Signing Statements Revisited

In my recent post on presidential signing statements, I asked:

Since the signing statement is not authorized by the Constitution, what is to prevent the President from abandoning the pretext of the signing statement and simply issuing notices of which laws he will and won't enforce? What is to prevent the President from arguing that he can disobey laws that other Presidents signed before him, the reason being that he would not have signed that law had he been President then, or would have at least issued a signing statement justifying his current position.

More on Signing Statements

Put another way, I posed this syllogism:

(a) "The Constitution expressly and unambiguously prohibits a President from choosing which laws he (or she) will enforce.

(b) The Line Item Veto is prohibited by the Constitution.

(c) Signing statements are not contemplated by the Constitution.

(pdq) Because signing statements are not contemplated by the Constitution, they can grant no greater power or right than is granted by the Constitution.

(pdq) The President's power to ignore constitutional laws, if it exists, must exist independently of the issuance of a "signing statement"

(d) The President has argued this power arises from a "Unitary Presidency" theory that, among other things, makes the President arbiter of the constitutionality of the laws that he is required to enforce.

(e) The powers of the "Unitary Presidency" can be found implicitly in the shadows and penumbrae of the President's expressly delineated powers, duties and responsibilities

[ed. notwithstanding it runs contrary to the express Constitutional language] [ed. this is according to Dick Cheney, btw]

(f) Whether the President chooses to enforce a law is dependent upon the President's determination of the law's constitutionality.

(pdq) The President's power to refuse to enforce laws arises from the Constitution and is independent of any "signing statement"

(pdq) Since the President's power to refuse to enforce laws is independent of a "signing statement" he may refuse to enforce statutes he signed into law regardless of whether he had issued a "signing statement" giving prior notice of his intention.

(pdq) Since the President's choice of laws to enforce depends upon the President's interpretation of the law's Constitutionality, the President can choose not to enforce laws passed Congress and signed by prior Presidents. For that matter, the President can simply change his mind and selectively enforce laws against political enemies.

As I said in my previous post:

No one is above the law. No one should be. Not even (especially not) the President of the United States. I agree with the ABA. The President's use of the signing statement is nothing less than the assertion of the tyrannical authority to make the law subject to the will of one person alone. A practice condemned in the Declaration of Independance, the U.S. Constitution, and in every civil society.

Well, it seems I'm not alone in my conclusions and concerns.

The Georgetown Law Faculty Blog includes a lengthy July 31 posting co-written by David Barron (Harvard Law School), Walter Dellinger (Duke Law School), Dawn Johnsen (Indiana School of Law, Bloomington), Neil Kinkopf (Georgia State Law School), Marty Lederman (Georgetown Universty Law Center), Chris Schroeder (Duke Law School), Richard Shiffrin (University of the Pacific McGeorge School of Law), Michael Small (Akin, Gump, Strauus, Hauer & Feld, LLP), all of whom have served in the Office of Legal Counsel. See Untangling the Debate on Signing Statements.

The authors of this post (all far more qualified than I) reach the same conclusions as I do in my little syllogisms above - That George W is using the so-called "unitary Presidency) theory to claim that his enforcement of the law of the United States is discretionary, subject only to his will. They take the ABA Report to task because it fails (in their estimation) to highlight and explore this particular risk. The authors generally agree with the report and its recommendations , but fault it for failing to explore this issue (perhaps the most serious) in detail.

The post, Untangling the Debate on Signing Statements, explores this issue in considerable detail, with eloquence and attention to many useful references available on the net. Anyone seriously interested in Presidential Signing Statements should find it useful, welcome and thought-provoking.