X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Junior high and middle school students have for generations learned about the separation of powers within our federal government as set out in the U.S. Constitution: Congress enacts laws, the president executes them and the courts interpret them. This tripartite system is basic and essential. Also for generations, some presidents have issued statements when signing bills into law. Most of these signing statements have been fairly innocuous, lauding the virtues of the legislation. But recently, the practice has morphed into something very different. With some frequency in the current administration, the president has used signing statements as an occasion to challenge portions of laws as unconstitutional-and to declare that he will not comply with them. In particular, he has made claims based upon a theory of the “unitary executive” and an expansive view of his commander-in-chief powers-without citing any judicial authority as a basis for the challenge. When a president takes upon himself the sole role of determining whether portions of a law are unconstitutional, he usurps the role of the courts. As Walter Dellinger, then head of the Office of Legal Counsel in the Clinton administration, wrote in a 1994 memorandum: “[The president's] decision [about whether to comply with a provision] . . . should be reached after careful weighing of the effect of compliance with the provision on the constitutional rights of affected individuals and on the executive branch’s constitutional authority. Also relevant is the likelihood that compliance or noncompliance will permit judicial resolution of the issue.” An American Bar Association task force recently issued a report and recommendations on presidential signing statements, to be presented for adoption by the ABA House of Delegates this week at its annual meeting. In the report, the task force, among other things, opposes a president’s issuance of signing statements to “decline to enforce all or part of law he has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress,” and urges Congress to pass a law enabling “the President, Congress, or other entities or individuals, to seek judicial review of such signing statements to the extent constitutionally permissible.” Meanwhile, Senator Arlen Specter, R-Pa., has introduced such enabling legislation. We have a few quibbles with some of the particulars of the ABA recommendations-as Dellinger wrote in a recent New York Times op-ed, there are occasions when a president can legitimately object to a provision he considers unconstitutional. Yet we support efforts to provide a means by which the courts can rule on the president’s claims of unconstitutionality when he acts on such claims by failing to comply with duly enacted laws. A judicial ruling on the constitutionality of the provisions at issue would uphold the system of checks and balances envisioned in the Constitution.

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.