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Epstein on Signing Statements:

In today's Chicago Tribune, noted University of Chicago law professor Richard Epstein has an op-ed highly critical of President Bush's use of signing statements. While acknowledging there is "nothing new" about the use of such statements, Epstein raises concern about the "extraordinary freqency" and "unorthodox way" these statements are used by the Bush Administration. Here's a taste:

President Bush dishonors traditions in his aggressive use of signing statements as one way among many to circumvent the congressional and judicial checks built into the Constitution. . . .

why does the president make them? One reason is that it skews the administration of a statute by presidential subordinates before a matter gets into court. A second--and more troubling--point relates to the larger question of the role of judicial review.

Modern understanding of judicial review requires the executive branch to take its marching orders from the Supreme Court. Signing statements, I fear, could be the opening wedge to a presidential posture that judicial decisions may limit the president's ability to use courts to enforce his policies, but cannot stop him from acting unilaterally. On this theory, the president could continue to order wiretaps and surveillance in opposition to the Foreign Intelligence Surveillance Act after a court had determined that he has exceeded his powers--he just couldn't use the evidence acquired in court. Different branches of government have different views of the law, yet the executive marches on. A major check on executive power goes by the boards.

(Link via How Appealing)

UPDATE: NR's Ramesh Ponnuru is unconvinced:

I'm sympathetic enough to coordinate construction, and hostile enough to the "modern understanding of judicial review," not to be frightened by the bottom of this particular slippery slope. If Congress or a court purported to order the president (or one of his agents) to exceed his constitutional powers, for example, it would probably be right for the president to disobey.

But I also don't think this slope is especially slippery. Signing statements could be an "opening wedge," but they aren't necessarily. If the administration were taking the posture Epstein fears, its response to Hamdan would have been different.

SECOND UPDATE: Here is another take from Kevin Drum.

ANOTHER UPDATE: More Ponnuru here; more Drum here.

PersonFromPorlock:

...the president could continue to order wiretaps and surveillance in opposition to the Foreign Intelligence Surveillance Act after a court had determined that he has exceeded his powers--he just couldn't use the evidence acquired in court.

This is pretty much how I've always understood 'separation of powers' to work. Each branch marches to its own drummer, with impeachment of the chief drummer by the other branches being held in reserve for extreme cases.
7.16.2006 6:03pm
magoo (mail):
I find Epstein's critique unpersuasive. Bush's reaction to Hamdan shows he recognizes the Supreme Court as the final arbiter and is willing to abide by its rulings, even when he disagrees.
7.16.2006 6:08pm
liberty (mail) (www):
Its either legal or it isn't. Impeachement may require an extreme breach of the law, but I don't see how "signing statements" make anything legal that wasn't already...?

"the president often has claimed that the new laws violate the Constitution and signaled his intention not to enforce certain provisions, despite having signed them into law."

That just sounds like he is adding a footnote saying "by the way - I'm not going to enforce this." If he must enforce it, by law, then why would he openly admit to breaking the law in a signed statement? If he is legally allowed, then it doesn't matter whether or not he adds the signed statement, except to give a heads-up on his policy choices.

And, by the way, if it violates the constitution according to Bush, would that not generally imply that the law was over-reaching in terms of powers granted, and his non-enforcement would tend to roll back powers?

just my non-professional opinion-queries.
7.16.2006 6:13pm
Joel B. (mail):
Modern understanding of judicial review requires the executive branch to take its marching orders from the Supreme Court.

Unfortunately for Epstein then, modern understanding is wrong. The President does not march to the beat of the Supreme Court, and the president is not its baliff, he is the elected occupant of the co-equal executive branch of government. Now, the executive is right to defer to the Supreme Court as often as it does, but the executive is not "compelled" to.
7.16.2006 6:26pm
Dilan Esper (mail) (www):
Joel:

Really? You must have missed that line in the Constitution about how the President must "take care that the laws be faithfully executed". That specific language prevails over any general sentiment that the branches are "co-equal". (It is in fact not accurate to say that the branches are "co-equal". In fact, they have different powers. For instance, the judicial and legislative branches are NOT "co-equal" to the President in granting pardons. That power is reserved for the President alone. The President and the judiciary are not "co-equal" to Congress when it comes to amending the Constitution-- they have no role whatsoever. And the President and the Congress are not "co-equal" to the Supreme Court in interpreting the law-- the Court has the last word.)

Further, I might add that if you want to deal in vague generalities and ignore the text of the Constitution which specifically requires the President to follow the law, I would tell you that the framers were quite clear in limiting the powers of the President. They did not want a King. The closest anyone got to that view was Alexander Hamilton, but his ideas on this subject were REJECTED by his colleagues.
7.16.2006 6:54pm
Ship Erect (mail) (www):
And, by the way, if it violates the constitution according to Bush, would that not generally imply that the law was over-reaching in terms of powers granted, and his non-enforcement would tend to roll back powers?

Just the opposite happened with the McCain amendment (courtesy Balkinization):

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

He makes signing statements because he doesn't want to veto anything or be bound by the law. The idea that Bush is rolling back gov't overreaching through signing statements is completely absurd.
7.16.2006 7:01pm
sam24 (mail):
"Modern understanding of judicial review requires the executive branch to take its marching orders from the Supreme Court."

Since I am not a lawyer, let's see if I have this correct.

The president nominates a candadate to the supreme court. After confirmation by the senate, the judge then tells the president what to do. The election of a president is, therefore, so the people can have an indirect say in the people who tell the president what to do. Under this reasoning, should not the people also elect the judges of the supreme court? We could do away with the executive altogether and just have a Nation Manager who follows the judge's edicts. Am I missing something?

This seems a real topic for academic political scientists. I recall the brilliant move they supported about 40 or 50 yrs ago whereby the congressional terms would be changed to either 4 or 6 years. Absolutely stunning insight.
Thank God for academia.
7.16.2006 7:14pm
Just an Observer:
PersonFromPorlock:

Each branch marches to its own drummer, with impeachment of the chief drummer by the other branches being held in reserve for extreme cases.

Uh, no.

Constitution of the United States, Article II, Section 3:

... he shall take care that the laws be faithfully executed ...

Marbury v. Madison (1803):

It is emphatically the province and duty of the judicial department to say what the law is.
7.16.2006 7:28pm
PersonFromPorlock:

Marbury v. Madison (1803):

It is emphatically the province and duty of the judicial department to say what the law is.

...Saith the judicial department.
7.16.2006 7:38pm
Wintermute (mail) (www):
Am I missing something?

Marbury v. Madison, possibly.

I also have a bit on this signing statement business in my Classified Information.
7.16.2006 7:40pm
John C (mail):
It seems as though some of the conservatives (excuse me, textualists) - who argue that it is wrong for judges to go beyond the plain meaning of a statute and allow their policy preferences to color the law - are now arguing that it is OK for the President to use a signing statement to do essentially the same thing. Except worse, since the president actually has the power to enforce. Maybe, just maybe, it's because it is a conservative (and I use that term very loosely, all you true conservatives out there) that's doing the ignoring . . . hard to imagine these folks condoning this behavior if it was Pres. Clinton . . .
7.16.2006 7:51pm
hadenough:
I have never heard of this Epstein guy, but obviously he is just another communist liberal who needs to be shipped to Gitmo! When will these collectivist communist law professors get a clue?

Says HadEnough.

(just kidding, of course)
7.16.2006 7:52pm
sam24 (mail):
Am I missing something?

Marbury v. Madison, possibly.

I also have a bit on this signing statement business in my Classified Information.


I understand. The current executive seems to have missed the point that the veto is his answer to a belief that some portion of a law falls outside of the constitution.
McCain-Feingold comes to mind.

I seem to recall that Andrew Jackson had his own approach to the problem. My strong belief in our system would discourage my advocating his approach. But then, again, he was a part of the systm and he is one of the few presidents with his face on our currency.

This is of particular interest since the supreme court seems to frequently find meanings hidden in the constitution never seen by others for over 200 years. Some were even hidden away from us on foreign shores.
7.16.2006 8:09pm
frankcross (mail):
Marbury was a judicial decision, but there is plenty of evidence from the Founders, including that in the Federalist, on which it was based. Historical scholarship is pretty clear, I think, that this was a presumed power of the judiciary to say what the law is.

Of course, you needn't worship the Founders' view, but, Porlock, I wonder if you respect their view.
7.16.2006 8:14pm
Just an Observer:
Ramesh Ponnuru: : If Congress or a court purported to order the president (or one of his agents) to exceed his constitutional powers, for example, it would probably be right for the president to disobey.

I will agree with that comment with regard to Congress. The Supreme Court then could make the final determination. There is opinion on the books of the OLC -- from the Clinton era, but never rescinded by the Bush administration -- advising the president to that effect.
7.16.2006 8:16pm
liberty (mail) (www):
"consistent with the constitutional limitations on the judicial power"

Maybe he was rollong back judicial over-reach.

But that wasn't the main point of my post - is it legal or illegal?
7.16.2006 8:19pm
liberty (mail) (www):
"rolling back" that should have read.

Also: "I will agree with that comment with regard to Congress. " says Just An Observer; but you would not agree that the president should disobey an unconstitutional ruling by the Supreme Court, in any case? Can he pass a law in order to fight the decision? Usually the ruling is, for example, "government can take your property for no reason" not "government must take your property for no reason. But what if we happened to have 9 idiot justices at once and a ruling was passed that made private property illegal? Should the other branches of government not disobey then?
7.16.2006 8:29pm
Just an Observer:
Kevin Drum, in the update linked above, either can't recognize sarcasm when he reads it, or he is deliberately misconstruing Scalia's dissent in Hamdan.

When Scalia noted that the signing statement was not considered part of the legislative history, he was tweaking his colleagues under his famous and longstanding position that no legislative history deserves any weight whatsoever.
7.16.2006 8:35pm
Justin (mail):
JaO, if that was true, wouldn't Scalia's decision be called a "concurrance" of sorts? If Scalia truly didn't want the Court to use the signing statement, or to make a broader point about legislative history being bad, he's more than capable of a writer to make that point - for instance, his dissent in the endangered species case - without being completely off topic or using illusive, difficult to understand sarcasm.

Scalia's writing style is straightforward enough that, if you compare it to other attacks on the majority for being hypocritical (particularly when dealing with legislative history), that I cannot see the quoted text, at least in isolation, being considered sarcasm.

Now, if I went over and reread the whole thing, with this point in mind, and the text around it made the sarcasm more obvious, that would be another thing.

Even then, Kevin Drum is not a lawyer, and it might be unfair to hold his intimacy with Scalia's theories to the standard of Volokh columnist.
7.16.2006 8:55pm
Reg (mail):
The best advocate for executive equality with the other branches regarding their duty and power to interptet the constitution is Michael Stokes Paulson. Basically, the theory is that every branch of the government has a duty to interpret the Constitution and ensure its conduct is Constitutional. Judicial review is just a species of this requirement. It was understood that courts would refuse to uphold laws contradicting the constitution. I think it was also understood that the executive would refuse to enforce laws or judicial decisions that contradicted the constitution, and that the legislature would refuse to pass unconstitutional legislation. I think this ought to be obvious.

Of course, if one views judicial review as not just a refusal to uphold law contradicting the constitution as written, but as a superveto power wiping out all state and federal law conflicting with current liberal ideology, this won't be convincing.

Also, it doesn't help that presidents and Congresses have abdicated their role, and SCOTUS has become overly comfortable with it. After Marbury, I don't think SCOTUS used judicial review until Dred Scott. Judicial review is a big deal. Now its just routine for SCOTUS. This probably accounts for the current view that only SCOTUS has the power to nullify unconstitutional law.

Imagine if after 9-11, Congress passed a law requiring the president to detain all muslims in temporary camps, and sued the president when he refused to enforce the unconstitutional law. Now suppose SCOTUS rules it constitutional. Must the president enforce the law, despite his sincere belief that both Congress and SCOTUS are wrong and that such an act would be a major violation of the Constitution? I'd say no.

Ponnuru is right on. The resolution for such a constitutional standoff is the people, when they elect Congressmen and Presidents. There isn't anything frightening to me about that.
7.16.2006 9:12pm
sam24 (mail):
Much of the current thread seems to have its origin in the Hamdan v. Rumsfeld case.

I was struck by Dean Harold H. Koh's comment about the extension of Common Article 3 to the likes of AQ which he supported. This was before the Senate Judicary Comm. He made the point that whales were not signatories of the treaty that banned whale hunting, yet the US signed the treaty despite this fact.

Now I am not even a lawyer, much less a law school dean. The fact is, I failed to follow his reasonig. Did he mean that we could over come this little problem if congress gave the POTUS expicit athuority in the event that whales attacked us, as implied in other parts of the ruling? Or did he mean that Common Article 3 applied to whales also?

Inquiring minds want to know.
7.16.2006 9:17pm
PersonFromPorlock:

Historical scholarship is pretty clear, I think, that this was a presumed power of the judiciary to say what the law is.

The Court has no power to create law. What the Court has is the power to say what the Congress (and the President, unless passed over a veto) say the law is, and the Congress and the President are free to disagree, it being their law.

Of course, you needn't worship the Founders' view, but, Porlock, I wonder if you respect their view.

We have a deliberately messy system, the Founders' view being that no one in government should have an absolute title to authority. They wanted conflict over power, and they wanted it to remain unresolved.
7.16.2006 9:26pm
The Ace (mail):
Modern understanding of judicial review requires the executive branch to take its marching orders from the Supreme Court.

This is one of the more silly &ridiculous things I've read in recent memory.
7.16.2006 9:41pm
The Ace (mail):
Marbury v. Madison, possibly.

Yes, the 9 justices pronounce themselves king and we're all just supposed to go merrily along.
7.16.2006 9:43pm
The Ace (mail):
He makes signing statements because he doesn't want to veto anything or be bound by the law

By referencing the Constitution?
7.16.2006 9:45pm
byomtov (mail):
If Congress or a court purported to order the president (or one of his agents) to exceed his constitutional powers, for example, it would probably be right for the president to disobey.

While it's possible to imagine situations of this sort, isn't the real danger having a President exceed his Constitutional powers? Can anyone seriously regard a system where impeachment is the only check on executive power as desirable, or workable?
7.16.2006 10:10pm
Medis:
As an aside, to make hadenough's point more explicit, it should give thoughtful conservative's some pause when the likes of Epstein are protesting something.

Anyway, I remain convinced that signing statements which effectively amount to a line item veto are violations of the Presentment Clause. Again, the Constitution states:

"Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it."

There simply is no provision in the Constitution for the President objecting to some parts of a bill, but signing it anyway, and then refusing to enforce those parts of the bill to which he objected. And thus not only is the President in effect grabbing for himself the judicial power that was supposed to be vested in the Supreme Court, but he is also grabbing for himself the legislative power that was supposed to be vested in Congress.

To anticipate two replies:

(1) This issue is completely distinct from the problem of whether the President should enforce an unconstitutional law which he did not sign (either because it was passed before his Administration, or over his veto, or perhaps even because a law he signed has unforeseen unconstitutional applications). Again, the issue is what the Constitution requires during the process of making the law, and in my view the President simply cannot sign a bill to which he already objects at the time it is presented to him.

(2) Yes, other Presidents, including Clinton, have done this, although not with anything near the frequency of the current President. But the OLC under Clinton noted that this practice was in effect a line item veto. And subsequently to the OLC's discussion of this issue, in Clinton v. New York, the line item veto was rightly declared unconstitutional as a violation of the Presentment Clause. So, the OLC under Clinton was relying on an incorrect view of the legality of the line item veto when it endorsed this practice.
7.16.2006 10:24pm
Jake (Guest):
Does it really make sense though to argue a sort of estoppel theory of constitutionality? It seems more logical for the President simply not to be bound to enforce unconstitutional laws, just as the Supreme Court is not bound to uphold unconstitutional laws.

Do we ever distinguish between laws signed by the President and laws passed over a veto in any other context?
7.16.2006 10:49pm
Medis:
Jake,

If you are referring to my post, then I would again note that you are raising a different issue. Before we even get to the issue of whether the President is bound to enforce an unconstitutional law, we can ask whether signing a bill with such a signing statement is itself constitutional.

And again, the Constitution is quite clear on this point: "if he approve he shall sign it, BUT IF NOT HE SHALL RETURN IT, with his objections to that House in which it shall have originated." The President is simply violating the capitalized portion of the Presentment Clause every time he objects to part of a bill but then signs the bill, rather than returning the bill unsigned.

And there are many good reasons why the Framers of the Constitution might have wanted to mandate this particular process. One of the simplest is that it leaves to Congress the task of deciding how to deal with a President's objections. And that is a crucial issue--for example, insofar as the President may in fact end up refusing to enforce certain provisions as unconstitutional, Congress may want to recraft the entire bill to deal with that fact. And so the Constitution, by requiring the President to return such a bill unsigned, allows Congress an opportunity to legislate in light of these objections.

But in some sense it doesn't matter why the Framers mandated this process. The fact is that they did, and the President is therefore bound to follow it.
7.16.2006 11:13pm
Just an Observer:
liberty: But what if we happened to have 9 idiot justices at once and a ruling was passed that made private property illegal? Should the other branches of government not disobey then?

What if the president pardoned someone and the courts thought it was an idiotic decision? Could they reverse it? No.

The Constitution does not guarantee there will be no idiot justices (or legislators or presidents.) But it does provide checks and balances to minimize the damage from imperfections in human character and judgment.

Ultimately, it has to be someone's job to decide what the law is, and in our tripartite system "the judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."

The courts don't get to be legislatures (writing laws) or executives (executing laws), but they do get to interpret and apply the laws in properly presented cases. The President and Congress have a responsibility follow the Constitution in good faith, but that doesn't give either of them the final word.
7.16.2006 11:23pm
Just an Observer:
Justin: Scalia's writing style is straightforward enough that, if you compare it to other attacks on the majority for being hypocritical (particularly when dealing with legislative history), that I cannot see the quoted text, at least in isolation, being considered sarcasm.

Now, if I went over and reread the whole thing, with this point in mind, and the text around it made the sarcasm more obvious, that would be another thing.

Even then, Kevin Drum is not a lawyer, and it might be unfair to hold his intimacy with Scalia's theories to the standard of Volokh columnist.


Well, if Drum is simply ignorant of Scalia's consistent position on the use of legislative history, as you suggest, that could also help explain his misunderstanding. Of course, he could have just read the context of Scalia's comments on legislative history, which section concludes:

As always — but especially in the context of strident, partisan legislative conflict of the sort that characterized enactment of this legislation — the language of the statute that was actually passed by both Houses of Congress and signed by the President is our only authoritative and only reliable guidepost. [My emphasis]
7.16.2006 11:37pm
Jake (Guest):
Medis:

And again, the Constitution is quite clear on this point: "if he approve he shall sign it, BUT IF NOT HE SHALL RETURN IT, with his objections to that House in which it shall have originated." The President is simply violating the capitalized portion of the Presentment Clause every time he objects to part of a bill but then signs the bill, rather than returning the bill unsigned.

That simply leaves us with a conflict between the Presentment Clause and the Take Care clause. It doesn't establish your constitutionality-by-estoppel theory.
7.16.2006 11:53pm
frankcross (mail):
Actually, Mr. Porlock, the founders were pretty clear that the judiciary got the last say on what the Constitution or the law meant.

A good source for this is The Origins of Judicial Review, written by two conservative law professors, John Yoo and Saikrishna Prakash. You may have heard of Mr. Yoo

_____________________

Medis, I don't understand your constitutional argument. In signing statements, the president is not declaring portions of laws unconstitutional, he is merely declaring how he will interpret laws, in light of his view of the constitution. That is presumably the responsibility of the executive branch.
7.17.2006 12:06am
Medis:
Jake,

I'm not sure how to make this any clearer. I'm not addressing whether the President can refuse to enforce an unconstitutional law, and if so, under what conditions. So, I am not, as you suggest, arguing that once a President signs a bill, he is "estopped" from refusing to enforce it because he deems it unconstitutional. Indeed, it is easy to imagine relatively uncontroversial cases where the President may refuse to enforce a law he has signed. For example, if the President signs a bill into law and then an Article III court holds that the law is unconstitutional, then the President may refuse to enforce that law even though he personally signed it.

But again, I'm addressing the very different issue of whether the President can deem a part of a BILL unconstitutional, and yet then sign it anyway. This is simply a different question than the one you seem to think that I am addressing. Again, this is a different issue because it goes not to what the President may do once a bill has already become a law. Rather, it goes to what the President SHALL do with a bill that has not yet become a law.

So, there is no "conflict between the Presentment Clause and the Take Care clause". They simply address very different questions, with the Presentment Clause addressing what the President shall do with BILLS, and the Take Care Clause addressing what the President shall do with LAWS.
7.17.2006 12:20am
Medis:
frankcross,

It depends, of course, on the signing statement. Some of the President's signing statements HAVE declared portions of the bill he is signing unconstitutional as written. For example, as I have noted here before, this is part of the President's signing statement for H.R. 2500, the "Department of Commerce, Justice, State, the Judiciary, and Related Agencies Appropriations Act, 2002": "[S]everal other provisions of the bill unconstitutionally constrain my authority regarding the conduct of diplomacy and my authority as Commander-in-Chief. I will apply these provisions consistent with my constitutional responsibilities."

My simple thesis is that this is an objection to the bill within the meaning of the Presentment Clause, and the President cannot sign a bill under such circumstances. Rather, he SHALL return it unsigned to the originating House with his objections.

Incidentally, the President does in fact frequently follow up such objections with a statement of his intention to "apply" or "construe" the bill in a manner which he would deem constitutional. But insofar as this is not what the bill as written would provide--which his own signing statements have already claimed--this practice is even worse than a line item veto. It is a line item amendment of the bill he is signing, which is an even clearer example of a violation of the Presentment Clause.
7.17.2006 12:38am
Lev:

What if the president pardoned someone and the courts thought it was an idiotic decision? Could they reverse it? No.


If as has been stated above,


It is emphatically the province and duty of the judicial department to say what the law is.


Then the answer is yes.
7.17.2006 1:16am
Lev:

Historical scholarship is pretty clear, I think, that this was a presumed power of the judiciary to say what the law is.


---


The Court has no power to create law. What the Court has is the power to say what the Congress (and the President, unless passed over a veto) say the law is, and the Congress and the President are free to disagree, it being their law.


In both cases, the answer is no. The Supreme Court is court, which means it decides cases. In the coursed of deciding a case that is before it, it must determine what law applies in and to that case.

In theory, the SCt only decides what the law is that applies in the case that is before it. If the SCt has the plenary power


It is emphatically the province and duty of the judicial department to say what the law is.


then it may determine what the law is, even in those cases that are not before it. It may give advisory opinions. It may raise issues of law on its own motion without litigants and determine what the proper resolution of that law is.
7.17.2006 1:21am
Lev:
Signing statements were originally set up to be an executive branch counterweight to ponied up legislative history in judicial interpretation of statutes.

If courts use legislative history to determine what congress meant in passing a piece of legislation in the form it was passed, then it is perfectly appropriate for executive branch legislative history to be formed and for courts to use that in determining what the executive meant in signing a piece of legislation into law in the form it was signed.

Or perhaps someone feels the executive branch has no input into the legislation and form of it that congress passes.

As part of the legislative history, and of the executive branch signing statement, it seems to me it is perfectly appropriate for the bloviating gasbags who form the legislative history to declaim as to what and how the legislation was meant to be enforced--so the courts can determine if there is a constitutional manner consistent with the intent of congress in which the legislation can be enforced in the specific case that happens to face the court in question. Similarly, it is perfectly appropriate for the president signing the legislation into law to declaim as to what and how the legislation was meant to be enforced--so the courts can determine if there is a constitutional manner consistent with the intent of executive in which the legislation can be enforced in the specific case that happens to face the court in question.

There is nothing unorthodox about any of this.

What is unorthodox is the manner in which Bush will not stand up like a man and veto what should be vetoed instead of ponying up a word salad before tossing the legislation to the courts to fix what he should not have allowed to become law in the first place.
7.17.2006 1:30am
Just an Observer:
Lev,

Applying "the law" and believing an unreviewable presidential action such as a pardon to be "idiotic" are two entirely different things. Your strawman is preposterous on its face.
7.17.2006 1:34am
Medis:
Lev,

Those are two separate issues. The judicial power of the United States may include saying what the law is, but the ability of Article III courts to use that judicial power could be limited by their jurisdiction. It so happens that Article III limits the jurisdiction of the federal courts to cases and controversies. It need not be that way, however--some courts in other countries and in some states can in fact sometimes issue advisory opinions.

Again, that fact about the jurisdiction of other courts just suggests that these are two different questions--the nature of the judicial power of the United States in general, versus the jurisdiction of the federal courts.
7.17.2006 1:36am
Medis:
Lev,

Sorry, we cross-posted. I don't think there is anything unconstitutional about a President merely using signing statements to record what he thinks a law does and why he is signing it. I'm not sure if courts should care much about that, but I'm not a big fan of legislative history either.

Again, though, that practice must be distinguished from signing statements in which the President specifically objects to the constitutionality of one or more provisions of the bill as written, but then signs it anyway. That is not the same thing as explaining why he is signing a bill. Indeed, it makes nonsense out of his signing the bill, particularly in light of the fact that the Presentment Clause requires him to return such a bill unsigned.
7.17.2006 1:43am
Lev:
Just an Observer


Applying "the law" and believing an unreviewable presidential action such as a pardon to be "idiotic" are two entirely different things. Your strawman is preposterous on its face.


Not at all. If


It is emphatically the province and duty of the judicial department to say what the law is.


then the SCt may determine under what conditions the pardon power may be constitutionally used, because the Constitution is part of "the law", and


It is emphatically the province and duty of the judicial department to say what the law is.


Thus, the SCt has the power to determine whether a pardon is contitutional, or idiotic, and if unconstitional, or idiotic, reverse it.
7.17.2006 1:56am
Lev:
Medis


Again, though, that practice must be distinguished from signing statements in which the President specifically objects to the constitutionality of one or more provisions of the bill as written, but then signs it anyway. That is not the same thing as explaining why he is signing a bill. Indeed, it makes nonsense out of his signing the bill, particularly in light of the fact that the Presentment Clause requires him to return such a bill unsigned.


Yes. I said that.
7.17.2006 1:57am
Just an Observer:
Lev,

But "unconstitutional" and "idiotic" are not remotely the same thing.
7.17.2006 2:02am
A.S.:
Wow - did anyone else find that op-ed by Epstein to be as UNpersuasive as I did? That was about as poorly argued an op-ed as I've ever seen from someone as ostensibly bright as Epstein.

Epstein states he has two main objections - NEITHER of which he supports.

First, Epstein argues that "What is new and troubling is the extraordinary frequency with which President Bush has used these statements". OK, fine Mr. Epstein - WHY is it troubling that Bush has used these statements more frequently. There is absolutely NO argument as to why it is problematic that Bush has objected to provisions in 100 pieces of legislation when Clinton (e.g.) only objected to [XX] pieces of legislation (presuamably XX being some number less than 100). Can anyone give me any kind of reason at all as to why it is problematic to object to 100 pieces of legislation, but objecting to [XX] pieces of legislation is hunky-dory? Anyway, that's the first Epstein "argument" that is non-existent.

Second, Epstein states that he objects to "the unorthodox way [Bush] uses [signing statements]". Can someone please tell me what exactly this "unorthodox" way of using signing statements is??? Because Epstein doesn't say so at all. It is certainly NOT "unorthodox" for a President to state that he will refuse to enforce a provision of legislation as unconstitutional. That's been a perfectly ORTHODOX use of signing statements, going back for many Presidents, all the way to ANDREW JACKSON -- as Walter Dellinger made clear in his OLC Memo supporting signing statements. Of course Clinton did so quite often. So obviously it would be just flat wrong to call that "unorthodox". Similarly, Presidents have for a long time used signing statements to tell the rest of the executive branch how the new law should be interpreted. So that objection is hardly "unorthodox" either. So what else is it that Bush is doing that is so "unorthodox"? Epstein never says - which is his second non-existent argument. (Maybe Epstein just doesn't understand the meaning of the word "orthodox"???)

Finally, the one substantive objection Epstein DOES deign to explain is COMPLETELY THEORETICAL! He writes "Signing statements, I fear, could be the opening wedge to a presidential posture that judicial decisions may limit the president's ability to use courts to enforce his policies, but cannot stop him from acting unilaterally." But, of course, Bush has NEVER DONE THAT. So while it is theoretically possible to be "the opening wedge" sometime in the future - it hasn't been for Bush. So why this would be an objection to BUSH's use of signing statements escapes me.


I've seen some pretty bad op-eds from time-to-time from people like college students and actors. But, really, has anyone ever seen such a poorly argued op-ed from some as bright as Epstein?
7.17.2006 2:11am
A.S.:
Signing statements were originally set up to be an executive branch counterweight to ponied up legislative history in judicial interpretation of statutes.

Actually, this is precisely wrong. The oldest uses of signing statements were to express constitutional problems with legislation, not to provide a counterbalance to legislative histories. The OLC memo I cited above states a short hsitory of signing statements:

"So far as we have been able to determine, Presidential signing statements that purported to create legislative history for the use of the courts was uncommon -- if indeed it existed at all -- before the Reagan and Bush Presidencies. However, earlier Presidents did use signing statements to raise and address the legal or constitutional questions they believed were presented by the legislation they were signing. Examples of signing statements of this kind can be found as early as the Jackson and Tyler Administrations, and later Presidents, including Lincoln, Andrew Johnson, Theodore Roosevelt, Wilson, Franklin Roosevelt, Truman, Eisenhower, Lyndon Johnson, Nixon, Ford and Carter, also engaged in the practice."
7.17.2006 2:15am
A.S.:
As an aside, to make hadenough's point more explicit, it should give thoughtful conservative's some pause when the likes of Epstein are protesting something.

Likewise, it should give thoughtful liberals some pause when the likes of Walter Dellinger is supporting the same thing.

Just as a note - Epstein is NOT a conservative. He's kind of an iconoclastic libertarian. So I'm not sure why a CONSERVATIVE should have pause at his argument. Especially as poorly argued a point as this.
7.17.2006 2:20am
A.S.:
Just a note on Medis's idea that, under the Presentment Clause, if a President objects to a piece of legislation because he thinks it constitutionally infirm, the President must veto it.

That's all well and good as a theoretical interpretation of the Presentment Clause. But it has never been interpretted this way. Indeed, as Dellinger notes, going all the way back to THOMAS JEFFERSON, Presidents have been willing to sign legislation they thought to be unconstitutional - in Jefferson's case, he was willing to sign the Louisiana Purchase appropriation even though he thought it unconstitutional. If were to take Medis's view, everbody living west of New Orleans should turn in their passports and start learning French, because all that land would no longer be part of the United States.
7.17.2006 2:30am
hadenough:
A.S. writes:

Just as a note - Epstein is NOT a conservative. He's kind of an iconoclastic libertarian. So I'm not sure why a CONSERVATIVE should have pause at his argument.

A.S., what's your definition of a conservative? Someone who supports everything the Bush Administration does?
7.17.2006 4:50am
The Voice of Reason (mail):
If were to take Medis's view, everbody living west of New Orleans should turn in their passports and start learning French, because all that land would no longer be part of the United States.

I was going to write a substantive post, but this really made me laugh and killed the urge.
7.17.2006 6:31am
dw (mail):
Can we not agree that there has been unprecedented number of signing statements with consitutional objections and indications that the President will carry out the law in a way differing from its text?

Can we not agree that, given the unprecedented number, this is an indication of a failure by the President and Congress to consistantly follow the Presentment clause?

If the Presentment clause does not function well, wouldn't the conservative viewpoint be that one should rather amend the constitution to permit some other process, for example a Presidential veto of parts of a piece of legislation, than to to continue to make an end run around the clause?

Or, is this just another part of the constitutional structure that is permanently broken -- like the fact that the Congress no longer formally declares war and/or the President no longer formally seeks declarations of war?
7.17.2006 7:17am
A.S.:
A.S., what's your definition of a conservative?

You don't know the difference between a libertarian and a conservative? I would have thought that's pretty elementary stuff.
7.17.2006 11:14am
Just an Observer:
Medis,

I have been mulling your theory about signing statements and the Presentment Clause, and I am not sure what I think of it in principle. (It is a different issue from what my own focus has been on actual violation of statutes by a president who thinks them unconstitutional.)

One question: Does your theory distinguish between facial and as-applied "unconstitutionality?" If a president thinks an act is not unconstitutional across-the-board, but could be in some circumstances, do you think he is is obliged not to sign the bill?

I have the impression from your comment above that you think the as-applied reservations in signing statements are unacceptable. Do I understand you correctly?
7.17.2006 11:18am
plunge (mail):
Shorter Ramesh Ponnuru: "We should chortle at the idea that an executive could have TOO much power. Meanwhile, tiny bits of DNA are morally equivalent to persons, THAT is what we need to focus on! I'm a rational conservative!"
7.17.2006 11:31am
frankcross (mail):
A.S. I'm not sure there really is a good definition of a conservative. There are libertarians who certainly vary substantially from the religious right, and neocons who are vastly separate from paleocons. I know smart people who think libertarianism is the definition of conservatism and others who think it's the antithesis.

Epstein is a conservative, in the sense that he on balance favors conservative policies, as opposed to liberal policies. I think it likely that, if he voted, he chose Bush over Kerry.
7.17.2006 11:58am
A.S.:
I don't understand how Medis makes a distinction between (i) his claim that a President must refuse to sign a bill he thinks may be unconstitutional (even just in part) and (ii) his apparent belief that it is just fine for a President to refuse to enforce an law he thinks unconstitutional. They seem to me to be the same thing.

Let's take two scenarios - one where a President has a constitutional objection to a bill one minute before he signs it, and one where a President has a constitutional objection to a law one minute after he signs it into law. You're saying we need to treat those two scenarios differently? Maybe a President should just wait one minute after signing the bill to issue his statement objecting to a provision on constitutional grounds. Then Medis seems to say the President is just fine in doing so.
7.17.2006 12:06pm
Medis:
A.S.,

You say: "If were to take Medis's view, everbody living west of New Orleans should turn in their passports and start learning French, because all that land would no longer be part of the United States."

I'm not sure why you would think that follows from the views I have stated. I would agree that if President Jefferson had attached a signing statement declaring aspects of the Louisiana Purchase bill unconstitutional and his intent to not enforce those aspects, but then he signed it anyway, then he would have violated the Presentment Clause. But that didn't happen, of course--although Jefferson apparently did believe that the bill was of questionable constitutionality, he did in fact end up approving the bill, rather than objecting to it.

So again, you are raising a different issue--whether a President is bound to object to a bill if he thinks it is unconstitutional, or whether he can approve it anyway. But my point is different--my point is that if the President does object to the bill on constitutional grounds, then he cannot sign it.

Incidentally, I have also not addressed the remedy for these violations of the Presentment Clause. I would not, in fact, suggest that the proper remedy is invalidating the law. Rather, I would suggest that a proper remedy should be directed at the President himself, since he is the one violating his constitutional duties.

JAO,

I view it as a different question what the President can do if he states that a bill is ambiguous, and that on only some readings it would have unconstitutional applications. In such a case, I think that the President probably should return the bill unsigned for clarification. But arguably the President is not required to do so as long as he believes that the bill is susceptible to a constitutional reading, and that is his reason for approving rather than objecting to the bill. In my view, this does not necessarily violate the Presentment Clause because the President is in fact approving the bill in its entirety, albeit only on one possible reading of the bill.

In contrast, if the President simply objects that the bill as written would have unconstitutional applications, then I do not think that he can sign the bill. And that is true even if he independently devises some limitations which, if followed, would prevent the bill from having such applications.

Again, I would suggest that the Presentment Clause process is intended to leave it to Congress, and not the President, to decide how to deal with such problems. So, the President cannot substitute a bill of his own devising--a bill with additional limitations that do not appear in the actual bill presented to him--and approve that substitute bill instead. And that is because in such a case the President has gone beyond resolving ambiguities to actually legislating, and that is the job of Congress.
7.17.2006 12:14pm
A.S.:
But my point is different--my point is that if the President does object to the bill on constitutional grounds, then he cannot sign it.

I thought this is exactly the Jefferson scenario. He objected to the Louisiana Purchase appropriation bill - yet signed it anyway.

Or is it that Jefferson didn't make an official statement objecting to the bill? Are you saying that is a President objects to the constitutionality of a bill but doesn't write that objection down on paper, then it's OK if he signs it?
7.17.2006 12:21pm
Medis:
A.S.,

We cross-posted. In response to your latest post:

You are actually confusing three different issues. One issue is whether the President can in fact approve a bill or provision of a bill which he suspects is unconstitutional. A second is whether the President can refuse to enforce a law or provision of a law which he believes is unconstitutional. Neither of those issues is the issue that I have identified.

Rather, the issue that I have identified--the issue which in fact is directly addressed by the Constitution--is whether the President can simultaneously object to a bill or a provision of a bill on constitutional grounds, and yet sign that bill anyway.

You seem to think that this is the same issue as the first one, but it is not. The Louisiana Purchase is a good example: regardless of what Jefferson may have thought about its constitutionality, he did in fact approve of the bill. So, that was not a case where he was objecting to the bill, but signing it anyway. Rather, at most it was a case where we might think that he should have objected to the bill on grounds of intellectual consistency, but nonetheless he approved and signed it anyway.

Finally, as for your scenarios: what happened in those two minutes? If the President actually did change his mind during those two minutes for some reason, then I think it is an odd but theoretically unobjectionable sequence of events.

But I think you are suggesting something different: the President does in fact object before he signs the bill, but he just doesn't say anything. Immediately after signing the bill, he voices his preconceived objections and his preconceived intention not to enforce the bill as written. I would say in such a case that the timing of his statement doesn't matter. Insofar as he already objected to the bill beforehand, he was bound not to sign it, whether or not he had stated his objection beforehand.

And again, this is simply distinct from the case where the President may doubt the constitutionality of a bill, but he approves of it anyway. In that case, he does not in fact object to the bill beforehand, even though maybe we think he should.
7.17.2006 12:27pm
Medis:
A.S.,

We cross-posted again. I think my latest post nonetheless addressed your latest post. But to summarize: Jefferson didn't object to the Louisiana Purchase bill. Maybe he should have, given his views on its constitutionality, but that is a different question.
7.17.2006 12:32pm
Ship Erect (mail) (www):
Me: He makes signing statements because he doesn't want to veto anything or be bound by the law

The Ace: By referencing the Constitution?

In the case of the McCain amendment, that's precisely what happened. "Even though Congress passed this bill and I'm signing it into law right now, I am free to ignore it because the Constitution says I am the commander in chief of the armed forces." Note that he could have vetoed it, but he didn't. Why is obvious--he wanted to keep our torture policies while seeming to be against torture. What's the difference between this behavior and that of a monarch?
7.17.2006 12:39pm
Medis:
While other topics are brewing, I want to more specifically highlight something that I mentioned before. In his 1993 OLC memo, Dellinger wrote:

"More boldly still, the President may declare in a signing statement that a provision of the bill before him is flatly unconstitutional, and that he will refuse to enforce it. This species of statement merits separate discussion. [Footnote 6]."

Footnote 6 reads: "One reason such signing statements may be controversial is that the refusal to execute a statutory provision has substantially the effect of a line-item veto."

In 1998, the Supreme Court struck down the Line Item Veto Act as violative of the Presentment Clause. That holding renders Dellinger's analysis inapplicable: what he called "controversial" in 1993 is in fact unconstitutional, as the Court held in 1998.
7.17.2006 12:44pm
Medis:
Ship Erect,

I think the McCain Amendment provides an obvious example of why the Framers were wise to mandate that Presidents shall return bills to which they object, rather than simply allowing that Presidents may return such bills. Regardless of what one feels about the merits of the President's objections to the McCain Amendment, I can see no legitimate reason why someone would oppose Congress reconsidering the bill in light of the President's objections. Indeed, even from the President's perspective, at worst Congress would simply override the veto, and at best Congress might reform the bill to address his objections. So, what does he have to lose?

Of course, the real answer is at least twofold. One part is that the President could lose politically by vetoing the bill. The other part is that the President could lose substantively if Congress changes the bill to make it tougher for him to avoid enforcing it as written (say, with additional legislative or judicial oversight). But I would suggest that neither of these interests is legitimate, particularly in light of the Presentment Clause.
7.17.2006 12:54pm
frankcross (mail):
Two points to add:

1. The courts have consistently given the executive tremendous discretion in whether or not to enforce a statute, on many different grounds. In that sense, the Dellinger statement about line-item veto is inapposite -- the same does not extend to appropriations.

2. The same does not apply to compliance. The executive does not have so much discretion in whether to comply with a statute. But a statement is just a statement. It is not noncompliance. The issue is the action taken. The statement might be nothing more than bluster. And it has the substantial benefit of flagging the issue, so that presidential actions might be more closely monitored. I am still at a loss over all the controversy over the presidential statement, as opposed to actual presidential actions.
7.17.2006 12:56pm
Medis:
frankcross,

I think Dellinger's memo is quite helpful in explaining the issue you are not addressing. He at least sees the issue, although he doesn't really address it. He writes:

"If the President may properly decline to enforce a law, at least when it unconstitutionally encroaches on his powers, then it arguably follows that he may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing."

My point in part is that Dellinger is wrong: it does not in fact follow that the President may simultaneously announce that he will not enforce a provision as he is signing it. Again, the Presentment Clause applies uniquely to that issue--under what conditions a President can sign a bill, and under what conditions he shall return it unsigned--and notably Dellinger simply does not address the Presentment Clause at all.

As for why it matters: again, I think the McCain Amendment is an excellent example. One might put this in notice terms: if the President is planning to declare a law unconstitutional and refuse to enforce it, and he knows that before he signs the bill, then rather than signing the bill, he should return it to Congress with his objections attached. That gives Congress notice of his views, and an opportunity to reform the bill as they see fit.

Again, I don't see any legitimate reason to think this is a bad idea--what possible interest is served by bills becoming laws when the President already knows that he will refuse to enforce the bill as written? Why shouldn't that bill be returned to Congress, rather than becoming a law which will not be enforced? The President signing bills into laws under such circumstances simply serves no legitimate interest.

And it also happens to violate the Constitution.
7.17.2006 1:06pm
frankcross (mail):
Lots of reasons. First, he doesn't "know" what he will do in future circumstances. He doesn't know what the circumstances will be and he may change his mind. Second, he won't be President forever. It's material that the bill is law to be applied by a future President, as opposed to sending it back.

I think your position on Constitutional violations is woodenly formalist, even more than Scalia-like. Under your theory, it seems like the signing statement would be fine if it were made a day later, or perhaps an hour later. By then, the presentment clause issue is over. Do you want the debate to rest on such minutiae?
7.17.2006 1:43pm
Medis:
frankcross,

You say: "Lots of reasons. First, he doesn't 'know' what he will do in future circumstances. He doesn't know what the circumstances will be and he may change his mind. Second, he won't be President forever. It's material that the bill is law to be applied by a future President, as opposed to sending it back."


I don't understand how anything you mentioned is a legitimate reason for the President to a sign a bill which he at the time is planning not to enforce as written. Sure, he might change his mind about enforcing the bill, and a future President might disagree with his assessment. But why do those contingencies actually give him a reason to sign a bill which, based on his current assessment, he plans not to enforce?

You also say: "I think your position on Constitutional violations is woodenly formalist, even more than Scalia-like. Under your theory, it seems like the signing statement would be fine if it were made a day later, or perhaps an hour later. By then, the presentment clause issue is over. Do you want the debate to rest on such minutiae?"

As I also explained to A.S., my actual view is that the timing of the statement per se is irrelevant. In fact, in my view the fact of the signing statement is only evidentiary. My substantive point--based directly on the text of the Constitution--is that if the President objects to a bill at the time it is presented to him, he must return that bill unsigned with his objections.

So, as I noted, the signing statements themselves are only evidence (albeit conclusive evidence) of the fact that the President objected to the bill at the time he signed it. But the constitutional violation occurs because he signed the bill rather than returning it, not because of the signing statement per se.
7.17.2006 2:02pm
A.S.:
You are actually confusing three different issues. One issue is whether the President can in fact approve a bill or provision of a bill which he suspects is unconstitutional. A second is whether the President can refuse to enforce a law or provision of a law which he believes is unconstitutional. Neither of those issues is the issue that I have identified.

Rather, the issue that I have identified--the issue which in fact is directly addressed by the Constitution--is whether the President can simultaneously object to a bill or a provision of a bill on constitutional grounds, and yet sign that bill anyway.

You seem to think that this is the same issue as the first one, but it is not. The Louisiana Purchase is a good example: regardless of what Jefferson may have thought about its constitutionality, he did in fact approve of the bill. So, that was not a case where he was objecting to the bill, but signing it anyway. Rather, at most it was a case where we might think that he should have objected to the bill on grounds of intellectual consistency, but nonetheless he approved and signed it anyway.


I confess that I don't see a difference. In part, maybe I'm not sure I understand what you mean by "approve".

As far as I'm concerned, there are only two questions:

1. Before a bill is signed, the President either thinks the bill is (in whole or in part) unconstitutional, or he doesn't.

2. Then, either the President either signs the bill or he doesn't.

Re Jefferson and the Louisiana Purchase: As to question #1: before the bill was signed, Jefferson thought the bill was (in whole or in part) unconstitutional. As to question #2: Jefferson signed the bill.

I really don't see how that is any different than what Bush has done, other than that Bush noted his answer to question #1 on paper.
7.17.2006 2:36pm
frankcross (mail):
Ok, Medis, that makes a little more sense and has some historical pedigree. But it ignores the reality that a president may approve of 90% of a bill and disapprove of 10%, perhaps thinking it unconstitutional. Obviously he would want to sign the bill on balance and try to work out the 10% in practice. I doubt that any recent President has concurred in toto with any bill he has signed.

And your argument really defends signing statements. Consider the two possibilities:

1. President signs bill part of which he considers unconstitutional and says nothing

2. President signs bill part of which he considers unconstitutional and says that.

In scenario 2, the Congress can react, either through monitoring or perhaps passing new legislation.
7.17.2006 3:10pm
Medis:
A.S.,

I would give the relevant term--"approval"--its straightforward, common sense, meaning.

I think it is obvious that a President could think that a bill might be unconstitutional, and yet still approve of the bill (whether he should do this is a different matter). I think, in fact, that is exactly what the Louisiana Purchase demonstrates: Jefferson might have thought that the bill was unconstitutional, but he still approved the bill.

If you need a more formal test, I would say one obvious factor is that the President's intention to execute the bill as written at the time he signs it is a necessary condition for the President approving a bill. In other words, if he intends to not execute the bill because he has some objection to doing so, then he cannot be said to approve of the bill as written. Indeed, this would be true regardless of the nature of his objection. Here the President typically is raising a constitutional objection. But if the President said he did not intend to execute the bill as written as a matter of policy, or pure personal whim, then he would still be violating the Presentment Clause by signing the bill rather than returning it.

Again, we can apply this to Jefferson and the Louisiana Purchase. He obviously had the intention to execute the bill as written, and he did so. So, whatever constitutional qualms he might have had, they did not defeat his approval of the bill.

And again, aside from this being exactly what the Presentment Clause states, it also makes perfect sense. If the President actually does not intend to enforce a bill as written, he has no legitimate reason to sign it into law. He should in fact send such a bill back to Congress with his objections, whatever they might be (constitutional, policy, personal whim, etc.). Congress can then decide what they want to do about that situation.

But again, none of this applies to the Louisiana Purchase, because Jefferson actually did intend to execute the bill at the time he signed it, despite whatever reservations he may have had. And also again, regardless of what one might think about a President approving of a law he thinks is unconstitutional, the fact remains that Jefferson did approve of the Louisiana Purchase in this sense.

But President Bush regularly signs bills he does not intend to execute as written. In a perfectly straightforward sense, that means he is signing bills he does not approve of. And that is a violation of the Presentment Clause.
7.17.2006 3:23pm
Ship Erect (mail) (www):
I really don't see how that is any different than what Bush has done, other than that Bush noted his answer to question #1 on paper.

But Jefferson didn't say that the U.S. would still regard the Louisiana territory as belonging to a separate nation after buying it, even if he did think the purchase was unconstitutional. Bush did exactly that: the WH says torture is legal; Congress passed the McCain amendment saying it is not; Bush signs bill into law because he won't veto any bill that crosses his desk; torture is now illegal but Bush says he reserves the right to torture anyway. Is torture against the law or not? Bush is the decider.
7.17.2006 3:28pm
Medis:
frankcross,

If the President intends not to execute the bill as written, then I think his only constitutional option is:

3. He doesn't sign the bill at all, but rather returns it to Congress.

I realize, of course, that Presidents would love to have a line item veto, precisely so that they could extract the parts of bills that they don't like and leave the parts that they do. But as the Supreme Court rightly noted in Clinton v. New York, deciding how to amend a law in that fashion is itself a legislative process, and thus that process is delegated to Congress. And the Presentment Clause simply provides no such option: it allows the President to approve an entire bill and sign it, or disapprove of a bill and return it, but it doesn't allow him to approve some parts of a bill and disapprove other parts, and yet sign the whole thing into law.

So, in that sense the Presentment Clause in part represents a policy decision by the Framers: regardless of the merits of the line item veto, the President has no such option under our Constitution. And again, this is a reasonable decision, in part precisely so that it is Congress which decides how, if at all, to deal with the President's objections to various parts of a bill.

Moreover, I think it also makes sense as a way of protecting the integrity of the law. Aside from wanting to leave bill by bill decisions involving how to craft the law to Congress, it is simply bad for the entire notion of the rule of law to have a proliferation of provisions on the books which the President is refusing to execute. We can't entirely eliminate that problem, as Presidents will change, circumstances will change, Supreme Court doctrine will change, and so on. But insofar as the President knows in advance that a bill contains provisions that he will refuse to enforce, his signing of such a bill unnecessarily furthers this proliferation, and thus unnecessarily weakens the rule of law.

Again, though, these decisions have already been written into the Constitution, so in some sense we do not need to reconsider them. But I do think they make sense.
7.17.2006 3:38pm
Just an Observer:
Returning to the claim by Ramesh Ponnuru above to the effect that the President retains the right to defy a holding of Supreme Court because he is not bound by their constitutional judgment, I note that Ponnuru is not alone.

There is a rather radical revisionist school, with scattered toeholds in academia and certain polemic advocacy groups -- that advances similar views. But fortunately for the Republic, that view has no adherents among mainstream conservatives on the Supreme Court. All the justices adhere to the principle of judicial supremacy, well established in a long line of cases rooted in Marbury.

Chief Justice Rehnquist, writing for the court in UNITED STATES v. MORRISON (joined by Justices O’Connor, Scalia, Kennedy, and Thomas) included this in a clear footnote:

Departing from their parliamentary past, the Framers adopted a written Constitution that further divided authority at the federal level so that the Constitution's provisions would not be defined solely by the political branches nor the scope of legislative power limited only by public opinion and the legislature's self-restraint. See, e.g., Marbury v. Madison, 1 Cranch 137, 176 (1803) (Marshall, C. J.) ("The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written"). It is thus a " 'permanent and indispensable feature of our constitutional system' " that " 'the federal judiciary is supreme in the exposition of the law of the Constitution.' " Miller v. Johnson, 515 U.S. 900, 922—923 (1995) (quoting Cooper v. Aaron, 358 U.S. 1, 18 (1958)). No doubt the political branches have a role in interpreting and applying the Constitution, but ever since Marbury this Court has remained the ultimate expositor of the constitutional text. As we emphasized in United States v. Nixon, 418 U.S. 683 (1974), "[I]n the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others… . Many decisions of this Court, however, have unequivocally reaffirmed the holding of Marbury … that '[i]t is emphatically the province and duty of the judicial department to say what the law is.' " [My emphasis]

Since Morrison, of course, Rehnquist and O'Connor have been replaced by Roberts and Alito, each of whom in their confirmation hearings unreservedly endorsed the principle of judicial supremacy in interpreting the Constitution. That the remaining four "liberals" on the court also support this principle almost goes without saying. It's a 9-0 no-brainer.

So insofar as we care about real law rather than some academic argument, Ponnuru's proposition in this debate is just silly. He is that far outside the mainstream. (If he gets on the court, I will worry.) There is no prospect whatsoever that the Supreme Court is going to reverse course on this bedrock principle, jettisoning 200 years of accumulated jurisprudence.

Of course the debate can turn ugly, when some extreme adherents to the theory remind us that the executive branch has all the guns and bayonets.

And I would feel a little more reassured if, after losing a big one such as Hamdan, President Bush would say something more reassuring than that "I am willing to abide by the ruling of the Supreme Court."
7.17.2006 4:48pm
A.S.:
I would give the relevant term—"approval"—its straightforward, common sense, meaning.

[...]

If you need a more formal test, I would say one obvious factor is that the President's intention to execute the bill as written at the time he signs it is a necessary condition for the President approving a bill.


That's not the "straightforward, common sense, meaning" of the word approve at all. It is a rather convoluted meaning. Let's take a look at the "straightforward, common sense, meaning":

approve
Main Entry: ap·prove
Pronunciation: &-'prüv
Function: verb
Inflected Form(s): ap·proved; ap·prov·ing
Etymology: Middle English, from Anglo-French apruer, approver, from Latin approbare, from ad- + probare to prove — more at PROVE
transitive verb
1 obsolete : PROVE, ATTEST
2 : to have or express a favorable opinion of 'couldn't approve such conduct'
3 a : to accept as satisfactory 'hopes she will approve the date of the meeting' b : to give formal or official sanction to : RATIFY 'Congress approved the proposed budget'
intransitive verb : to take a favorable view 'doesn't approve of fighting'

http://www.m-w.com/dictionary/approve

Here's Black's: "Approve. To be satisfied with; to confirm, ratify, sanction, or consent to some act or thing done by another. To sanction officially; to ratify; to confirm; to pronounce good; think or judge well of; admit the propriety or excellence of; be pleased with. Distinguishable from "authorize," meaning to permit a thing to be done in future."

To me, the "straightforward, common sense, meaning" of the word "approve" in this context is "ratify". It has nothing to do with one's intent to execute the bill exactly as written at the time he signs. Indeed, as Dellinger notes, this has never been the case - going all the way back to Andrew Jackson (if not, for that reason, Thomas Jefferson).

I'm curious - do you have any authority for your assertion that the word "approve", as set forth in the Presentment Clause, means "has an intention to execute the bill as written"?
7.17.2006 5:56pm
Medis:
A.S.,

As an aside, to my knowledge this issue has never been directly litigated, and it may never be (standing would be a trick). If you are looking for direct authority in that sense, aside from the text itself, then I don't have any. But I have noted Clinton v. New York, and I would suggest that is good indirect authority for my reading. Indeed, when you combine Clinton v. New York with Dellinger's own claim that this sort of signing statement is in effect a line item veto, you get a version of my argument.

Anyway, I don't see how your definitions hurt me. Perhaps we should go back to the text:

"Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it."

OK, so we can eliminate your selection of "ratify" right away. It makes no sense if substituted--"if he ratify he shall sign it, but if not he shall return it" is nonsense. In other words, the signing itself is the act of ratifying the bill, so it would make no sense for the Constitution to provide that ratifying the bill was a condition precedent for ratifying the bill.

But many of the other possibilities in your definitions work just fine. In particular:

"if he have a favorable opinion he shall sign it . . ."

or

"if he take a favorable view he shall sign it . . ."

And my basic point is that it makes no sense to claim that the President approves of a bill which he does not intend to enforce. These definitions support the same conclusion--he can't be said to have a favorable opinion or view of the bill if he intends not to enforce it, nor can he be said to be satisfied with it, and so on.

Finally, we get a little more help from the rest of the clause. The remainder of the clause assumes that if the President does not approve, he must have some objections. So, implicitly, approval must be something like the negation of objections, and indeed the definitions I noted, but not "ratify", would accord with this implication.

Honestly, though, it seems to me that you are just playing word games. If you sincerely think that the signing statement I quoted above is anything but an expression of disapproval of the bill as written, then I guess we don't have much to say to each other.
7.17.2006 6:32pm
fred:
Didn't anyone note that the Supreme Court, in the Hamdan Case, gave ZERO effect to the President's signing statement on the DTA? This whole attempt to portray signing statements as some sort of attempt to become King is silly. He can say what he wants in those statements, but no court is going to give them any legal effect, whatsoever.

In most cases, all he is saying is that, to the extent Congress has gone beyond their constitutional authority, he is not going along for the ride. If he thinks they did go too far, he has to go to the courts, and the courts will make the decision. (And if he refuses to do what Congress says, they will soon be able to sue him for it. Specter said the other day that they were going to soon pass a law to give Congress standing to sue the President over this).

It is pretty simplistic to think that every bit of legislation Congress passes is entirely constitutional and the President may not even remark on the matter - and if he does, he is trying to be a King.

And by the way - for all you "Bush is trying to be King" folks, did you notice that the Supreme Court decided to ignore the clear meaning of the Detainee Treatment Act that Congress passed? They should not have heard the Hamdan case, and Scalia's dissent shows that they decided to go through some pretty elaborate gyrations in order to hear it. The law as written was pretty clear. But the court decided they needed to go into the legislative history to divine the meaning of the law. And then they cite the statements made by OPPONENTS of the amendment. And they cite only Democrats.

Scalia confined his dissent to the misuse of legislative history. I thought that was a bit odd, but then I realized - the only part of the case that will matter in a few years is the part about how legislative history is used (The Congress will soon pass legislation letting Bush do pretty much what he was doing before in regards to military commissions)

So here, the Court ignores what Congress plainly says in the statute, but they are not considered to be attempting to be KING. (I know, the Court makes the case that the DTA is not clear, but their argument is not persuasive. They look like they are working overtime to knock out legislation that they don't like. Making negative inferences where none need to be made, etc. )
7.17.2006 6:46pm
PersonFromPorlock:
Just an Observer:

I remain thunderingly unimpressed with Court cites of its own prior claims of supremacy over the other branches. Self-seeking circular reasoning is not hallowed by repetition.

The Founders meant for the various branches, at the extreme, to be able to forestall one another on an issue until the voters could resolve the matter. It's easy to forget, in an era of 'professional' government, that 'the people' were meant to be players.
7.17.2006 6:57pm
Medis:
fred,

It may well be in the future that Congress, or others, will get standing to sue over a number of claims that the President has made in his signing statements. But it simply isn't the case that "If he thinks they did go too far, he has to go to the courts, and the courts will make the decision." As, in fact, this President has frequently shown.

Incidentally, if the President thinks a bill goes too far, why is he signing it but then not executing it? What legitimate and constitutional reason could he have for doing that?
7.17.2006 7:10pm
Just an Observer:
PersonFromPorlock,

Good thing for the Republic that impressing you is not required for anything!

You may believe what you wish, of course. My point is that your opinion is so far on the fringe of real law in real courts that it is just not a factor.
7.17.2006 7:12pm
Medis:
PFP,

OK, but if the President doesn't even have to listen to the Supreme Court on issues of law, exactly how can the Court forestall the President at all?
7.17.2006 7:12pm
jalrin (mail):
This is 2006, not 1687. The right of the Executive to nullify laws by witholding enforcement went out with the Glorious Revolution. Signing statements do not allow for this any more than any other tactic would. If he does not like proposed legislation, that is what the veto is for.
7.17.2006 7:17pm
frankcross (mail):
Porlock, what were your thoughts on the historical analysis of the Prakash and Yoo article?
7.17.2006 7:58pm
A.S.:
OK, so we can eliminate your selection of "ratify" right away. It makes no sense if substituted--"if he ratify he shall sign it, but if not he shall return it" is nonsense. In other words, the signing itself is the act of ratifying the bill, so it would make no sense for the Constitution to provide that ratifying the bill was a condition precedent for ratifying the bill.

I don't agree. It seems to me that ratify is the perfect word there. What the Clause is saying is that all the President must do to ratify the bill is sign it - there are no other requirements. That is, signing is the method by which a President approves - ratifies - a bill.

Your interpretation requires the President to take two separate actions - (i) approval and (ii) signing/ratification. I don't think the Clause meant for there to be two separate actions; rather I think it is one action and the means by which that action is accomplished.
7.17.2006 8:06pm
A.S.:
But I have noted Clinton v. New York, and I would suggest that is good indirect authority for my reading. Indeed, when you combine Clinton v. New York with Dellinger's own claim that this sort of signing statement is in effect a line item veto, you get a version of my argument.

Oh, as to this, I don't see it either - Clinton v New York doesn't seem to me to have anything to do with what the word "approve" means in the Presentment clause.

I would grant that to the extent a signing statement is a line item veto, Clinton v New York could undermine its validity. However, that it has the same substantive effect as a line item veto doesn't make it a line item veto - just the same as the proposed legislative line item veto (which, it is claimed, at least, doesn't run afoul of the same Constitutional concerns as those that killed the line item veto in Clinton v. New York). There is more than one way to skin a cat. That one of those ways is unconstitutional doesn't make them all unconstitutional.
7.17.2006 8:12pm
Medis:
A.S.,

You say: "Your interpretation requires the President to take two separate actions - (i) approval and (ii) signing/ratification. I don't think the Clause meant for there to be two separate actions; rather I think it is one action and the means by which that action is accomplished."

No, my interpretation simply tracks the actual language of the clause. There aren't two "actions"--there is a condition precedent, and then an appropriate action. Again, this is how the clause is actually structured ("if X, then the President shall do Y"). Your interpretation ("in order to do X, the President shall do Y") does not in fact track the actual language of the clause.

But seriously, it seems to me you are just playing word games. If you are seriously trying to read the Presentment Clause, I apologize for this statement, but it strikes me that you are not.

On Clinton v. New York--here is the most relevant passage. I think it will be clear why I think it supports my reading of the Presentment Clause, but I have capitalized some relevant parts:

"In both legal AND PRACTICAL EFFECT, the President has amended two Acts of Congress by REPEALING A PORTION of each. '[R]epeal of statutes, no less than enactment, must conform with Art. I.' INS v. Chadha, 462 U.S. 919, 954 (1983). There is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes. Both Article I and Article II assign responsibilities to the President that directly relate to the lawmaking process, but neither addresses the issue presented by these cases. The President 'shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient . . . .' Art. II, §3. Thus, he may initiate and influence legislative proposals. Moreover, after a bill has passed both Houses of Congress, but 'before it become[s] a Law,' it must be presented to the President. If he approves it, 'he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.' Art. I, §7, cl. 2. His 'return' of a bill, which is usually described as a 'veto,' is subject to being overridden by a two-thirds vote in each House.

There are important differences between the President’s 'return' of a bill pursuant to Article I, §7, and the exercise of the President’s cancellation authority pursuant to the Line Item Veto Act. The constitutional return takes place before the bill becomes law; the statutory cancellation occurs after the bill becomes law. THE CONSTITUTIONAL RETURN IS OF THE ENTIRE BILL; THE STATUTORY CANCELLATION IS OF ONLY A PART. Although the Constitution expressly authorizes the President to play a role in the process of enacting statutes, it is silent on the subject of unilateral Presidential action that EITHER REPEALS OR AMENDS PARTS of duly enacted statutes.

There are powerful reasons for construing constitutional silence on this profoundly important issue as equivalent to an express prohibition. The procedures governing the enactment of statutes set forth in the text of Article I were the product of the great debates and compromises that produced the Constitution itself. Familiar historical materials provide abundant support for the conclusion that the power to enact statutes may only 'be exercised in accord with a single, finely wrought and exhaustively considered, procedure.' Chadha, 462 U.S., at 951. OUR FIRST PRESIDENT UNDERSTOOD THE TEXT OF THE PRESENTMENT CLAUSE AS REQUIRING THAT HE EITHER 'APPROVE ALL THE PARTS OF A BILL, OR REJECT IT IN TOTO.' What has emerged in these cases from the President’s exercise of his statutory cancellation powers, however, are TRUNCATED VERSIONS OF TWO BILLS THAT PASSED BOTH HOUSES OF CONGRESS. They are not the product of the 'finely wrought' procedure that the Framers designed."

Again, this is not the precise same issue. But the Court's reading of the Presentment Clause, and its exclusivity, tracks my own.
7.17.2006 10:19pm
Medis:
Sorry--I should have capitalized "UNILATERAL PRESIDENTIAL ACTION THAT . . . ." in the second to last paragraph of that passage.
7.17.2006 10:21pm
srp (mail):
Medis supposes that the President's mental state or intention at the time of signing of the bill is critical to the constitutionality of his actions. As such, he objects not to the signing statement itself but rather to the President's alleged faithlessness, which the statement merely reveals. Even if there were no statement flagging his intentions, the President, on this view, would be just as much in violation in signing a bill he did not intend to fully enforce. (This seems different from Epstein's argument, by the way.)

But Constitutional law has never, to my knowledge, used that kind of reasoning. Unlike in the criminal law, there is no room for concepts like "premeditation" in defining the powers of the various parties. States of mind are simply irrelevant in deciding the powers of the President (or Congress). Hence, it doesn't matter if a judge truly believes that the precedent he employs is truly faithful to the Constitution; he may follow that precedent without violating his oath of office. It is not unconstitutional for Congress members to vote for bills they privately regard as unconstitutional.

Textually, saying that I "approve" of something means that I approve of it ON BALANCE, not that I think every jot and tittle is kosher. I approve of our Iraq policy on balance, but I don't approve of many specific decisions that were made pursuant to it, and I would not continue those if I were President. It's still reasonable to say that I approve of the policy.

If Presidents refused to sign all bills with which they disagreed in part, or intended not to fully enforce, no bills would ever become law except those passed over the veto. If nothing else, for example, the executive has inherent discretion to allocate law-enforcement resources among types of cases unless specifically funded by Congress, and so the President can decide not to try very hard in chasing down certain forms of law-breaking.

It cannot be construed as faithlessness to the Presentment Clause when this garden-variety behavior presidential behavior is formalized through signing statements. I agree that we would all be better off if Congress would take more responsibility for tough decisions and if the President would veto more bad stuff. On political and policy grounds, I agree that Bush should have vetoed, for example, McCain-Feingold if he believed it unconstitutional (as he said during his 2000 campaign). But I don't often get my way on policy, and I'm unwilling to inflate my disappointment into presidential violations of the separation of powers.
7.17.2006 10:56pm
Medis:
srp,

But criminal laws generally do not impose affirmative prosecutorial duties, and hence the exercise of prosecutorial discretion does not require a Presidential refusal to enact the laws as written--and indeed, the President does not issue signing statements to that effect. In contrast, the President most frequently objects to provisions which impose affirmative duties on Executive Branch officials, or which expressly limit his discretion. In those cases, the President is quite clearly objecting to execute the plain terms of the law.

Finally, I think I have already made it clear that it is not the President's private thoughts that matter. Rather, it is the intention not to execute the bill as written. And it is the practical effect--which is equivalent to a line item veto, as Dellinger also noted--which is the problem.
7.17.2006 11:17pm
frankcross (mail):
And I think that we are better off with the president signing a bill that, say, bans torture and simultaneously has an intent to manipulate the bill, subject to constitutional checks, than if the president vetoes the bill.

Moreover, intention is a fuzzy thing. It may well be that the circumstances that might cause the President to ignore the bill never arise. In which case, requiring a veto would be pretty silly.
7.18.2006 12:07am
Medis:
frankcross,

I don't think we are better off in that scenario. More importantly, I don't think we are better off in a scenario where the President doesn't have to face the consequences of vetoing a bill because he can do what you suggest instead. But most importantly, the Constitution has taken a stand on this issue.

By the way, intention is not always fuzzy. The President is quite clear in many of these signing statements exactly what he intends to do.

In any event, I think even your "fuzzy" scenario is a poor outcome for the rule of law. We are supposed to be able to rely on the laws on the books. In your "fuzzy" scenario, we don't really know whether and when the laws will be enforced. And the President had the opportunity to resolve these uncertainties, and yet he did not.

And I still haven't heard a legitimate reason for the President to create such uncertainty under the law.
7.18.2006 12:40am
Medis:
I think this conversation has gotten repetitive, so to sum up:

I'm actually somewhat amazed that people are willing to defend a practice in which the President is knowingly signing provisions into law which he does not intend to execute. I also think it is clearly prohibited by the Constitution, but it seems like an awfully bad idea in any event.
7.18.2006 12:49am
anonyomousss (mail):
aside from the more general issue of whether it's proper for the prez to sign a bill he intends to violate, whether because of its purported unconstitutionality or for some other reason, there hasn't been much discussion of the real reason this is so problematic. the president's "interpretations" are based on an espeically radical, and extremely dangerous, unitary executive theory with virtually no support in the constitution or precedent. we do not have a unitary executive in this country, and it's a good thing too. can you imagine what a disaster it would be if the President had direct control over the interest rate?
7.18.2006 12:17pm
srp (mail):
Medis: You try to make a distinction between intentions and private thoughts that simply escapes me. If it is the public statement of misgivings, rather than the misgivings themselves, that bothers you, then your problem is not with the President's disapproval of what he signs but rather his candor. If your objection is to his signing despite reservations, then whether or not a signing statement is attached is irrelevant.
7.18.2006 1:46pm
Just an Observer:
anonyomousss,

Your comments about the "unitary executive" raise issues of what in the world that phrase is supposed to mean, especially in the context of signing statements. There actually are competing definitions. See Jack Balkin's post today, and my own comments (as "JaO") attached to it.

See also Orin Kerr's recent post and associated comments touching upon that question.

Another interesting post at that site is not about the "unitary executive," but about a qualitative difference in the way signing statements are used by President Bush.
7.18.2006 5:18pm
anonyomousss (mail):
JaO - fair enough, and thanks for the links.
7.18.2006 6:24pm