The danger of signing unconstitutional laws

|The Volokh Conspiracy |


Another interesting side-note that came up during the oral arguments in Zivotofsky was the issue of signing statements—or more specifically, whether it was OK for President George W. Bush to have signed the relevant statute into law (the Foreign Relations Authorization Act, Fiscal Year 2003) in light of his constitutional objections. Here's the signing statement explaining the decision to sign the bill and the objections to part of it.

As it happens, I wrote about this general question a few years ago, noting that it was "common," but "also controversial" for "the President to sign laws that he thinks are unconstitutional, at least in part." I suggested that signing unconstitutional laws was sometimes, but not always, constitutionally problematic, and that the ultimate analysis depends on factors like:

– whether the bill has constitutionally permissible portions
– whether some of those constitutionally permissible portions are in fact constitutionally mandatory, i.e., fulfill some of the President's constitutional duties
– whether there are other steps the President can take to keep the unconstitutional parts from being enforced.

While I didn't discuss this specific bill, I did discuss several similar ones. Here's what I said:

For example, the federal government must "guarantee to every State . . . a Republican Form of Government and . . . protect each of them against Invasion." This obligation is positive, not merely negative; it is not enough for the President to refrain from overthrowing state governments or invading the states himself. The Constitution requires him to protect against invasions by others, and to ensure that their republican governments remain intact. So when the President believes that a measure is necessary to win a war in which American territory is threatened, he not only believes that measure is wise, he also believes that it is required by his constitutional obligations to "protect" the states "against Invasion."

This suggests that when Congress passes an important national security153 measure that contains a few provisions that are potentially unconstitutional, the President can be justified in signing it. If he signs the law, an unconstitutional provision might be enforced in the future. If not, an invasion might succeed or a republican government might be overthrown. It is hard to lay out a complete calculus of these constitutional risks, but it is implausible that the President is always required to risk an unconstitutional invasion by vetoing a bill with an unconstitutional provision.

The portion of the recent signing statements controversy that condemned President George W. Bush for signing laws he viewed as unconstitutional155 can be assessed in this light; for example, in late 2001, the President signed an intelligence appropriations bill. He explained that it "authorize[d] appropriations to fund United States intelligence activities, including activities essential to success in the war against global terrorism." At the same time, one provision required the executive to report intelligence matters to Congress more extensively than he thought proper. According to the President, this requirement "in some circumstances, would fall short of constitutional standards," and therefore would not be applied. By signing the bill while planning to disregard this provision, the President concluded that his duty to protect the country against invasion outweighed the small danger of allowing the potentially unconstitutional reporting requirement to sit ignored in the Statutes at Large.Similarly, the President signed a three hundred billion dollar appropriations bill that he said would "provide[] the resources needed to continue the war against global terrorism, [and] pursue an effective missile defense," but that also imposed some potentially unconstitutional restrictions, such as notification requirements. Another appropriations bill provided "essential funding to support America's war on terrorism" and allowed the President "to meet the diplomatic requirements stemming from the September 11th attacks," but also "purport[ed]" to "interfere with the President's constitutional authority to conduct the Nation's foreign affairs." This pattern recurred throughout many of the unconstitutional laws he signed. One can dispute the President's judgment in these cases. Perhaps the provisions were not really unconstitutional, or perhaps the constitutional needs for these security measures were not as serious as he said. But my point is that his arguments were correct in form, and if his premises were correct, he acted properly in signing the laws even though he thought them unconstitutional. The unconstitutional provisions that he signed largely affected the executive branch directly, and would not be enforced against the President's wishes without a concerted effort by other branches.

Again, the recurring question is the balance of constitutional duties and constitutional risks. From the Presidential point of view, there could be a duty-based justification for signing the FRAA, which was said to "provides important new authorities, for diplomatic and related activities of the U.S. Government" and "strengthen our ability to advance American interests around the globe, including nonproliferation of weapons of mass destruction." You have to squint a little bit to turn those into the constitutional duties such as the duty to protect the nation, but only a little bit.

On the other hand, signing the provision does create risks that the allegedly unconstitutional provision might be enforced. The President has options to mitigate those risks, but they're not perfect, so his decision to sign tells us something about how he balanced the risks.

Interestingly, that seems basically consistent with this colloquy from oral argument:

CHIEF JUSTICE ROBERTS: If it had—if it were such a big deal, why did the Chief Executive at the time sign it?

GENERAL VERRILLI: Well, the Chief Executive issued a signing statement which really was, in effect, a disclaimer, in 2002. President Bush's statement said in 2002, this does not change our official recognition policy and we're going to treat it as advisory, and that did not have the effect of –

CHIEF JUSTICE ROBERTS: So we should give no weight to the fact that the Chief Executive signed the law that he is now saying has such a dramatic—that his successor, but I gather the position is the same—is now saying has such deleterious effects on American foreign policy? Well, as a general matter, does that have any consequence at all?

GENERAL VERRILLI: No. I mean, I think this Court held—I think this Court held in Myers that the fact that one President signed a law into—signed a law that violated separation of powers doesn't have any effect.

CHIEF JUSTICE ROBERTS: Oh, no. I know, I'm not suggesting it does, although that's a separate question. But it does go to the credibility of the assertion that this is going to have such dramatic effects on American foreign policy.

As I understand Chief Justice Roberts's suggestion here, it's that the President's decision to sign the bill does not mean that the President thought it was constitutional, but it does tell us something about the President's assessment of the relative gravity of the constitutional problems. That seems right to me.