Are there any limits to the president’s discretion not to enforce a law? Conservative scholars think so. I say they’re wrong, and that we are witnessing the rise of what I call crown government in The Once and Future King. Where conservatives see a constitutional crisis, I see the inevitable working out of the pathological logic of presidential government.
I’ve always thought that the brouhaha over signing statements was much ado about nothing. During the presidency of George W. Bush, liberals discovered signing statements and decided they were bad and connected to a “lawless” executive enthralled by an idiosyncratic and dangerous theory of a unitary presidency. Except that signing statements as such had nothing to do with theories of the unitary executive, signing statements had long been issued by presidents across the ideological spectrum, and it was less that evident why signing statements in and of themselves were supposed to be dangerous. Unsurprisingly, the Obama administration has gone back to business as usual on many facets of executive power that were denounced by liberals just a few years ago, signing statements included.
But my esteemed colleague Mike Rappaport raises a more interesting question about signing statements.
Recently, President Obama signed a bill into law and then announced that he would not enforce (or at least feel bound by) a provision in the bill. Once again, President Obama has aggressively asserted executive power – in a way that prior Presidents have, but that he and Democrats criticized before he became President.
The law prohibited admittance to the U.S. by representatives to the United Nations determined to have “engaged in terrorist activity” against the U.S. or its allies. “Obama, in a signed statement attached to the measure, warned the legislation curtailed his “constitutional discretion” and that he planned to treat the law as ‘advisory.’” Obama could have vetoed the law, but he chose to sign it and then not regard it as legally binding.
There are several positions that one can have – based on the Constitution’s original meaning – in a situation where the President is presented with a bill that contains an unconstitutional provision.
1. One might believe the President has discretion to sign the bill and then to not enforce the unconstitutional provision. This appears more or less to be the position of Presidents of both parties.