MB Civic

By Curtis Bradley and Eric Posner | August 3, 2006 | The Boston Globe

LAST WEEK, an American Bar Association Task Force issued a head-scratching report, which concluded that “the issuance of presidential signing statements that claim the authority or state the intention to disregard or decline to enforce all or part of a law the president has signed” is “contrary to the rule of law and our constitutional system of separation of powers.” That this conclusion is false is well known to constitutional law scholars and, one assumes, to the current and former law school deans on the task force.

For decades presidents have used signing statements to express constitutional objections to specific provisions in bills that bear their signatures. Signing statements typically argue that although a bill is in the public interest, specific provisions violate the president’s commander-in-chief power, his authority over appointments, his control over foreign relations, his supervision of subordinates in the executive branch, or his ability to maintain secrecy for national security. The type of argument made in the signing statements has changed little over the years. The constitutional arguments made in President Bush’s signing statements are similar — indeed, often almost identical in wording — to those made in Bill Clinton’s statements.

The task force did not say that the constitutional arguments advanced in the signing statements of Bush, Clinton, and other presidents are wrong. It also did not say that Bush, Clinton, or others actually followed through on their threats in signing statements and refused to enforce laws that they thought were unconstitutional.

Instead, the task force argued, in just two pages of the 34-page report, that issuing signing statements violates the separation of powers because the president has a legal duty to enforce unconstitutional laws. The task force said that when the president uses a signing statement to declare that he will not enforce part of a bill, he is essentially exercising a line-item veto — rejecting part of the bill rather than the whole.

But a signing statement is not a line-item veto. A line-item veto nullifies provisions in a bill, so they have no legal effect. The signing statement does not nullify part of a bill; provisions rejected by the president remain enforceable in court. Courts always respect valid vetoes; they virtually never pay attention to signing statements.

The task force disapproved of nonenforcement of unconstitutional laws without providing a clear argument or drawing out the implications of its position, which is that not just Bush but many presidents have violated “the rule of law” and “the principle of separation of powers.” If this is the task force’s view, its focus on Bush is unjustified; what it is arguing for is a major adjustment of constitutional understandings. Yet it does not discuss or acknowledge the controversy and the arguments on the other side.

If the task force is not rejecting the view that the president can disregard unconstitutional legislation, then its argument against Bush amounts to the claim that although he has the authority to avoid enforcing unconstitutional laws, he cannot say so in a signing statement, as though he were some kind of enchanted frog prince in a fairy tale.

It is true that Bush has challenged more statutory provisions than his predecessors have, but whether he has been justified in doing so depends on whether his constitutional arguments are valid.

It may be that Bush has simply applied the same theories that other presidents have, but has done so more systematically. It may be that Bush has expanded those theories on the margin but that these expansions are justified under the proper reading of the Constitution or in light of changed circumstances. These are important questions that the Bar Association Task Force has ignored in its eagerness to jump on the antisigning statement bandwagon, which targets a useful device through which the president can announce his views in advance rather than conceal them until it is time for litigation.

Curtis Bradley is a professor at Duke University School of Law. Eric Posner is a professor at the University of Chicago Law School.