Richard Epstein’s Cato-endorsed article The Problem With Presidential Signing Statements rightly warns of some troubling executive branch power-grabs by the Bush administration. As Epstein writes:
Since he took office, Bush has used this device to object to more than 500 provisions in more than 100 pieces of legislation–nearly as many as the 575 signing statements issued by all of his predecessors combined. In these statements, the president often has claimed that the new laws violate the Constitution and signaled his intention not to enforce certain provisions, despite having signed them into law.
… President Bush dishonors traditions in his aggressive use of signing statements as one way among many to circumvent the congressional and judicial checks built into the Constitution.
… A second–and more troubling–point relates to the larger question of the role of judicial review.
Modern understanding of judicial review requires the executive branch to take its marching orders from the Supreme Court. Signing statements, I fear, could be the opening wedge to a presidential posture that judicial decisions may limit the president’s ability to use courts to enforce his policies, but cannot stop him from acting unilaterally. On this theory, the president could continue to order wiretaps and surveillance in opposition to the Foreign Intelligence Surveillance Act after a court had determined that he has exceeded his powers–he just couldn’t use the evidence acquired in court. Different branches of government have different views of the law, yet the executive marches on. A major check on executive power goes by the boards.
Epstein is right to fear the erosion of checks and balances, and the expansion of the executive branch’s power. However, Epstein also seems to believe that it is unconstitutional for the President to decide for himself whether a law is unconstitutional. In the associated podcast, Epstein argues that it may be unconstitutional for the President to decide for himself not to enforce a given law if he thinks it is unconstitutional. The implication here is that only the Supreme Court can determine constitutionality. This is contrary, of course, to the tripartite structure of the Constitution in which all three branches have an obligation, a duty, to abide by the Constitution’s limits. The President takes an oath to adhere to the Constitution, not to the Supreme Court’s “marching orders”.In fact, as law professor David Mayer (a regular Cato contributor and member of the Editorial Board of the Cato Supreme Court Review) points out, in The Constitutional Thought of Thomas Jefferson (see pp. 131, 259, 263, 269-72, which can be viewed on Amazon), under Jefferson’s theory of concurrent review, each branch of federal governemnt has an equal and independent right to construe the Constitution. The Supreme Court is not superior in this respect; it is one of three. What this means is that on a horizontal level, all three federal branches have an equal authority to construe the Constitution.
Or, as James Ely notes, in his review of Mayer’s book,
Jefferson’s attitude toward judicial review was similarly migratory. He was initially receptive to some type of federal judicial oversight of legislation. Indeed, he took the position that a bill of rights would give the federal judiciary a basis on which to safeguard encroachments on liberty by the other branches of government. However, responding to Federalist control of the courts and the Sedition Act trials, Jefferson later rejected the doctrine of judicial review in the 1790s. Rather, he espoused a tripartite theory of constitutionalism under which each branch of the government was free to interpret the Constitution and decide the validity of an act.
(For more discussion of concurrent review, see: my article, Supreme Confusion: Or, A Libertarian Defense of Affirmative Action; William J. Quirk & R. Randall Bridwell, Judicial Dictatorship xiv, 10-11, 13; Supremes Right on ‘Kelo’; and my Fourteenth Amendment/Federalism links/resources.)
So, yes, we should be troubled if the executive branch disregards limits placed upon it in the Constitution; but not when it declares that it is obligated not to enforce unconstitutional laws.
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Nice article Stephan. It seems to me that what needs to be checked and balanced is the Supreme Court.
If each branch is equal then why should the Supreme Court have the final say as to what is constitutional? I find the the Supreme Court has little regard for the constitution and most people should have little regard for the Supreme Court.
The president should say, thank you for your opinion about the constitution, but the executive is a co-equal banch and your opinion is just that which we can take or leave.
Can someone help out with these two questions, since I am not an attorney or expert on the U.S. Constitution: Where in the Constitution was the Supreme Court expressly given the power to decide the constitutionality of federal laws? Also, did John Marshall effectively assume this power for the Supreme Court?
150 years of case law have given the Supremes the final say. If the constitution writers didn’t want it they could have given Congress the ability to veto the Supremes with a super majority.
Dennis,
Judicial review is not a power granted to the court in The United States Constitution. The Supreme Court has simply claimed this power and neither of the other branches has seriously challenged it in 203 years.
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I’ve been interested in this, too. I think the ABA (and Sen. Specter) is full of itself, per usual, and is doing the Constitution a further disservice. There is ALWAYS danger in a new law and that is the point of having three branches of government, federalism, and so many individual rights that are supposed to be untouchable by government in the first place. This whole discussion about “signing statements” is completely predicated on the idea that the President has to “execute” every law no matter what… unless the Supreme Court says not to or somehow changes the law. In other words, it is all bologne.
So, the idea is that the Congress can declare the actions of the executive, including those of the President and the regulatory agencies and the case law made by courts unconstitutional. The President can refuse to enforce the Congress and the Supreme Court-made rules. And the Supreme Court can invalidate both Congressional legislation and what the executive branch does on constitutional grounds. A pretty neat idea. Good job, Kinsella.
The founding fathers actually proposed giving the Supreme Court the ability to overturn laws, but rejected that idea multiple times: http://ttokarnak.home.att.net/History.html
The Constitution? What’s that? Oh yeah, it’s that fraud of a document that created a central government with unlimited powers thanks to the overly vague wording of the general welfare and interstate commerce clauses. Bring back the Articles of Confederation.
no ideology has a moral or political ‘high ground’ on the content of the Constitution.
Isn’t the proper presidential response to an unconstitutional bill to Veto it? If he signs a bill into law he is agreeing that it is constitutional in his view. These singing statements are merely a power grab by a president who doesn’t want to have abide by the rules.
Ryan: The general welfare and interstate commerce clauses are not overly vague, that is what the statists want you to believe. The general welfare clause is in the first clause of article one, section 8 and therefore only effects the other clauses of Art1, Sec8. This clause does not stand on it’s own anywhere in the document and so the modern courts view of this statement as a stand alone clause is what is wrong, not the constitution.
Furthermore, the interstate commerce clause is similarly one of the clauses of Art1, Sec8. While modern legal constitutional theory focuses on the term commerce and attempts to define that, the real word to focus on is regulate, which when the Constitution was passed meant ‘to make regular’. In other words, this clause was put in to give the federal government the power to make sure no state will impose a tax on goods or services from other states (or countries).
You claim that the Constitution, “created a central government with unlimited powers” when it really took over 150 years and a fed created depression to create the political environment to redefine these terms and clauses.
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