For some reason the comments to my earlier post on Tribe and signing statements are not registering on the main page. Larry Tribe and Marty Lederman have graciously commented on my post — and here’s what they have to say:
Ethan: Thanks very much the kind words about Larry’s post, and for thoughtfully wading into this important debate. We’d like to focus our comment on only one (significant) aspect of your post.
Like many who discuss these matters, you appear to treat the “unconstitutional applications” problem as a minor and marginal exception, and thus you write as though the unconstitutional poison pill, lodged as a separate and typically severable provision of an omnibus measure, represents the paradigmatic occasion for the issuance of one of these veto-avoiding signing statements.
But, far from being a minor exception, the problem of unconstitutional applications of generally valid measures is ordinarily the whole ballgame. These signing statements are usually (not always, but usually) to the effect that “I’ll apply this in almost all situations, but I can imagine some cases in which it’d be unconstitutional.”
This is true even with respect to the signing statement on the McCain Amendment, for example. In that case, President Bush was basically saying that, even though he might not like the statute — and even though he fought hard for a CIA exemption — he will *generally* abide by the prohibition on, say, waterboarding and hypothermia . . . except that he reserves the right to use such techniques in extreme cases as called for by his view of the nation’s security and of military necessity.
Would we really want a president to veto a law such as the appropriations provision in which the McCain Amendment appears just because he can conjure such constitutionally problematic applications? Isn’t it *better* that he sign it, implement the other 99 percent of the provisions, apply the McCain Amendment almost always, but give everybody a head’s up that in rare cases he won’t consider himself to be bound by the attempt to tie his hands in this area?
To be sure, President Bush is wrong on the merits here, and in so many other areas; and in fact he isn’t really telling us *when* he would refuse to enforce this restriction. But it’s those facts that give rise to the real objections to what Bush is saying and doing — not the fact that he signed rather than vetoing the legislation, and not the fact that, in signing it, he attached a statement indicating his insistence that he’ll obey it but only up to some (unspecified) point.
Note that this describes virtually all omnibus legislation: It is almost always the case that the President can anticipate some possible applications, of some of the provisions, that would raise constitutional problems. The mere possibility that such applications might occur is hardly a reason for the President to veto the whole thing, even as a matter of good government policy — and certainly doesn’t create a constitutional obligation to use the veto. In these cases, the signing statement informs us in advance (or it should, anyway) how the President plans to deal with what he foresees as the possible constitutional dilemmas. It is hard for us to see how that is a bad thing, especially if the President has worked beforehand (as he should) to try to eliminate or amend those provisions that raise the possibility of constitutional problems.
This conversation just gets more interesting, I think. Perhaps I can modify my position to accomodate this interesting analysis and draw upon the distinction (however tenuous it may be) between facial unconstitutionality and unconstitutionality as applied. When the President foresees certain unconstitutional applications, signing statements are good and give us fair warning about what the Executive is thinking. But in those potentially “marginal” cases where the President is making a claim through the statement about facial unconsitutionality (or a claim about the vast majority of applications), perhaps we should encourage the veto rather than a statement of refusal to enforce the law. Using the McCain amendment just stacks the deck by focusing us on the substantive analysis you think central to this inquiry. I don’t deny that that is a worthy inquiry (and agree with you on the merits). But it evades the more procedurally-focused analysis I was trying to get at. If the McCain Amendment had been appended to the Patriot Act, say, perhaps those of our ideological persuasion would prefer a full veto. But my point has nothing to do with political substance; it is a process point.
Posted by Ethan Leib on August 8, 2006 at 08:35 PM