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Monday, July 31, 2006
An End Run Around the Line Item Veto Ban?
Walter Dellinger claims in today's New York Times that there is nothing problematic about a president who signs a law and then refuses to enforce parts of it, claiming that certain parts are unconstitutional.
I can see that when a president "inherits" a law that he thinks has troublesome provisions, perhaps he should be allowed to decline to execute unconstitutional provisions. But does the same logic apply when the president has a chance to veto the law and send it back to Congress for reconsideration? I think there is something to the binary choice that he should sign it and execute it (all) or veto it. Giving the president the right to enforce the law selectivelyrisks furnishing him with a line item veto. Of course, if you think the president should have a line item veto (something the Court has ruled unconstitutional!), giving him this right seems to follow. But if you are against the line item veto, can you really sign onto Dellinger's thesis? Even if you have a relatively functionalist and anti-formalist reading of the I.7 game, I can imagine very good reasons (democratic and acountability-forcing reasons) to give the president only a binary choice; perhaps he shouldn't be able to mess up the equilibrium Congress reaches in a given bill.
As should be obvious, this debate is only somewhat related to the issue of whether the president should offer signing statements to explain his actions, a fairly uncontroversial activity.
Posted by Ethan Leib on July 31, 2006 at 02:58 PM in Article Spotlight | Permalink
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Comments
The issue seems to be whether the president has a power of executive review that is akin to the power of judicial review. If he has it, I don't see why he should have to exercise it only through his veto. That's a little like saying that judges should never sever the unconstitutional part of a statute from the constitutional part, which doesn't seem too sensible. I don't think the issue is tied to our views on the line-item veto. We might think that a power of (piecemeal) presidential review follows from the Article II oath, even if we think that a line-item veto is bad as a policy matter, or as a matter of Article I. We might also think, as a policy matter, that the line item veto is a good thing, or that it would be consistent with Article I, but that the President should have to exercise it at the time of signing, rather than waiting to consider constitutionality when exercising the power of executive review.
Suppose a legislator were to challenge part of a bill as unconstitutional, even though he voted for the whole bill because he liked the rest. He can still, I think, properly urge the court to use its power of judicial review to strike down the unconstitutional part, even though, as a legislator, he thought the rest of the bill was good enough to vote for. Likewise, the President can properly exercise his legislative-like power of signing a bill, but then use his separate executive review power (if it exists) to consider whether individual parts of it for are constitutional.
Posted by: Chris | Jul 31, 2006 4:06:15 PM
Under the veto or sign-and-enforce regime, query what the executive's obligations would be if he/she were subsequently confronted with a situation in which he/she believed the statute would be unconstitutional as applied.
Posted by: alkali | Jul 31, 2006 4:13:20 PM
For a few thoughts on these questions, see here:
http://gulcfac.typepad.com/georgetown_university_law/2006/07/thanks_to_the_p.html
Posted by: Marty Lederman | Jul 31, 2006 9:17:34 PM
What if the bill were passed overriding the President's veto? Isn't this like the inherited law? Is the President compelled to first veto and only subsequently refuse to enforce the unconstitutional portions if a law is passed anyway?
Posted by: billb | Aug 1, 2006 10:16:42 AM
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