Friday, January 6, 2012

In Praise of President Obama's Embrace of Signing Statements and Presidential Review

Agrees With Reagan, G.W. Bush, Abraham Lincoln and James Madison

Thinks Abraham Lincoln and James Madison Didn't Get It

Earlier this week, President Obama signed Defense Authorization legislation while at the same time issuing a so-called "signing statement."  Among other things, the statement provided that the President will read the Act so as not to authorize detentions of American citizens that the President believes to be unconstitutional.  (The Associated Press recounts the President's signature and signing statement here.)  Thus, President Obama joined Presidents Reagan, Bush I, Bush II, Wilson, Madison, Jefferson, Clinton and probably others in asserting the authority to decline to enforce legislation the President believes to be unconstitutional.

Some are criticizing the President's decision to issue a signing statement, one of nearly 20 he has issued in his Presidency.  For instance, in a letter to President Obama, the President of the American Bar Association, William Wilson (pictured above) decried the President's signing statement.  Pointing to a 2006 Resolution of its House of Delegates, the letter claimed that a President must enforce any and all legislation validly passed by Congress, even if the President believes the legislation to be unconstitutional.  The letter argued that a President who believes particular legislation is unconstitutional must veto it and, failing such a veto, or if the veto is over-ridden, enforce the legislation as written.  (Moreover, the letter implied that a President is bound by his predecessor's decision not to veto legislation.)   According to Mr. Wilson's letter, the issuance of a signing statement announcing an intent not to enforce unconstitutional legislation is akin to a "line item veto" and "contrary to the rule of law and our constitutional system of separation of powers.”  Thus, the ABA apparently believes that the President should follow a Congressional directive to detain American Citizens even if the President believes that directive to be unconstitutional.

The ABA and other critics of the President are dead wrong.  The Constitution expressly requires the President to "take care that laws are faithfully executed."  In discharging this duty, the President cannot ignore the Constitution, which, according to the Supremacy Clause, is the "Supreme Law of the Land."  Refusing to consider the Constitution when carrying out his responsibilities would contravene the President's oath " to preserve, protect and defend the Constitution of the United States." 

The ABA's "Rule of Law" argument undermines itself and would, if taken seriously, give Congress a monopoly on Constitutional interpretation. After all, judicial review of legislation by Article III courts itself nullifies legislation passed by Congress.  Yet, no one would plausibly argue that such judicial review "offends the separation of powers."  Instead, such review implements an underlying value of such separation, by ensuring that all three co-equal and independent branches agree that legislation is constitutional before such legislation is enforced against individuals.  (E.g., before an individual is detained.)  The ABA's position would undermine that value, by requiring the President to enforce legislation he believed to be unconstitutional, thereby contracting the scope of individual liberty.

Oddly, the ABA letter claims that the Founders and ratifiers rejected Presidential authority to decline to enforce unconstitutional legislation.  However, as previously explained on this blog, the nation's two most prominent founders, James Madison and James Wilson, expressly endorsed such authority.

For instance, after serving as President, James Madison wrote as follows:

"As the Legislative, Executive, and Judicial departments of the United States are co-ordinate, and each equally bound to support the Constitution, it follows that each must, in the exercise of its functions, be guided by the text of the Constitution according to its own interpretation of it; and, consequently, that in the event of irreconcilable interpretations, the prevalence of the one or the other department must depend on the nature of the case, as receiving its final decision from one or the other."

Moreover, at the Pennsylvania Ratifying Convention, James Wilson, later a Supreme Court Justice, argued that a President could decline to enforce a law he believed to be unconstitutional and that, in the same way, judges could decline to enforce unconstitutional laws that came before them.

Finally, while Abraham Lincoln was not a member of the Founding generation, he knew something about the Constitution --- perhaps even more than the ABA's House of Delegates.   As previously noted on this blog, during his first inaugural address, President Lincoln famously announced, as he had argued in the Lincoln-Douglas debates, that he did not consider himself bound by the Supreme Court's decision in Dred Scott v. Sanford, except with respect to the actual parties in the case. Thus, Lincoln ordered the Executive Branch to grant patents and passports to qualified African-Americans, even though Dred Scott had odiously held that African-Americans were not citizens and thus, by implication, not entitled to such statutory benefits, because he (Lincoln) believed that Dred Scott was simply wrong.

Thus, Madison, Wilson and Lincoln made it clear that, when acting in the sphere of authority assigned to him by the Constitution, including the enforcement of laws, the President must adhere to the Constitution and thus may not carry into execution an enactment that he believes to be unconstitutional.

Two final thoughts. 

First, the sort of "Presidential Review" contemplated by Madison, Wilson and Lincoln does not create a "line item veto" as the ABA claims, even if announced via a signing statement. The line item veto empowers Chief Executives to prevent a portion of a bill from becoming law in the first place, simply because the Chief Executive believes that portion of the bill, even if entirely constitutional, to be bad policy.  By contrast, Presidential Review grants the President a very narrow authority to decline to enforce laws otherwise validly passed because they are unconstitutional.   To be sure, the President could abuse such authority.  But then so can the Supreme Court abuse its authority when it engages in judicial review.  Yet, as then-Justice Joseph Story noted nearly two centuries ago, the fact that a power may be abused is no argument against it.

Second, the ABA's preferred approach would render the President a less-than-equal participant in constitutional discourse.  After all, even under the ABA's approach, Congress can always decline to pass legislation because it believes such legislation to be unconstitutional.  Moreover, the ABA embraces the authority of courts to decline to enforce legislation via judicial review.  Under this scheme, the President, nominally a co-equal branch of government, is the "odd man out," that is, the only branch of government that, veto aside, must ignore the Constitution when exercising his authority.  Nothing in the text, structure or history of the Constitution suggests such a lopsided result.  Moreover, as a practical matter, such an approach would in some cases leave the constitutionality of legislation to a single branch, namely, Congress, given that some legislation is often not susceptible to judicial review, spending legislation being a prime example.  (Also, the 20-year charter of the First National Bank expired before there was any judicial review of the Bank's Constitutionality. The Supreme Court only reached the question after Congress re-authorized the Bank.)  The American People benefit when all branches consider themselves bound by the Constitution and participate in discourse about that document's meaning.