March 17, 2009
When and How to Use Signing Statements to Declare Law Unconstitutional
The NYT editorialized today that President Obama should increase transparency in and promote checks on his use of Presidential signing statements to declare portions of bills unconstitutional. The editorial comes the week after President Obama first issued cautionary guidance on the use of signing statements (on Monday) and then issued his first signing statement declaring portions of the stimulus bill unconstitutional (on Thursday).
[The principles outlined in Obama's guidance] are good policies, but the real test will be in how they are applied. Mr. Obama should not use signing statements, as Mr. Bush did, to assert that his own interpretation of the Constitution trumps those of Congress and the courts. If he wants to claim that his objection is "well founded," then he should be able to point to court decisions or he should find a way to get the issue into court so the judiciary can make a call.
President Obama's statement last week on the stimulus bill met his principles outlined in his guidance, but it did not meet thishigher standard advocated by the NYT: He cited no case law, the statement included no real constitutional analysis, and it's not clear that cases testing his constitutional objections could ever find their way to federal court.
But the NYT standard, while promoting transparency and checks, is also skewed inappropriately toward the judiciary. For example, on many constitutional questions in federal legislation--and some raised in Obama's first signing statement--case law may be sparse or even non-existent. Therefore past executive practice, OLC advice, and any Congressional constitutional analysis may be much better indicators of the constitutionality of certain provisions.
Similarly, the President's constitutional position on many legislative provisions might never reach the courts, because the President, in declaring certain portions unconstitutional, refuses to enforce them. These nonactions raise justiciability problems and may well elude judicial review.
The NYT has it right that signing statements declaring portions of law unconstitutional should be more transparent and should leave room for checks. But in our system the judiciary is not the only branch with authority to interpret the constitution, and it is not the only check. For many of these questions, past executive analyses and practices are better than case law to support a President's position; and for many of these questions, Congress is a better check than the courts.
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