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Saturday, April 28, 2007

Signing Statements and Nonenforcement of Unconstitutional Laws Revisited

In July of last year, there was much buzz in the blogosphere about presidential signing statements and executive nonenforcement of unconstitutional laws in the wake of the release of the ABA Task Force Report on the subject.  I have revisited this topic in connection with a course I have been teaching and I continue to adhere to my view that a president should not sign a bill with a provision he thinks is facially unconstitutional.  Consistent with the ABA Report (and contrary to the statement by the former OLCers and Larry Tribe), I continue to maintain that a president should veto such a bill; if he doesn't and merely resorts to his right of nonenforcement, he violates Clinton and the Constitution itself.  More complicated -- and perhaps more relevant to the Bush II signing statements -- are statements of "as applied" unconstitutionality.  In those cases, where the president indicates an intention to abide by the law in most applications but reserves the right of nonenforcement in cases that he believes will create a collision course with the Constitution, I concede that a president need not feel bound to veto.  He should, however, issue a signing statement to explain just when he thinks those unconstitutional applications will arise.

That's a review of my position from a year ago; here I wanted to highlight a different part of the debate.  I want to go back to the 1994 Dellinger memo on the subject of executive nonenforcement.  Here's what Dellinger wrote then:

The Supreme Court plays a special role in resolving disputes about the constitutionality of enactments. As a general matter, if the President believes that the Court would sustain a particular provision as constitutional, the President should execute the statute, notwithstanding his own beliefs about the constitutional issue. If, however, 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.

My provisional view is that Dellinger is wrong about this.  If giving the political branches the right to interpret the Constitution is sound -- and I think it is -- I don't think we can limit the political branches by telling them that they can only act on an interpretation that has been vindicated or could be vindicated at the Supreme Court.  Perhaps we can agree that if the Supreme Court has clearly held something to be unconstitutional, it makes especial good sense for the president to decline to enforce such a statute.  But if executive review is to be an independent voice on the meaning of the Constitution, it seems inadvisable to limit executive non-enforcement only to those laws that could be found unconstitutional by the Supreme Court.

Notice that my view here doesn't preclude the recommendation that the president and the political branches should act in such a way as to facilitate ultimate judicial review of the constitutional question.  In this way, we can still pay respect to the idea of the Court being the ultimate interpreter of the Constitution.  But that doesn't require the political branches to always be thinking about what Kennedy would do, say.

Posted by Ethan Leib on April 28, 2007 at 09:47 PM in Blogging | Permalink

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