Earlier this week, an ABA panel issued a report (available through this link) that sharply criticized the Bush administration’s use of “signing statements.” The signing statement is a device that has been used off-and-on throughout most of our history, and frequently by President Clinton, whereby the president when signing a bill into law puts his gloss on the legislation. That gloss might include the president’s understanding of what he is signing. It might also include a statement that certain aspects of the legislation are unconstitutional and will not be enforced.
The ABA touted the 10-member panel as bipartisan and inclusive of conservatives. But the only conservative legal scholar on the panel was Bruce Fein. Although Fein is a conservative, he is an iconoclastic one, to say the least, and his views on the limits of executive power differ fundamentally from those of most conservatives. Indeed, he was known at the time of his selection by liberal ABA president Michael Greco to be a critic of signing statements. Fein’s selection in these circumstances was a cynical act, analogous to selecting, say, George Will to a committee to study the war in Iraq. Will is a conservative and his views are well worth considering. But his selection in my hypothetical to be the lone conservative intellectual on a committee about Iraq would be evidence not of bipartisanship or ideological inclusiveness, but rather of an attempt to stack the deck in order to obtain a pre-determined result. That is what the ABA did here. That’s no surprise, though — the ABA has become a liberal special interest group, and a particularly underhanded one at that.
What about the merits of the signing statement issue? I think one needs to keep in mind that the president has a sworn duty to uphold the U.S. Constitution. This means that he must form opinions about what the Constitution means and act upon those opinions. The view I’m articulating is neither a radical nor a conservative view. I learned it from the late, great constitutional law scholar Gerald Gunther, who was neither radical nor conservative. And, as I said earlier, the Clinton adminstration recognized the president’s duty to defend the Constitution on the many occasions when it used signing statements.
This view does not deprive the Supreme Court of the final say on matters of constitutional interpretation. Once the Supreme Court upholds the constitutionality of an enactment, it is the president’s duty, in my opinion, to enforce that law. But in the absence of a Supreme Court decision, I believe that the president can and should refuse to enforce laws he considers unconstitutional and, in the interest of candor, should state that intention in advance. Doing so does not violate his duty to take care that the laws be fully executed because, as Ed Whelan points out, the Constitution is one of the laws (indeed, the supreme one) that the president must take care fully to execute.
The president does, however, have to power to veto legislation, and I agree with those who say that using that power (not a signing statement) ordinarily is the proper way for the president to defend the Constitution from legislation he thinks is clearly unconstitutional. A signing statement might well be the better response in the case where Congress passes legislation the enactment of which cannot wait, even though it has an unconstitutional provision. But absent special circumstances, the best course is to use the veto power. If Congress overrides the veto, however, the president is back to square one and, if he considers the legislation unconstitutional, he has the right to so state and to instruct the executive branch accordingly.
Signing statements also can be used when Congress passes legislation that the president believes is constitutional if construed one way but unconstitutional if construed another. Here, it is proper for the president, rather than vetoing the legislation, to construe it in the “constitutional” way, and to explain what he is doing. This course is similar to the Supreme Court’s practice of construing laws in ways that make them consistent with the Constitution, and upholding them on that basis. When reviewing a statute which the president signed into law only after construing it through a signing statement, the Supreme Court can consider the president’s construction of the law for what it thinks it’s worth.