Signing a Bill and Then Not Enforcing Some of Its Provisions

Over at the Volokh Conspiracy, John Elwood notes that President Obama signed the Defense Authorization Act, but will not enforce — or as he euphemistically puts it, reinterpret — certain provisions that he regards as unconstitutional.  This is standard fare as to large spending type bills like this one.  But I can’t resist noting that critics on the left used to go crazy when Bush did it; not so much when Obama does.

While this is the practice these days, I think this action of signing a bill and then not enforcing a provision is always unconstitutional.  (I said this when George Bush was President — in fact, when each of the two Bushes was.)  And this is true, even if one is a Departmentalist who believes that the President has an independent obligation to enforce the Constitution.   I first made the argument in 1992 here in the Northwestern Law Review.  I then developed it further in this article.  Here is the abstract:

This short essay for a symposium addresses the presidential practice of signing a bill into law while stating that one will not enforce certain provisions in it that the President considers unconstitutional. This essay argues that the practice is always unconstitutional, irrespective of whether one believes that the President possesses the power to not-enforce. If one believes that the President lacks the power to not-enforce provisions that he believes are unconstitutional, then, of course, the President cannot “sign and not-enforce.” But even if one believes that the President has this power to not-enforce, the President still cannot sign and not-enforce. If the President concludes that the Constitution forbids him from enforcing part of a bill, then he must also conclude that it forbids him from signing that bill. A decision to sign a bill and not-enforce part of it impermissibly treats the Constitution as a matter of presidential discretion rather than as supreme law that always binds the President.

In making this argument, I generally employ an originalist-formalist conception of law, which I believe provides the proper approach to the Constitution. The essay, however, does briefly examine signing and not-enforcing under a nonoriginalist-functionalist approach, concluding that there is a strong case for reading the Constitution as largely, and perhaps categorically, prohibiting signing and not-enforcing.