At the centennial of the 1912 election, pundits and politicos tell us, we again confront a constitutional moment. For the Right, the existential choice is between entrepreneurialism or social democracy, America or Europe. For the Left, it is between the 99 and 1 percent or, in President Obama’s less unhinged version, between a common future that’s “built to last” and unbridled, destructive capitalism.
I’ve always thought that the brouhaha over signing statements was much ado about nothing. During the presidency of George W. Bush, liberals discovered signing statements and decided they were bad and connected to a “lawless” executive enthralled by an idiosyncratic and dangerous theory of a unitary presidency. Except that signing statements as such had nothing to do with theories of the unitary executive, signing statements had long been issued by presidents across the ideological spectrum, and it was less that evident why signing statements in and of themselves were supposed to be dangerous. Unsurprisingly, the Obama administration has gone back to business as usual on many facets of executive power that were denounced by liberals just a few years ago, signing statements included.
But my esteemed colleague Mike Rappaport raises a more interesting question about signing statements.
The key to Rappaport’s concern is whether presidents have an obligation to veto unconstitutional laws. The issue he poses is not whether presidents are inappropriately ignoring legislative directions that “he doesn’t like,” as Senator Arlen Specter (among others) charged during the Bush years. The issue is whether presidents can have a constitutional obligation to refuse to enforce statutes of dubious validity that would not also require that he veto such laws. Does any constitutional obligation in the enforcement context (whether or not to implement a statutory provision) extend equally to the legislative context (the decision of whether to sign or veto a bill)? As I understand it, Rappaport contends that any considerations that would justify non-enforcement would likewise demand a veto.
I have observed elsewhere that over the course of the twentieth century, presidential signing statements seem to have taken the place of presidential vetoes. Presidential vetoes based on constitutional objections to proposed bills were fairly common in the nineteenth century, and presidential signing statements raising constitutional concerns about new legislation were relatively rare. Those tendencies reversed in the twentieth century, as presidents declined to veto unconstitutional laws and preferred instead to simply note constitutional objections. Should we object to the modern practice?
I regret the decline of constitutional vetoes and wish presidents would be more willing to put their money where their mouth is and refuse to sign statutes that they believe are unconstitutional. If presidents were serious about wanting to enforce constitutional boundaries on legislative power, they would insist that Congress muster the votes to override a presidential veto (and take whatever political heat such a vote might generate). Presidents, like other public officials, have some obligation not only to adhere to the constitutional rules themselves and carry out their assigned constitutional duties, but also to help preserve a public ethos of constitutional responsibility and fidelity. Refusing to shoulder the political burden of vetoing laws that deserve to be vetoed is not helpful to maintaining a constitutional republic.
But our condemnation of cowardly presidents should probably be tempered a bit.
Signing statements voicing constitutional objections to statutes is often taken as tantamount to presidential non-enforcement of the legislative provisions that are singled out for criticism. And indeed, sometimes presidents suggest as much, as when President Obama claims that his administration will regard statutory commands as merely “advisory.” More often, however, presidents hope that their statements will influence the judiciary, rather than direct the executive. To that extent, signing statements are an effort to pass the buck to the courts to strike down statutory provisions that the president himself is not willing to veto. Most generously, we might think that judges are better positioned to fully evaluate the constitutional concerns and render an authoritative ruling on the disputed issue of constitutional interpretation than presidents are (at least in some cases). There are even some occasions when courts are unlikely to be able to hear an appropriate case unless the president refused to comply with a statute, and presidential non-compliance with statutes has been particularly defended in such cases where non-compliance is only the temporary expedient for getting a judicial resolution.
A more political rationale for preferring signing statement over vetoes turns on the nature of the bills under consideration. It is not uncommon for Congress to attach constitutionally objectionable provisions to critical legislation that presidents will be reluctant to delay with a veto. The 2005 McCain amendments regulating how military detainees could be interrogated were included in a much larger military appropriations bill that Bush was unwilling to obstruct. In an age when omnibus laws are commonplace, presidents more rarely have a reasonable opportunity to veto legislation based on objections to particular language buried in a bill.
But none of these arguments holds in the case of Senator Ted Cruz’s S. 2195, which denies admission to the United States for any representative to the United Nations who has been found to have engaged in espionage or aid terrorists. President Bush had objected to a similar statutory provision for encroaching on “the exercise of my exclusive constitutional authority to receive within the United States certain foreign ambassadors,” and President Obama approvingly quoted that signing statement in his own.
The constitutional objection is familiar and has a long lineage dating back to the early nineteenth century. Moreover, presidents have often announced in the past that such legislative provisions could be no more than advisory to the president in the exercise of his own constitutional duties. But there is little excuse for not putting those objections into a veto message rather than a signing statement. The Cruz measure was a stand-alone bill. Vetoing it would have had no consequences for other policies or for the operation of the government. The only difficulty with a veto of this bill was a political one – the president would likely lose an override vote on the popular bill, and a veto would have more visibly put the president on the “wrong side” of the terrorism issue.
Sometimes presidential non-compliance without a veto is justified, but in this case a signing statement was not the better part of valor.