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Monday, August 07, 2006

On Tribe, On Signing Statements

An eloquent post is available at Balkinization by Larry Tribe on the signing statement/ABA controversy.  There is much to agree with in his analysis.

Yet, unlike myself, he dismisses out of hand the suggestion that it is problematic from a "line-item veto standpoint" for the President to sign bills while he simultaneously chooses not to enforce certain provisions on account of purported "unconstitutionality."  He simply thinks there is no evidence that the President is required to make a choice to veto an omnibus piece of legislation or enforce it in its entirety. 

In his first argument on the point, he claims that "the analogy to the plainly unconstitutional line item veto, of the sort the Supreme Court struck down in Clinton v. New York, fails entirely" because the signing statements have no legally operative effect, unlike a purported attempt to veto portions of a bill. 

But I think the analogy is relevant (for both a legal and policy analysis of the President's actions) not because the signing statements have any meaning in themselves (I agree they have none) but because the President's choice not to enforce the law plainly does have a legally operative effect.  And that effect can often be virtually indistinguishable from a line item veto.  (Of course, sometimes courts might enforce a provision over the President's instructions to his branch not to enforce the law -- but at least in many cases, the President's instructions to his branch not to enforce the law will leave other branches powerless.)  If the effects are the same, a functionalist analysis renders Clinton relevant -- and the policy implications of allowing the President to so selectively enforce the law remain worth questioning.  The issue isn't whether signing statements function as vetoes; it is whether allowing selective enforcement at the moment of enactment is essentially a line item veto.

Tribe's core argument is this:

Nothing in the Constitution's text, design, or history shows that a president's only legitimate options are either to veto an entire bill or to sign it and then enforce it in its entirety regardless of his good faith views as to the constitutional infirmities either of some part of the bill or of some distinct set of its possible applications. Anybody predicting that chaos will ensue unless presidents take their oaths to uphold and defend the Constitution to mean automatically obeying whatever an Act of Congress that they have signed into law tells them to do unless and until the Supreme Court relieves them of that obligation would need to explain why the nation hasn't long since been plunged into chaos by the fact that presidents have never taken so wholly juricentric (or parliamentary) a view of the constitutional universe -- a view that certainly isn't implied by the power of judicial review as recognized in Marbury v. Madison.

The only argument Tribe countenances here is the argument from "chaos."  But that isn't, I think, the most sensible argument for why it may be best to force the President to choose, when presented with a law, to enforce a law in its entirety or veto it.  One consideration may be the suggestion made by Will Baude here that "there is some sort of cognitive bias that allows people to convince themselves that things they dislike are also constitutionally forbidden."  "Then," he argues "you might reasonably fear that the power to not-execute unconstitutional laws will act in fact as the power to not-execute any disfavored law,"  leading to a broad and unconstitutional line-item veto.

Call me crazy, but it seems to me to enhance our democratic processes to ask the President to make a choice when signing: either he can accept Congress's deal or reject it, but he cannot unbundle that deal and enforce it selectively -- that is just the sort of effective repeal and cancellation condemned by Clinton

I appreciate that the President's finding of "unconstitutionality" is different from an everyday policy judgment and that the President takes an oath that suggests that he must do something about laws he takes to be unconsitutional.  But there is a structural argument from the document that what he must do is veto the whole shebang, not mess up the Presentment Clause.  This is the other half of the argument that an executive is constitutionally obligated to veto a law he thinks is unconstitutional.  I have sympathy with that argument -- and have sympathy with this other constitutional obligation to have your cake (sign the whole law) or eat it (veto it) but not both at once.  Neither of those constitutional obligations (or fabrications, as the case may be) are enforceable, of course.  But that doesn't make them any less real.

Aside from the structural reasons are the prudential/policy reasons I mentioned above: it is better for Congress to get another bite at the apple in constructing a deal they can live with.  We get annoyed at judges who upset the balance of legislative dealmaking (and Congress uses severability provisions to evidence its intentions about what should happen in the event of a ruling of unconstitutionality); the President shouldn't be above reproach here either. 

Of course there is some temporal awkwardness.  The President may change his mind or disapprove of unconstitutional applications.  I don't propose that good faith decisions of that nature be precluded or estopped.  But it doesn't follow from that flexibility that there is no obligation for the President to sign or veto and not to veto selectively.

Posted by Ethan Leib on August 7, 2006 at 11:33 PM in Blogging | Permalink


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Suppose the President adopts your position. When the enevitable challenge to the law comes, is the President also required to charge the Solicitor General to defend it, or can the President say in court, "We agree. This portion of the law is unconstitutional. Sever it."? (Query whether it would be better (i.e. more strategic) to pretend to defend the law in order to get to the Supreme Court so that when the Solicitor General throws the case in his last set of briefs, the bad part of the law is stricken from the books nationwide.)

This, combined with my earlier question about laws passed over the Presidents veto, leads me to ask what your thoughts on the consequences of your position are? Maybe you could do a post exploring some of them?

Posted by: billb | Aug 8, 2006 9:57:18 AM

This Comment from Larry Tribe and Marty Lederman

Ethan: Thanks very much the kind words about Larry's post, and for thoughtfully wading into this important debate. We'd like to focus our comment on only one (significant) aspect of your post.

Like many who discuss these matters, you appear to treat the "unconstitutional applications" problem as a minor and marginal exception, and thus you write as though the unconstitutional poison pill, lodged as a separate and typically severable provision of an omnibus measure, represents the paradigmatic occasion for the issuance of one of these veto-avoiding signing statements.

But, far from being a minor exception, the problem of unconstitutional applications of generally valid measures is ordinarily the whole ballgame. These signing statements are usually (not always, but usually) to the effect that "I'll apply this in almost all situations, but I can imagine some cases in which it'd be unconstitutional."

This is true even with respect to the signing statement on the McCain Amendment, for example. In that case, President Bush was basically saying that, even though he might not like the statute -- and even though he fought hard for a CIA exemption -- he will *generally* abide by the prohibition on, say, waterboarding and hypothermia . . . except that he reserves the right to use such techniques in extreme cases as called for by his view of the nation's security and of military necessity.

Would we really want a president to veto a law such as the appropriations provision in which the McCain Amendment appears just because he can conjure such constitutionally problematic applications? Isn't it *better* that he sign it, implement the other 99 percent of the provisions, apply the McCain Amendment almost always, but give everybody a head's up that in rare cases he won't consider himself to be bound by the attempt to tie his hands in this area?

To be sure, President Bush is wrong on the merits here, and in so many other areas; and in fact he isn't really telling us *when* he would refuse to enforce this restriction. But it's those facts that give rise to the real objections to what Bush is saying and doing -- not the fact that he signed rather than vetoing the legislation, and not the fact that, in signing it, he attached a statement indicating his insistence that he'll obey it but only up to some (unspecified) point.

Note that this describes virtually all omnibus legislation: It is almost always the case that the President can anticipate some possible applications, of some of the provisions, that would raise constitutional problems. The mere possibility that such applications might occur is hardly a reason for the President to veto the whole thing, even as a matter of good government policy -- and certainly doesn't create a constitutional obligation to use the veto. In these cases, the signing statement informs us in advance (or it should, anyway) how the President plans to deal with what he foresees as the possible constitutional dilemmas. It is hard for us to see how that is a bad thing, especially if the President has worked beforehand (as he should) to try to eliminate or amend those provisions that raise the possibility of constitutional problems.

Posted by: Marty Lederman | Aug 8, 2006 5:16:47 PM

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