Presidential Signing Statements Constitutional, Says Harrison

October 30, 2006
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Professor John Harrison

Despite the American Bar Association's recent vote in favor of curtailing the use of presidential signing statements, the practice of executive review is supported by the Constitution, said Professor John Harrison in a classroom-style talk sponsored by the American Consitution Society Oct. 19.

Signing statements, which the president issues to signal an intention not to enforce part or all of a signed law, have stirred up controversy due to their frequent use by President George Bush. This increase in use follows a presidential trend going on for the past 30 years.

The controversy arises from two particular ways in which signing statements have been applied, Harrison said. The first way is "to announce that although the statute has become statute, the president believes [that] parts of it are unconstitutional, and therefore invalid, and are not to be carried out." The second, as Harrison put it, "is to create the president's version of legislative history."

At the forefront of the controversy is the ABA, which, before voting to limit the use of signing statements, released a report in July 2006 that takes a position on signing statements by criticizing the related idea of executive review.

Harrison said he is not convinced, however, that executive review is a problem. To explain his thoughts, he addressed the two main arguments the ABA offers against this idea.

The first argument, to which the ABA devotes a great deal of its report, claims that executive review is akin to line-item veto because it allows the president to ignore parts of statutes, Harrison explained. Since line-item veto is not an option for the president, the reasoning goes, the analogous act of executive review should not be available to him either. Yet Harrison pointed out that executive review is not the same as line-item veto.

A veto, on one hand, is "a policy tool of the president that he can use for any reason," both constitutional and non-constitutional, Harrison said. "He can veto a statute, a bill, because he thinks it's a bad idea." In the case of executive review, on the other hand, "All the president has to think is that the provision is unconstitutional," Harrison said. "That is not an exercise of his policy discretion--at least, it's not supposed to be an exercise of his policy discretion--it's supposed to be an exercise of legal judgment."

To elucidate this point further, Harrison referred back to the framers of the U.S. Constitution as they wondered how best to design the veto to maintain a presidency that would be independent enough from the legislature. After experimenting with the idea of giving the veto to a collegial body, the members of the federal convention eventually entrusted the responsibility to the president alone. Harrison said part of the rationale behind this decision was the federal convention members' belief that "the functions were distinct; that exercising a veto, possibly on constitutional grounds, and engaging in constitutional review were different things."

The second argument presented by the ABA against executive review is the Take Care Clause of the Constitution. Found in Section 3 of Article 2, the clause states that the president "shall take care that the laws be faithfully executed and shall commission all the officers of the United States."

The argument seems simple enough, Harrison said. If the clause clearly states that the president must take care that all laws be faithfully executed, how can he not execute a law Congress has passed?

"And the answer is, of course, that his obligation to take care that laws are faithfully executed extends only to valid laws," Harrison said. If the president believes a law is invalid, this is precisely the time for him to apply a signing statement.

Harrison said the principal argument in favor of executive review is parallel to that of judicial review, just as the two ideas are themselves parallel.

Support for judicial review "takes the basic argument of Marbury vs. Madison," Harrison said. "The Constitution limits the validity of acts of Congress and substitutes the president for the courts." The Constitution gives the judiciary the role of knowing and following valid, rather than invalid, laws. Similarly, the president's role is to carry out laws; once again, these should be valid laws. "So if the president thinks a law is invalid, whether he just signed it or whether it's from 30 years ago, he shouldn't carry it out," Harrison said.

What it comes down to, according to Harrison, is that running the government would be impossible without interpreting the law. Therein, he said, lies the real argument for executive review: "Part of the executive function is to interpret the law, and we've got these rules--that's what the Constitution is--about what the law is."

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