- The Washington Times - Monday, July 31, 2006

Presidential signing statements that declare an intention to disregard provisions of a bill passed by Congress that the president has signed into law because he believes them to be unconstitutional constitute great usurpations of the power to legislate. They flout the language and original intent of the Presentment Clause, Article I, section 7, clause 2; and, the president’s obligation under Article II, section 3, to “take Care that the Laws be faithfully executed.”

The practice circumvents Congress’ power to override a veto, and results in enforcement of laws Congress did not pass. And longevity does not establish constitutionality, just as the 50-year history of legislative vetoes did not prevent their invalidation by the Supreme Court as unconstitutional encroachments on the president’s law enforcement domain in INS v. Chadha (1983).

The Presentment Clause unambiguously confines the president to either signing or vetoing a bill in its entirely after passage by the House and Senate: “If he approve he shall sign [the Bill], 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.” President George Washington, who also presided over the Constitutional Convention, understood the clause as requiring he either “approve all the parts of a Bill, or reject it in toto.” The Supreme Court affirmed that understanding when it held a line-item veto statute unconstitutional in Clinton v. New York (1998).

The Founding Fathers anticipated passage of bills that might encroach on the constitutional powers of the president or otherwise transgress the Constitution. As Alexander Hamilton elaborated in the Federalist Papers, the president was armed with a qualified veto as a first line of defense. Indeed, the presidential oath enshrined in Article II, section 1, clause 7 obligating the president to “defend the Constitution of the United States” would seem to require the veto of a bill the president believes is unconstitutional in whole or in part.

If a constitutionally based veto is overridden by Congress, the executive branch may decline to defend the law in litigation, and leave that task to the legislature. In United States v. Lovett (1946), for instance, President Franklin D. Roosevelt instructed the attorney general to side with the plaintiffs in litigation claiming a statute prohibiting their compensation as government employees because they were deemed “subversive” was an unconstitutional bill of attainder. Congress appointed a special counsel to defend the law. Ultimately, the Supreme Court rebuffed Congress and sustained Roosevelt.

In contrast to vetoing a bill thought to be unconstitutional, the Founding Fathers balked at the idea the president could both sign a bill he believed was constitutionally infirm and then declare his intent to suspend or dispense with the law he had signed without the opportunity for a congressional override.

The constitutional obligation of the president to “take Care that the laws be faithfully executed” was inspired by the English Bill of Rights of 1688. It declared, “That the pretended power of suspending of laws or the execution of laws by regal authority without consent of Parliament is illegal.”

In United States v. Smith (1806), defendants claimed a right to violate the Neutrality Act because their conduct had been allegedly authorized by the president. The government countered: “Among the powers and duties of the president… he is expressly required to ‘take care that the laws be faithfully executed.’ They will not venture to contend that this clause gives the president the right of dispensing with the law…. He has a qualified veto, before the law passes…. When it has become law… it is his duty to take care that it be faithfully executed. He cannot suspend its operation, dispense with its application, or prevent its effect, otherwise than by the exercise of [his] constitutional power of pardoning, after conviction. If he could do so, he could repeal the law, and would invade the province assigned to the legislature, and become paramount to the other branches of government.”

In 1969, future Chief Justice William H. Rehnquist, then assistant attorney general for the Office of Legal Counsel, advised: “It is our view extremely difficult to formulate a constitutional theory to justify a refusal by the president to comply with a congressional directive to spend…. [T]he execution of any law is, by definition, an executive function, and it seems an anomalous proposition that because the Executive Branch is bound to execute the laws, it is free to decline to execute them.”

Signing statement proponents insist the president’s obligation to defend the Constitution requires him to refuse to enforce laws he believes are unconstitutional. But the obligation to defend is initially triggered when the president is presented with a bill to sign or veto. The proponents are unable to square their theory of constitutional defense with their claim the president is nevertheless empowered to sign bills he believes are unconstitutional.

In 217 years, only 27 vetoes motivated by constitutional scruples were overridden. In only one case did the president balk at enforcement — the Tenure of Office Act of 1867. In any event, a president could easily concoct a constitutional excuse to decline enforcement of any law he deplored, and thus transform his qualified veto into a constitutionally prohibited absolute veto through signing statements.

They would be less alarming if the president were a reliable interpreter of his own constitutional powers. But in contrast to the independent and disinterested Supreme Court, the president is a judge in his own case in issuing signing statements. He is also preoccupied with partisan politics. He invariably rules for himself and for party interests heedless of principle. That is why the Constitution does not mean whatever the president says it means, and why signing statements are indefensible.

Bruce Fein was a member of the American Bar Association Task Force on Presidential Signing Statements and assisted Sen. Arlen Specter in drafting a bill to enable Congress to sue the president over signing statement disputes.

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