue, as the ABA report does, that the President should not interpret a provision of a law "in a manner inconsistent with the clear intent of Congress," even if the President believes doing so would be unconstitutional.

(To be thorough and fair, the ABA report urges the President to "communicate [his] concerns to Congress prior to passage" and "use his veto power if he believes that all or part of a bill is unconstitutional." But taken to the next step, you're saying that if two thirds of Congress says so, a bill is constitutional no matter what the President thinks -- therefore, Congress has greater authority than the President to determine constitutionality.)

In sum, these are terribly interesting issues that don't get us very far. The President could simply veto a bill if he found one or more of its parts troubling, and the libertarians among us would like that, since less would get done. Whether that's all he can do is a different matter. We'll talk about to what extent it's preferable that he simply enforce the law the way he thinks it should be enforced or not in the context of the war on terror in the next post. Part II

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