Presidential Signing Statements

The ABA Task Force on Presidential Signing Statements and the Separation of Powers Doctrine purports to be standing up for the separation of powers and the rule of law in its stance opposing presidential signing statements. In fact, the ABA task force’s recommendations would controvert the separation of powers, in that they would infringe upon the president’s constitutional right and responsibility to execute the laws.

As chief executive in our constitutional system of government, per Section II of the constitution, it is the president’s responsibility to execute the laws of the United States. Requisite to executing a law is interpreting it. No one can deny that you cannot enforce a law without first determining its meaning. A presidential signing statement is simply a public revelation of that interpretation. Take away presidential signing statements and you ultimately take away nothing. Quoting from the editors of National Review, "presidents will have to interpret statutes, interpret the Constitution, and try to harmonize those interpretations, whether they announce their views in a signing statement or not."

The task force’s primary objection with presidential signing statements is that some of them contain a declaration from the president that he will not enforce a measure or aspect of the law he deems to be unconstitutional. This is, supposedly, "contrary to the rule of law and our constitutional system of separation of powers." The task force advises that if the president deems a law to be unconstitutional he should veto it.

This is nonsense, both in practice and in principle. Does the task force really believe the president should veto every bill in whole if it contains one provision he deems to be unconstitutional? As Ed Whelan has pointed out at Bench Memos, this "position would lead, at best, to an insane game of chicken between the President and Congress and, quite probably, to a collapse of governmental operations."

Such a collapse would be unnecessary. As asserted by Chief Justice Marshall in Marbury, an opinion which the task force cites, "a legislative act contrary to the constitution is not law." Any act of congress contrary to the constitution is automatically voided by its very unconstitutionality. This is true whether or not the president vetoes it or the Supreme Court, or any lower court, declares it to be so.

Moreover, it is within the president’s power to not execute a law regardless of its constitutionality. This is not a contradiction or violation of the separation of powers doctrine, it is intrinsically a hallmark of it. As I just stated, attendant to possessing the power of execution is the right to use one’s own discretion in exercising that power. If, in using that discretion, the president elects not to enforce or execute a law than so be it. His right and possession of the executive power, within the constitutional framework of separate powers, allows him to do so. Just as congress’ sole power to legislate necessarily entails the right not to legislate, so too does the president’s right to execute the law necessarily entail the right not to execute.

This is how it must be if the separate powers system is to survive. For the congress or the judiciary to compel the president to execute a law would be for them to violate the boundaries composing the separation of powers and to usurp the executive powers of the president unto themselves. Compelling the branch which reserves the right to execute to actually execute is, in itself, an exercise of executive power. This is constitutionally intolerable.

How can this even be objected to? If you object to the president asserting his right to exercise discretion in the fulfillment of his duties and the exercise of his powers than you must also assert that the Justice Department, as an administrative agency of the executive branch, must prosecute every crime it believes to have been committed. After all, the decision not to prosecute the violation of law is, in fact, a decision not to execute the law.

Granted, the task force does not directly recommend that the president be compelled by congress or the judiciary to execute the laws. Instead, it recommends the next best thing, urging "Congress to enact legislation requiring the President promptly to submit to Congress an official copy of all signing statements he issues , and in any instance in which he claims the authority, or states the intention, to disregard or decline to enforce all or part of a law he has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress, to submit to Congress a report setting forth in full the reasons and legal basis for the statement."

Much is wrong with this.

One, in a system of co-equal branches with separate powers the congress has no authority or basis to compel the executive to explain why he did or didn’t exercise his executive powers in the manner he did or didn’t. If congress determines that the president exercised his power unlawfully or in contradiction to the constitution then they may impeach. This is the legislative’s check on the executive. Congress has no more right to compel the president to explain or justify the manner in which he exercised his executive power than either congress or the president do to compel the supreme court to justify or explain its decision not to hear a case appealed to it.

Second, the task force’s mention and defense of "the clear intent of Congress" is problematic, both because it is undeterminable and because it wouldn’t be controlling upon the president even if it was.

What would determine congressional intent? A committee report? A floor speech? There are five-hundred and thirty-five members in two houses of congress, all with their own unique motivations and interpretations behind voting to pass or reject a given bill. How do you glean one "clear" intent from that? The one way to insure a new law will never be executed by the president is to compel him to determine the undeterminable prior to the law’s implementation, which is exactly what we would be doing if we compelled the president to execute a law in conformity with "the clear intent of Congress."

Even if "clear intent" could be discerned, it still would not be controlling upon the president, for two reasons.

As Justice Antonin Scalia has pointed out, "it is the law that governs, not the intent of the lawgiver."1 In executing a law, the president is bound by the text of that law, not by whatever congress intended the law to say or mean.

Also, congressional intent behind a law is not controlling on the president in his enforcement of that law because congress does not have sacrosanct power over the legislative process.2 If it did, the framers would have allowed a congressional bill to become law without a presidential signature. The argument that congressional intent is controlling upon the meaning of a law is invalidated by the constitutionally provided presidential power to sign or veto a bill and the judiciary’s power to void a law as unconstitutional if necessary. It is a system we familiarly call checks and balances.

Critics of this piece may claim that I give the president immunity to do what he pleases with the law. Not at all. I assert that being possessed of the power and responsibility to execute the laws of the United States means the president has the attendant, incorrigible power to not execute a law, or aspect of a law, per his discretion. Being able to follow his own discretion and not enforce a law is a far cry from asserting he can act in contradiction and violation of the laws, which I do not assert. The right to inaction is not the same as a right to action unlawful.

The president, according to his Article II powers as chief executive of the laws of the United States, has an inherent right to not only interpret those laws, but to not, according to his own discretion, enforce those laws he deems unworthy of his enforcement. In our constitutional regime of separation of powers such is the president’s sovereign power. For congress to challenge this, or demand the president justify his use of that power, would be for it to unconstitutionally infringe upon the president’s executive power by exercising executive power itself. This, not presidential signing statements and their content, would violate the inviolable constitutional system of separate and distinct powers. Accordingly, I disagree with the ABA task force’s conclusions and arguments.

1. Scalia, Antonin (1997). A Matter of Interpretation. Princeton, New Jersey: Princeton University Press. (p. 17.)

2. It has sacrosanct power over the power to legislate, or to craft and pass legislation, but it does not have sacrosanct power over the legislative process, which only begins with the crafting and passing of legislation and ultimately continues on into that piece of legislation becoming law.