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Monday, June 26, 2006

Question for Conservatives: Does the Constitution Matter? Even a Little?

According to this Boston Globe article (link found at this site put together by Virginia attorney Joyce A. Green and referenced at Balkinization), Senator Arlen Specter (R-promises a lot and typically delivers little unless it is important to WH and religious radicals) has scheduled a hearing for tomorrow on Presidential signing statements.

Others have written lots about this, so I won't belabor the details (see the detailed list of commentary at Green's site; I found the Gary Hart op-ed and Jack Balkin links particularly informative).

But here's the basic issue:
  1. The US Constitution says that Congress enacts legislation.
  2. The US Constitution also says that the President must either (a) sign, or (b) veto said legislation.
There isn't some third category -- yet President Bush has behaved as if there is one. Bush has made a practice of signing legislation while, in the process, issuing signing statements that declare his intention not to enforce specific provisions of Congress's enactment (as I understand it, Presidential signing statements have been around at least since the Reagan years, when they were championed by now-Justice Samuel Alito, among others). Charlie Savage of the Boston Globe has written that
President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution.

Among the laws Bush said he can ignore are military rules and regulations, affirmative-action provisions, requirements that Congress be told about immigration services problems, ''whistle-blower" protections for nuclear regulatory officials, and safeguards against political interference in federally funded research.

This conduct raises two issues. The second is whether the President's interpretation of the Constitution is correct in these specific cases. As applied to the relevant issues, that question is obviously of great importance.

But it pales by comparison to the first issue, which goes to the heart of the structure of the US government. Article II, Section 3 of the Constitution says that the President "shall take Care that the Laws be faithfully executed". It does not say that President shall pick and choose which laws to execute. So what should the President do when confronted with a statute that he feels is unconstitutional? Let's be quaint and consult the Constitution itself, which in Article II, Section 1 states that
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:

"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
It doesn't take much to realize, therefore, that if the President feels that a statute violates the Constitution, then he has not just the right but also the duty to veto that statute (for instance, suppose some future President were to lack the courage of the current one's convictions---surely the President would not want unconstitutional laws on the books when that pansy takes office).

The choice to sign an unconstitutional statute and then disregard its contents is simply not one that has any legitimate basis. Every time President Bush self-consciously refuses to enforce a law that he has signed, he defies his oath and his responsibility to the American people. (Cases when a different President signs a law likely are more complicated.)

There's been much talk on the left about impeaching Bush. While most of this talk is idle speculation, I'll take the liberty of taking it seriously for a moment. Should the President be impeached for misleading the nation into war? Well, maybe -- but then a lot of the people impeaching and judging him ought to first resign, since many were accomplices (given how little attention most paid to the details of the NIE before the war, the best that could be said might be that they were accessories).

Whatever you think about the war---even if you assume the worst about the President's duplicity leading up to it and willful incompetence in conducting it---it's much less of an affront to the President's obligations than is a policy of signing laws while announcing that you plan to disregard them and then actually disregarding them.

But don't just take my word for it. Conservative, former Reagan-administration lawyer Bruce Fein has been vocal on this issue. And he has a good idea:
Fein said he plans to tell the committee that it should include in all legislation a provision that cuts off funds for everything in the bill if a president uses a signing statement to exempt himself from following some part of the bill.
Of course, the President might simply disregard that provision as well -- why respect Congress's funding language if you disregard other facets of a law? But at least maybe it would be more difficult for Congress to duck its own Constitutional responsibility to hold the President accountability.

Which brings me to the views of another conservative. Back in September 2005, Peter wrote in a comment that
One could argue that one of the best rationales for the chief executive having the veto power is that he/she is charged with enforcing the law and if he/she believes it is unconstitutional, then he/she should veto it.

And to anticipate a possible rejoinder, no, the courts are not solely responsible for determining the constitutionality of a law. At least when considering the federal government, it is often said that each branch has a duty to ensure that laws are constitutional. Other branches shouldn't abdicate that responsibility simply because other branches also have that responsibility.
For precisely these reasons (which, incidentally, convinced me that I was wrong in the underlying post; see the update therein), the President has a duty to veto laws he really thinks are unconstitutional. Meanwhile, Congress has a duty to put a stop to the President's deliberate and publicly stated refusal to uphold his oath of office.

Perhaps I am naive. But I honestly do not understand how self-described conservatives can support a President whose stance toward the Constitution and the Legislative branch---which conservatives like to remind us is so much closer to the people than either the Executive or the Judiciary---is so cavalierly dismissive. If conservatives mean a word of their endless declarations and dissertations regarding the text and meaning of the Constitution, then surely they cannot abide this President's determination to ignore it.

It's put-up-or-shut-up time for conservatives, both in Congress and elsewhere: Do they stand for any principles at all? Or do they simply support whatever George W. Bush declares the President can do?

6 Comments:

Blogger N.S. Barnes said...

I'm not a conservative, so it's no suprise that we find ourselves agreed on this subject.

What I suppose is most shocking is that he's already done this 750 times and hardly anyone has said, "Whoah, wait a minute!"

Oh well, at least we're saying something now. I had a different take on this though
http://spacetater.blogspot.com/

6/27/2006 12:57 AM  
Blogger Jonah B. Gelbach said...

n.s.

i have to tell you that that was one good laugh you just gave me! nicely done....

j

6/27/2006 8:13 AM  
Blogger Bu$h Ate My Baby said...

For a more measured discussion of this issue, please see http://gulcfac.typepad.com/georgetown_university_law/2006/07/thanks_to_the_p.html, a post co-written by 8 former staffers of Office of Legal Counsel, including heavy hitter Walter Dellinger.

9/05/2006 3:38 PM  
Blogger Jonah B. Gelbach said...

peter

i've read parts (maybe all) of that letter and found it interesting. at the end of the day i'm not sure i'm convinced, but obviously those guys know a lot more than i do. so i hope people will take your advice and read that letter.

i will mention that when i raised the question of bush's signing statements and stated refusal to enforce laws he signs, a conservative friend of mine wrote this in response:

But signing a piece of legislation should commit a president to enforcing that law -- it should be a per se admission of
constitutionality. The other options would of course be not to sign but let the bill become law, or to veto. Is there an instance that you are referring to where the president signed a bill into law and then later selectively enforced that law, claiming that it was unconstitutional? If so, I would agree that that is inappropriate.


Would you agree with that friend of mine, who is a lawyer who attended a top law school and likes to defend the current president?

j

9/05/2006 3:44 PM  
Blogger Bu$h Ate My Baby said...

So, to summarize what 8 former OLC members believe versus Jonah's assertions:

"But here's the basic issue:
The US Constitution says that Congress enacts legislation.
The US Constitution also says that the President must either (a) sign, or (b) veto said legislation.There isn't some third category -- yet President Bush has behaved as if there is one." Wrong.

"(as I understand it, Presidential signing statements have been around at least since the Reagan years, when they were championed by now-Justice Samuel Alito, among others)." Not wrong per se, but misleading in that presidential signing statements may have been around since as early as 1801, and the implication here is that this is some type of Republican Reagan/Alito creation.

"The choice to sign an unconstitutional statute and then disregard its contents is simply not one that has any legitimate basis." Wrong.

"Every time President Bush self-consciously refuses to enforce a law that he has signed, he defies his oath and his responsibility to the American people." Wrong.

So, to answer Jonah's rhetorical question, yes, the constitution matters to conservatives, even more than a little. To the extent that I may have been wrong also on some of these issues, (e.g., ""The choice to sign an unconstitutional statute and then disregard its contents is simply not one that has any legitimate basis."), I will accept that I was wrong. Will Jonah?

9/05/2006 3:57 PM  
Blogger Jonah B. Gelbach said...

Peter

Tempted as i am to reply by simply saying that yes, i will accept that you are wrong, i won't do that.

However, I will say that -- as my prev comment makes clear -- there are good arguments for the case that signing statements are not per se and only in themselves abusive. If i had more time i would expand on whether that distinction is meaningful in the presence of a president whose use of them is so substantively abusive. Fortunately I don't have to, because that is the basic point that Peter's favored letter makes.

For the record, the letter peter advocates reading includes the following:

Like most misdiagnoses, the Report may have the doubly negative effect of concentrating attention on a phony problem—the issuance of signing statements that long have been used to signal the President’s belief that some aspect of a piece of legislation is unconstitutional—while at the same time deflecting attention from a very real problem, namely, the unjustifiable arrogation of power that President Bush has asserted and continues to assert in office.

I would be delighted to hear Peter agree with that last part.

Additionally, Peter's out-of-context reading of it notwithstanding, the spirit of my objection is pretty clearly the same as this excerpt from the letter he likes:

The Report discusses some of those problems (e.g., the absence of transparency), but it studiously avoids addressing the most significant problem with the Bush signing statements, as well as with other failures to enforce preexisting statutes—namely, that the substance of many of this President's constitutional objections is wrong and threatens to dangerously expand the powers of the President in a manner that fails to respect the checks and balances of our constitutional system. (Bold added.)

Peter is very worried about my reference to signing statements, and if that were all I discussed, he'd have a much bigger point than he has. In fact, I wrote that

Whatever you think about the war...it's much less of an affront to the President's obligations than is a policy of signing laws while announcing that you plan to disregard them and then actually disregarding them.

(The bold is in the original, for the record.) Frankly, I don't think there's anything in this passage of mine that contradicts the basic force of the letter with which Peter agrees. Had I left out the text "and then actually disregarding them", then there'd be a meaningful difference. But I didn't.

The one substantive statment I made that I think directly contradicts Peter's favored letter is this:

It doesn't take much to realize, therefore, that if the President feels that a statute violates the Constitution, then he has not just the right but also the duty to veto that statute

Here there is a real difference between what I wrote and what's in Peter's favored letter. I think my claim is probably too universal, as was my aforementioned conservative friend's. But it strikes me as a pretty good working principle -- except when there is a strong reason why a law must be signed despite the presence of some part that the pres believes is unconstitutional, I think the president should veto that law. This issue strikes me as one on which reasonable people can disagree, though perhaps Peter feels differently.

Lastly, if it is important to Peter that I concede that signing statements are even less new than I made a point of saying they were for purposes of full disclosure despite its potential to weaken my criticism of Bush, then I am happy to concede that error.

9/05/2006 4:19 PM  

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