[Update: This is the same post as earlier but it got pushed down the page with the discussion of the Leiter poll on veganism, so I'm pushing it back up.]
Last week, Charlie Savage reported in the NY Times that the Obama Administration is using signing statements in more or less the same way that the Bush Administration did: To declare its intention not to enforce or abide by what the Administration considers to be unconstitutional provisions of Acts of Congress.
Is the charge of equivalence fair? Perhaps not. As Savage notes, Walter Dellinger, who was responsible for President Clinton's policy on signing statements, has taken the position that mostly what Bush did wrong was to invoke very bad constitutional objections. Even during the Bush years, Dellinger and others, some of whom now serve in the Obama Administration, defended the notion that the President could judiciously use signing statements to signal his intention not to enforce or to comply with truly unconstitutional legal provisions. Indeed, where a President does intend non-enforcement or non-compliance, they explained in their 2006 memo that signing statements signaling that intention promote transparency.
I have great respect for the authors of the 2006 defense-in-principle of signing statements, although I am skeptical of some of their conclusions. I ultimately agree with their claim that a President is not constitutionally obligated to veto an entire omnibus bill that is generally valid because it contains one provision that is unconstitutional--although I regard the matter as not entirely free from doubt: In the early Republic, Presidents often considered themselves obligated to veto bills they regarded as invalid but bills tended to be simpler then, so that vetoing them in their entirety was a realistic option. Does the emergence of omnibus legislation justify signing with caveats? I think so, although one could conclude that the real problem (for all sorts of reasons) is the omnibus legislation itself. And it's worth noting that the Supreme Court has squarely rejected the idea that the President has or can be given a line-item veto as a response to omnibus legislation.
I also agree with the authors of the 2006 memo that where a law is clearly unconstitutional under operative Supreme Court doctrine, Presidential non-enforcement is warranted. They also say that "the President should typically act in a way that promotes judicial resolution of the constitutional dispute between the political branches. The option of enforcement and then a refusal to defend should always be carefully considered as a default rule."
But that option will often be unavailable in the most interesting cases, because there is no serious likelihood of the constitutionality of the contested provision coming before a court. The chief example in the Savage article is illustrative: Congress passed "a bill that expanded assistance to the International Monetary Fund and the World Bank while requiring the administration to pressure the organizations to adopt certain policies. [President] Obama said he could disregard the negotiation instructions under his power to conduct foreign relations." Here we have a case of the President asserting the right not to comply with a statutory provision, rather than asserting the right or duty not to enforce a statutory provision. It is hard to see how anyone would have standing in court to argue that the President has gotten it wrong.
The 2006 memo also elides a crucial question about judicial exclusivity in constitutional interpretation. In arguing that the President ought, as a general matter, make judicial resolution of constitutional issues possible by, for example, enforcing then not defending statutes, the memo's authors appear to suggest that the President will then accept the judgment of the courts. But if so, then their repeated praise for President Jefferson's decision not to enforce the Sedition Act is puzzling. They ask rhetorically: "Should Jefferson really have permitted sedition prosecutions to continue?" Well, if Jefferson had followed what they regard as the "typical" approach--enforcement then non-defense--he would almost certainly have been told by the Federalist-dominated courts that the Sedition Act was constitutionally valid. What then? Should he have then refused to enforce the Sedition Act anyway? And if so, what was the point of submitting the issue for judicial resolution in the first place?
The most outrageous of the Bush signing statements asserted Presidential powers that would very likely have been rejected even by the Rehnquist and Roberts Courts. But does that make these propositions "false" in a non-political sense? President Clinton once asserted the power not to defend a provision of a military spending bill that required the discharge of HIV-positive service members, claiming that the provision denied equal protection. Yet it is pretty clear that given the courts' deference to the political branches in military matters and legal doctrine holding disability not to be a suspect classification, the provision was probably constitutionally valid as far as the courts were concerned.
At the time, I nonetheless thought that Clinton did the right thing, and so do the key legal actors now in the Obama Administration. But the experience of the Bush Administration showed that allowing the President to assert the unconstitutionality of legal provisions the courts would uphold can lead to serious abuse. The Obama lawyers want to say that the current situation is different because they're right about the Constitution whereas the Bush Administration was wrong. However, where the measure of correctness is not a court decision, it's not clear how they can persuasively make that claim in the court of public opinion.
I would thus conclude with two observations:
1) Here, as elsewhere, Bush Administration overreaching may have weakened the Presidency.
2) The Obama legal team still does not seem to have fully grasped how what they regard as important but subtle distinctions between Obama policies and Bush policies--e.g., "prolonged" detention versus "indefinite" detention; an independent Presidential power of constitutional interpretation to reach "correct" results but not "incorrect" results even where there is no final arbiter of correctness--are, in the public mind, and with some justification, overwhelmed by the larger similarities.
Posted by Mike Dorf