Checking Executive Disregard

Article excerpt

"I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States to return it with that objection."

- James Madison1

"It is emphatically the province and duty of the judicial department to say what the law is."

- John Marshall2

There is seemingly little room for controversy in the Constitution on how a bill becomes a law: If a bill receives a majority of votes in both houses of Congress and the President signs it, the bill becomes law and the President enforces it. The President, however, may find himself in a precarious situation if Congress presents him a bill that contains a provision he believes to be unconstitutional.3 Must he veto the bill? Or may he follow a theory of executive disregard and sign the statute into law but decline to enforce its unconstitutional provisions?4 What if Congress overrides the President's veto?5 The issue is more complicated where a subsequent President believes a law enacted before he assumed office is unconstitutional. Unlike the first instance, he never had the opportunity to veto it. May he decline to enforce it?

While in early American history executive disregard was a rare practice, the trend has changed. In recent history, signing statements - brief written statements issued by the President when he signs a bill into law6 - have become the vehicle by which a President announces his intention to disregard a provision of a statute he believes is unconstitutional.7 Rather than vetoing the bill, he signs it into law declaring, in a signing statement, his intention to not enforce the provision.8 This practice has flourished since President Carter with each subsequent President issuing, on average, forty signing statements per year.9 President George W. Bush issued an average of only twenty-five signing statements per year through his 2005 term.10 He indicated that he would not enforce a provision of a bill based on his constitutional concerns, however, at a rate of twenty times per year, more than doubling the average rate of his predecessor.11 Indeed, President George W. Bush objected to 1,496 provisions of various bills on constitutional grounds via signing statements.12 President Barack Obama has continued this trend, objecting to and declaring five provisions of the Omnibus Appropriations Act of 2009 non-binding.13

In response, Senator Arlen Specter proposed the Presidential Signing Statements Act of 2006 in an attempt to curtail this growing trend.14 Senator Specter subsequently reintroduced the legislation in 200715 and again 2009. 16 The bill would instruct courts not to consider signing statements as a part of legislative history and provide Congress the right to file an amicus brief as well as present oral arguments in a case where the construction or constitutionality of any act of Congress is in question.17 This bill, however, only addresses signing statements and not executive disregard.

This Note contends that a President who signs a bill into law may not engage executive disregard. A President who has the opportunity to veto a bill with a provision he believes to be unconstitutional has a constitutional duty to do so. Failing to do so is an endorsement of the bill's constitutionality and the President is duty-bound to enforce it. This conclusion is less apparent, however, when one considers textual arguments surrounding: (1) a subsequent President who assumes office and believes the enforcement of the statute to be unconstitutional; and (2) a President whose veto has been overridden by Congress. In these instances, the text of the Constitution suggests that executive disregard is justifiable. This contention is also supported by the practice of Presidents in early American history. Thus, the Constitution may provide for a limited theory of executive disregard; however, substantial policy arguments against a limited theory of executive disregard remain. This Note urges that engaging in executive disregard, limited or otherwise, like any federal power must be subject to a check involving the other two branches of government. …