X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The American Bar Association is being asked to lend its prestige and authoritative voice to an effort to curtail presidential power. Last week the ABA Task Force Report on Presidential Signing Statements proposed a set of resolutions on the subject, which the ABA House of Delegates will vote on at its annual meeting in early August. The resolutions and the accompanying report are responsibly and thoughtfully written, by responsible and thoughtful people. For the most part, the resolutions should be just as thoughtfully rejected. The ABA task force legitimately reaffirms that the president has no general dispensing authority (that is, laws the president signs are to be enforced, not suspended) unless . . . the new law itself violates the Constitution. Even the task force had to concede this qualification, and by doing so, the report and its resolutions lose much of their punch, because it is within the qualification that all the difficult issues are hidden. The general media reported the task-force missive as taking a punch at President George W. Bush for the statements he has issued when signing bills into law. In truth, the ABA task force claims not to be singling out the current occupant of the White House. Nor could it credibly do so. As the ABA task force notes, for example, it was the standing policy of the Clinton administration that, according to Walter Dellinger, head of the Office of Legal Counsel under President Bill Clinton, “if the President, exercising his independent judgment, determines both that a provision would violate the Constitution and that it is probable that the Court would agree with him, the President has the authority to decline to execute the statute.” This view, Dellinger observed at the time, was shared by at least four then-sitting justices (Antonin Scalia, Sandra Day O’Connor, Anthony Kennedy, and David Souter). Nevertheless, what the task force recommends would appear to overrule not just Dellinger’s position but a good deal of constitutional history, doctrine, and practice. Historically, presidential signing statements can be traced back to at least 1830, when President Andrew Jackson used the device to give his interpretation of a road appropriation. But more important, the Constitution is not hortatory fluff. It is law, and in the hierarchy of laws it is supreme. If the ABA task force means to elevate transient statute over constitutional requirement, it has subverted the rule of law in the name of preserving it. POLITICS IN COURT Even though the ABA task force vastly understates the responsibility of the president to assess the constitutionality of enactments presented for his approval, the task force does suggest some practical steps that may avoid an unnecessary constitutional clash. Most constructively, the task force recommends giving greater attention to, and fuller vetting of, constitutional differences in the legislative process. That is all for the good. There is no point in being cagey or coy in claims of authority, and if greater public light were shone upon such in legislative debate, Congress might be less likely to invade the executive, and the executive less likely to claim trespass where none has been committed. Other recommendations have less merit. The recommendation to create congressional standing to challenge signing statements is yet another attempt to have political issues tried in the courts. This is more the mind-set of trial lawyers than constitutional statesmen. The courts are not well suited to resolving political disputes, and it is highly doubtful whether the task force’s recommendation — that Congress should pass a statute allowing members to obtain judicial review of signing statements — would itself pass constitutional muster in terms of the requirements of a “case or controversy.” Signing statements generally do not present a justiciable controversy. Whether it is the president or Congress that has overreached in a given circumstance, the Framers supplied ample means by which the legislative and the executive branches can defend themselves without adding to the litigation burdens of the federal judiciary. The use of signing statements should not be portrayed as an indication of a constitutional crisis or as a “threat to the Constitution and to the rule of law,” as ABA President Michael Greco asserted. Signing statements are merely a contemporary reminder of the correctness of James Madison’s insight into human nature that the concentration of power is best avoided by ambition checking ambition. Whether Bush or Congress — or, for that matter, the previous presidents or Congresses — had the more defensible side of individual matters requires careful legal analysis of specific factual contexts. For this reason it will be unfortunate if the ABA task force report is used by legislative or anti-Bush partisans to propagate the false view that presidential signing statements represent an executive power grab or constitutional novelty. VETO WITH CARE Presidential signing statements ought not be demonized. Most of these statements are largely administrative, improving presidential supervision of the executive branch itself. Better to have a highly visible president interpret an ambiguous statutory phrase than a near-invisible bureaucrat. This same interest in accountability carries over to those occasions where the president is at odds with Congress. Total opposition necessitates a veto, of course, but a president should otherwise exercise his veto with care. Outright disapproval is in tension with the well-accepted precept of construing statutes to avoid constitutional defect. A too-ready veto also sacrifices considerable legislative effort and frequently ends, rather than furthers, debate. It can be more deferential to legislative power to allow a new law generally to go into effect while openly highlighting provisions that are believed to be constitutionally problematic. Of course, there is no harm in the ABA task force’s recommendation that the president send his signing statements over to Congress, though, in truth, they are already quite easy to find on the White House Web site. No president is above the law. Of course, no Congress is either — a point the Founders made when they rejected legislative supremacy in favor of a written Constitution that all branches must follow. The presidential signing of laws cannot be the occasion for rewriting them, but it is inescapably and wisely an occasion for re-canvassing constitutional meaning — especially in the area of foreign affairs where such meaning is often decidedly and deliberately opaque. If Bush’s statements can be faulted, it is that on occasion some of his stated reservations are too cryptic to be understood. They are too much preview and not enough movie. Merely reciting that a statute is subject to the Constitution or to powers reserved to the president speaks at too high a level of generality to be effective; it is more likely simply to be provocative. Nevertheless, signing statements are important because they do keep faith with Madison’s prescription for counteracting untoward ambition in the legislative branch. Consider something the ABA task force apparently missed — namely, Congress’ continued practice of lumping together numerous unrelated provisions in omnibus bills, often inserting the most controversial provisions in emergency appropriations measures passed at, or after, fiscal deadlines. There are too many examples of this practice, but let’s reference just one: the circumstances surrounding President Franklin Roosevelt’s approval of the Lend-Lease Act, which provided vital support to our allies in World War II. As presented to Roosevelt, the act contained a provision for the termination of the president’s authority upon the passage of a “concurrent resolution of the two Houses.” Roosevelt correctly thought this an unconstitutional infringement of the presidential office because it provided for repeal without following the required procedure set out in the Constitution, which includes presentment to the president. Roosevelt, in a rare twist, issued a legal opinion to his attorney general, stating that he “felt constrained to sign the measure [to meet a momentous emergency of great magnitude in world affairs], in spite of the fact that it contained a provision which, in [his] opinion, is clearly unconstitutional.” Roosevelt directed the attorney general to put his legal opinion in the “official files of the Department of Justice” to preclude his approval of the act from being used “as a precedent for any future legislation comprising provisions of a similar nature.” Roosevelt was right about the unconstitutionality of this type of provision, as was confirmed later by the Supreme Court in INS v. Chadha in 1983, and he also correctly anticipated that Congress would continue its efforts to circumvent the presidential judgment and veto in similar ways. Does Congress always act in this devious manner? Of course not. It is no more fair to tar Congress in such a fashion than it is to accuse Bush of conspiring to place himself “above the law,” as some of his political adversaries charge. CONSTITUTIONAL LAW So putting overstatement aside, should the president and the attorney general enforce statutes that they believe are unconstitutional? The logical and better answer is no, but the practical mind remembers — especially in light of some extremely partisan and meritless calls for presidential censure — that President Andrew Johnson didn’t think so either, and this thinking nearly got him removed from office. Congress had passed the Tenure-of-Office Act over Johnson’s veto. The act precluded Johnson from freely removing members of his Cabinet. Notwithstanding the law’s passage, Johnson removed Secretary of War Edwin Stanton, and this became one of the articles of impeachment. In Johnson’s defense, his counsel stated: “If the law be upon its very face in flat contradiction of the plain expressed provisions of the Constitution, as if a law should forbid the President to grant a pardon in any case, or if the law should declare that he should not be Commander-in-Chief, or if the law should declare that he should take no part in making of a treaty, I say the President, without going to the Supreme Court of the United States, maintaining the integrity of his department, which for the time being is entrusted to him, is bound to execute no such legislation; and he is cowardly and untrue to the responsibility of his position if he should execute it.” Johnson’s counsel had the winning argument. After a single vote saved Johnson from conviction and removal from office, Chief Justice Salmon Chase, presiding in the Senate over Johnson’s impeachment trial, declared the president has no duty to execute a statute that “directly attacks and impairs the executive power confided to him by [the Constitution].” Are the signing-statement objections being raised by Bush uniformly of this quality? The sheer number of Bush statements does suggest some unwarranted exuberance for one’s own position. As the late William French Smith opined, it is best to confine the presidential prerogative to those “historical examples” where “Congress attempts to alter the distribution of constitutional power by arrogating to itself a power which the Executive believes the Constitution does not confer on Congress but, instead, reposes in him.” Such encroachments on the executive are especially apt for signing-statement qualification. In the end, for all its sound and fury, the ABA task force cannot escape some rather basic postulates. John Marshall was correct that “an act of the legislature, repugnant to the Constitution, is void.” And the president has the express constitutional responsibility to “take care that the Laws [including the Constitution as the supreme law] be faithfully executed.” Requiring presidents to enforce — as the ABA task force proposes — an invalid law would be contrary to constitutional duty and oath. This is a proposition as old as the republic. James Wilson, a principal drafter and advocate of the Constitution, wrote that “the President of the United States could shield himself and refuse to carry into effect an act that violates the Constitution.” But then, Wilson wasn’t on the ABA task force.
Douglas W. Kmiec is chair and professor of constitutional law at Pepperdine University. He is the former head of the Office of Legal Counsel under Presidents Ronald Reagan and George H.W. Bush.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.