Presidential Signing Statements
Byline: Robert F. Turner, SPECIAL TO THE WASHINGTON TIMES
Tomorrow or Tuesday, the American Bar Association House of Delegates, meeting in Honolulu, is likely to approve a unanimous report and resolution by a task force declaring it is "contrary to the rule of law and our constitutional system of separation of powers" for the president to claim authority to disregard, or to decline to enforce, all or part of a law he has signed, or to interpret that law in a manner inconsistent with the intent of Congress, because he believes it to be unconstitutional. According to the task force, the president has but two options: he may veto the entire bill, or enforce it in full.
The ABA report largely ignored the real problem, which for the last 35 years has been legislative usurpation of presidential power often by attaching unconstitutional "riders" to important legislation that is difficult to veto. And, sadly, while all members of the task force are certainly honorable and able, most have been frequent contributors to the Democratic Party or its candidates, and at least one of the two Republicans included was a known critic of the use of signing statements at the time of his appointment.
By failing to include anyone with a contrary perspective on the panel, the ABA has served neither its members nor the public.
It is true, as the task force notes, that the president has a constitutional duty to "take Care that the Laws be faithfully executed." It is also true that Chief Justice John Marshall's landmark 1803 opinion in Marbury v. Madison established, in the words of the task force, that "definitive constitutional interpretations" are entrusted to the Supreme Court. No one questions that.
But the Constitution also requires the president to take an oath of office that he will "preserve, protect and defend the Constitution of the United States," to the best of his ability. And in Marbury, Chief Justice Marshall also proclaimed "a legislative act contrary to the Constitution is not law."
Obviously, when confronted by a statute he believes usurps his powers or otherwise violates the Constitution, the president's constitutional duties must prevail over any imposed by mere statutes. Presidents have been refusing to implement unconstitutional provisions of statutes since James Monroe was president, and the issuance of formal signing statements either to identify provisions that are inherently unconstitutional that will not be enforced, or to instruct the executive branch how an ambiguous provision is to be interpreted to avoid constitutional difficulties, has a long pedigree, having been by done by Abraham Lincoln, Woodrow Wilson, Theodore and Franklin Roosevelt, Jimmy Carter, Bill Clinton (who used them far more often than did Ronald Reagan), and many other presidents.
It is true use of such statements has become more common in the post-Vietnam era; the explanation is not "lawbreaking" presidents, but rather a Congress that sometimes acts as if it believes it is the supreme sovereign authority of the nation rather than one of three co-equal, independent branches of government serving the sovereign American people. The recent outrage expressed by the bipartisan House leadership over the FBI serving a judicial search warrant in a Capitol Hill office is but further evidence of this alarming belief that Congress is "above the law."
It is also important to recall that Marbury established another important principle, that the president is entrusted by the Constitution with certain important powers "in the exercise of which he is to use his own discretion." Marshall explained, "there exists, and can exist, no power to control that discretion" giving as an example that, in establishing the Department of Foreign Affairs (now the State Department), the First Session of the First Congress simply instructed the secretary to carry out "the will of the president. …