Ethics & Public Policy Center

Shut Up, They Explained

Published in The Weekly Standard (Volume 011, Issue 44 ) on



Captured for the past two decades by the left, the American Bar Association leverages its clout as a professional services group for lawyers in support of an array of liberal causes. Its special task force on presidential signing statements — which last week accused President Bush of undermining the rule of law and the separation of powers — provides a revealing case study of the politicization of the ABA.

Presidents as far back as Andrew Jackson in 1830 have used signing statements “to raise and address the legal or constitutional questions they believed were presented by the legislation they were signing.” That’s what Walter Dellinger, the liberal law professor who was appointed by President Clinton to head the Justice Department’s Office of Legal Counsel, explained in a 1993 OLC opinion. Such statements, Dellinger concluded, are an entirely proper means of resolving the dilemma a president faces when a bill that he regards as desirable also contains one or more provisions that he believes to be unconstitutional or suspect. Dellinger rejected an alternative view–that the president’s duty in such instances is to veto the bill.

In early June, left-wing ABA president Michael Greco declared that President Bush’s “practice of attaching signing statements to laws squarely presents a constitutional issue about the separation of powers among the three branches.” Greco announced the creation of a “nonpartisan” task force to examine the issue–and promptly stacked it with fervent opponents of President Bush, including three Republicans who had already criticized President Bush’s use of signing statements. Notably, Greco did not invite Dellinger (or any of his OLC attorneys now in academia) to take part. Greco also lambasted President Bush for “acting like a king.”

The substance of the constitutional positions that President Bush has taken in his signing statements is a fair matter for debate, and it would have been no surprise if the rigged task force had vigorously contested some of those positions. But instead, in what Dellinger described to me in an email as a “fundamental misdiagnosis,” the task force adopted an extremist and highly idiosyncratic stance absolutely opposing a president’s use of signing statements to state his constitutional objections to provisions in laws that he is signing. According to the task force, a president’s constitutional obligation is to veto any bill that has any provision he believes is unconstitutional.

That position is wrong and unworkable. The task force imagines that the president’s constitutional duty to “take Care that the Laws be faithfully executed” requires him to enforce provisions of a law that he regards as unconstitutional–“unless and until they are held unconstitutional by the Supreme Court or a subordinate tribunal.” But the Constitution is first among the “Laws” that the president “shall take Care . . . be faithfully executed.” An unconstitutional provision of a legislative enactment is void, and it is the president’s duty not to enforce provisions that he regards as unconstitutional. (How he ought to form that judgment is a separate question.) It is therefore entirely proper for a president to sign a bill that has some provisions that are constitutional and others that aren’t, for the latter (and any other provisions inseverable from them) should be regarded as though they didn’t exist.

Indeed, the operations of the federal government depend on a president’s acceptance of this practice. The task force posits the “rare possibility” that a president might think it necessary to sign legislation that contains an unconstitutional provision, but it also contends that use of a signing statement is unacceptable even in such a case. Yet such instances are common, not rare. Virtually every appropriations bill, for example, contains a legislative-veto provision–which typically purports to confer on a single house of Congress, or even a single committee, the power to nullify executive-branch action–notwithstanding the fact that the Supreme Court recognized that mechanism to be unconstitutional more than 20 years ago.

There is little reason to believe (and the task force does not argue) that if the president were required to veto any bill with an unconstitutional provision, Congress would stop inserting unconstitutional provisions. It is at least as likely that members of Congress would gamble that inserting such provisions would increase their negotiating leverage, or that they would use such provisions as poison pills for bills they disfavor. In any event, there is plenty of room for the president and Congress to have reasonable disagreements whether certain provisions are unconstitutional. A healthy understanding of separation of powers would recognize that each branch should display a particular concern for its own prerogatives.

The deeper flaw in the task force’s approach is its hyperinflated version of the myth of judicial supremacy. In the ABA’s view, the president is compelled to implement an unconstitutional provision “unless and until” some magistrate somewhere strikes down the provision. The task force misreads Marbury v. Madison as meaning that the judicial branch enjoys a monopoly on constitutional interpretation. But Marbury means only that judges, in exercising their role of deciding cases, may determine whether statutes they are applying comport with the Constitution. Nothing in Marbury remotely suggests that the president, in exercising his separate role of enforcing the laws, should not make a similar determination.

Indeed, the Constitution provides that the president shall swear to “preserve, protect and defend the Constitution”–not simply to administer statutory law. Thus, when properly exercised, a president’s use of signing statements to identify constitutional defects in bills that he signs is a vindication, not a violation, of separation-of-powers principles.

The task force’s mistake rests more broadly on the conceit that because the president is inherently “partisan and interested” and the judiciary is “independent and impartial,” the judiciary should therefore reign supreme over the president. That the president is elected and accountable and swears to uphold the Constitution, that life-tenured judges have amply demonstrated a penchant for overstepping their bounds in pursuit of ideological agendas, and that the Constitution creates a system of coequal branches operating in different realms evidently eluded the task force.

The ABA’s report is, at every level, a shoddy piece of work–poorly reasoned, sloppily written, and displaying a pervasive misunderstanding of how the American constitutional scheme does, and should, work. Critics of the Bush administration should be particularly unhappy with the ABA. First, the members of the task force neglected an opportunity to address the substantive positions in President Bush’s signing statements. They appear foolish when they blindly attack the form in which those positions are set forth.

Second, Greco’s focus on signing statements is myopic. President Bush is charged with administering not only the laws he signs, but also all the laws that continue in effect from before he took office (as well as any that might be enacted in an override of his veto). Moreover, his duty to interpret the laws he signs is ongoing and is not limited to the occasion of the signing statement or constrained by it. Indeed, President Bush could have chosen to issue no signing statements and instead have quietly adopted exactly the same positions in implementing the laws. Would Greco really have preferred that approach?

It is a sorry testament to the state of legal academia today that prominent academics on the task force–including Yale Law School dean Harold Koh, Harvard law professor Charles Ogletree, and Stanford law professor Kathleen Sullivan–would sign off on such a report. Either these academics actually agree with the report or, though disagreeing (or perhaps not having read it with any care), they are willing nonetheless to lend their names and reputations to it. Neither explanation does them any credit.

– Edward Whelan is president of the Ethics and Public Policy Center and a contributor to National Review Online‘s Bench Memos blog. From 2001 to 2004, he served as principal deputy in the Office of Legal Counsel in the Department of Justice.

 

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