Q&A With Congess: Should Presidents Sign Laws They Believe Unconstitutional?

When a President takes office, he is required by the Constitution itself to take an oath to “preserve, protect and defend the Constitution of the United States.”

President George Washington began an unbroken tradition when he insisted on taking this oath with his left hand planted on a Bible and finishing with the words “So help me, God.”

Today, President Bush is threatening to start a new tradition. Rather than vetoing bills that include provisions he believes are unconstitutional, he has been signing them into law and then issuing statements either suggesting elements of the new law are unconstitutional or actually claiming a right not to fully enforce the law he himself has just made.

This controversial “signing statement” habit of President Bush raises an obvious question: Should Presidents sign laws that include provisions that they believe are unconstitutional.
In other words, should Presidents violate their oath of office?

The obvious answer is no. For some reason, however, this has not been obvious to President Bush.

In 2002, when he signed the McCain-Feingold campaign finance bill, Bush issued a statement suggesting that parts of it violated the 1st Amendment right of free speech—which, of course, they did. “Certain provisions present serious constitutional concerns,” Bush said, adding, “I expect the courts will resolve these legitimate legal questions as appropriate under law.”

Predictably, the liberal majority of the Supreme Court did not decide the question appropriately, keeping in place the unconstitutional restrictions on speech that Bush had signed into law.

The American Bar Association released a study last week reporting that Bush had issued more than 800 signing statements about bills he made law. White House Spokesman Tony Snow admitted in a press briefing: “A great many of those signing statements may have little statements about questions about constitutionality.”

By signing unconstitutional laws, and suggesting he need not fully enforce them, Bush is creating a precedent that could be woefully abused by the next Democratic President.
I asked senators this week whether Presidents should sign laws that they believe include unconstitutional provisions.

There are signing statements in which sometimes the President will raise constitutional questions or objections about bills that he signs into law. You’re familiar?

Sen. George Allen (R.-Va.): Yeah, vaguely. Yeah.

Now if he raises a constitutional question, should he sign that bill?

Allen: That’s a heckuva good question. Well, if he believes a law, if you don’t agree with a law—I’ll just look at it as a governor. If they passed a bill in the legislature I didn’t like, I’d veto it. Now, of course the governor in Virginia has the ability to amend bills. The President doesn’t have it. It’s either sign or veto the whole thing. The signing statement may be an intention on how to actually administer a law, but I don’t see where a President can actually ignore a law that is very clear.

You take the issue on torture. That’s the one that has gotten the most interest. It is my position and the position of the elected people as reflected by the Congress that we should not be involved in torture and the President should not allow, nor should anyone else in the federal executive branch allow, torture of those who are detained. So they can put whatever nuances and framing they want into it, but they still have to follow the law.

Sometimes the President issues a signing statement before signing a bill into law that raises constitutional questions. Should he be signing into law any bill that he believes has any constitutional problems?

Sen. Sam Brownback: (R.-Kan.): That’s for him and his lawyers to decide. It seems like if you think something is unconstitutional you should declare it as such and not sign it, if you believe it to be unconstitutional. Now, it may be that he and his lawyers are positioning portions of the bill to be declared unconstitutional by the courts later because most of the laws have a severability clause that says okay if this portion is declared unconstitutional then the rest of it is still law. So he may be setting it up for that.

But why leave it up to the courts later?

Brownback: You could say 95% of the bill is good. “I like 95% of the bill. I’m not going to veto it for the 5% I think is unconstitutional, and the courts will take care of it and the courts will take that out.” That could be, but I don’t know what it is in each of the circumstances.

Sometimes the President will raise constitutional questions about a bill before he signs it into law. If he thinks any part of it is unconstitutional, should he be signing that bill?

Sen. Tom Coburn (R.-Okla.):
If, in fact, he thinks it’s not constitutional, I would agree, he shouldn’t sign the bill, but that’s not what he’s doing. What he’s doing with signing statements is building the record, because the court looks at almost everything and what you’ve heard in a lot of court decisions is that the record wasn’t clear. Well, in a signing statement he’s saying, “This is what I believe this to mean. Here’s how I interpret this.” So at least it gives some weight to what his interpretation is as well as both sides of the issue in the Senate and the House. I think that’s a legitimate function. When he’s saying, “I’m not going to do what you’re saying to do,” then with that signing statement, we ought to send it back and say directly you should.

Do you think the President should be signing any bills if he thinks any part of it is unconstitutional?

Sen. Judd Gregg (R.-N.H.): No.

I’d like to talk to you about signing statements. Sometimes the President issues constitutional concerns before he signs a bill into law. Should he be signing bills into law if he believes any part of it is unconstitutional?

Sen. James Inhofe (R.-Okla.): No, I don’t think he should. If he believes that, he should say he believes that and not do it. … I sometimes look at things that President Bush does and think it’s probably all right, however, what if we had Clinton as President? It wouldn’t be. So, that’s what I can tell you.

The President has signed several bills that he said raised constitutional questions. Do you think he should sign any bill into law that he thinks is, in any part, unconstitutional?

Sen. John McCain (R.-Ariz.):
I think that’s up to him.

I mean, this would have impacted McCain-Feingold a little bit. I think that’s the case where he is most explicit.

McCain: It’s his decision, not mine.

The President, in his signing statements, sometimes says something is unconstitutional. Should he not sign it then?

Sen. Jeff Sessions (R.-Ala.): I don’t know. Probably, in theory, he should not. In the reality of the world sometimes, in the political world we live in, sometimes in a piece of legislation it’s better to let it go.

He’s got 750 of these things.

Sessions: Most of the time he should not. Clearly, what if it’s just a possible enforcement of a bill that parts of it might be unconstitutional?

I guess the best example of this, in a signing statement, is campaign finance. He said very directly in it, I have constitutional reservations about this bill and he proceeds to sign it.

Sessions: Well, he should have vetoed that. That was the heart of the bill that was unconstitutional, I thought, and some on the Supreme Court agreed, but not enough.

Now, the President has issued these signing statements where he has sometimes raised constitutional questions to bills that he signs. Should he be signing bills that he thinks are, in any part, unconstitutional?

Sen. John Sununu (R.-N.H.): Boy, that’s an interesting question. Should the President sign a bill that he thinks is unconstitutional.

I mean, the best example is campaign finance. He said very clearly in his signing statement: I have constitutional concerns and he signed it anyway. Is this a problem?

Sununu: I’ve never been asked that question. No. If a member of Congress sincerely believes a bill to be unconstitutional, we have a responsibility to raise that objection and to vote our conscience. And in the same way, if a President of the United States, Democrat or Republican, sincerely believes that a piece of legislation violates the letter of the Constitution, or even if they think it violates the spirit of the Constitution, I would hope that they would stand on principle and reject that. If they were overridden by Congress, then the Supreme Court is obviously designed to consider the legislation at hand and issue a ruling. But it’s a bad precedent for an elected official to take actions that they believe would result in legislation that is a violation of constitutional principles.