Another Fein Mess

National Review Online | Published on

By Edward Whelan

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**Mr. Whelan’s essay was originally published as a reply to a lengthy letter from Bruce Fein that is available here.**

Unlike his ABA task-force colleagues, Bruce Fein deserves credit for responding to the withering criticism that the task force’s foolish report on presidential signing statements has earned from scholars across the political spectrum. The substance of Fein’s response, however, does him no credit: apart from his wild rhetorical flourishes, Fein’s response repeatedly misrepresents my positions, obscures what is really at issue, and is a jumble of non sequiturs. The primary effect of Fein’s letter is thus to highlight once again the wondrous and hilarious fact that this improbable Svengali, whom Chief Justice Roberts some two decades ago euphemistically described as an “unalloyed jurisprudential iconoclas[t],” somehow dazed the prominent academics and former judges on the task force into adopting his loopy analysis.

In its report, the ABA task force adopted the extraordinary position, contrary to the best reading of the Constitution and to two centuries of American practice, that the president is obligated to veto any bill that has a provision that he regards as unconstitutional. He may not, according to the ABA, sign the bill into law and use a signing statement to make clear that he will not enforce the constitutionally objectionable provisions. The ABA based its position on the proposition that, in the absence of a prior judicial say-so, the president has no authority to decline, on constitutional grounds, to enforce a provision of law in a bill that he has signed.

The ABA’s position cannot survive serious scrutiny. For starters, as I (and others) have pointed out, the proposition that the president cannot decline, on constitutional grounds, to enforce a provision of law, is a proposition that cannot be confined to provisions in bills that he has signed, but would necessarily extend to provisions in laws that continue in effect from before he took office (as well as in any laws enacted in an override of his veto). To state this point in terms of the constitutional text: The president’s duty (under the “Take Care” clause) to “take Care that the Laws be faithfully executed” does not distinguish between bills he has signed into law and other laws. Anyone who thinks that such a distinction nonetheless exists (perhaps on some fuzzy intuition that the president is estopped from disputing the constitutionality of any provision of a bill that he has signed into law) ought to explain why. Neither the task force’s report nor Fein’s letter makes any effort to argue the point.

Further, as I (and others) have explained, the Constitution is first among these “Laws” that the president must “take Care … be faithfully executed.” It logically follows that the president has a duty not to enforce provisions that he determines to be unconstitutional. Reasonable people can and do differ on how a president ought to make such a determination, including the weight that he ought to accord to Supreme Court precedent. But the position that the president, without prior judicial say-so, may never decline to enforce a provision that he determines to be unconstitutional is a distinct minority position – and one that the Supreme Court has certainly never embraced.

What does Fein have to say on this question? Nothing except his sideways observation about King James II and the English Bill of Rights of 1688. If the issue were whether the president may choose not to enforce whatever laws he prefers not to, this history would be relevant. But it has zero bearing on the actual question at issue: Is the Constitution among the “Laws” that the president must “take care … be faithfully executed”?

As to the ABA’s position that the president must veto any bill that has any provisions that he believes are unconstitutional: The Presentment Clause of the Constitution provides that a bill that has passed both Houses of Congress shall be presented to the president and that “[i]f he approve he shall sign it.” The pertinent question, therefore, is whether the president may “approve” a bill that contains provisions that he believes are unconstitutional. I have adopted and explained the traditional position: It is entirely proper for the president to sign a bill that has some provisions that are constitutional and others that he believes aren’t, for he may regard the latter (and any provisions inseverable from them) as void and therefore non-existent.

Let’s examine Fein’s response:

1. In his second paragraph, Fein falsely attributes to me the position that a president “may sign a bill he believes is unconstitutional.” I have never taken that position. My position, rather, is that a bill that has constitutional provisions is not rendered unconstitutional in its entirety merely because it contains one or more severable provisions that are unconstitutional. That happens also to have always been the position of the Supreme Court and, I am willing to bet, of nearly everyone who has ever addressed the question. So the “obtuseness” that Fein would have me impute to the Framers belongs to Fein.

2. In his third paragraph, Fein contends that the “plain meaning of the presidential oath” compels his position that the president must veto any bill that contains unconstitutional provisions. If Fein is making an actual argument here, I do not discern it. For the reasons explained above, my position on this question is fully compatible with the president’s oath to “preserve, protect, and defend the Constitution.” Indeed, it is striking that it is Fein who reduces the oath to a nullity when it comes to the president’s actual enforcement of laws.

3. In his fifth and sixth paragraphs, Fein falsely asserts that I have advanced some third presentment option, beyond signing or vetoing. On the contrary, I have explained why the signing option is appropriate.

4. In his fifth paragraph, Fein also claims that the traditional position “is indistinguishable [in substance] from an absolute line-item veto power.” This claim is both wrong and irrelevant. The claim is wrong because a provision of a bill that has been signed into law but that the president declines to enforce on constitutional grounds will be enforceable (to the same extent and subject to the same rules as other provisions) in an ordinary dispute in the courts – if, that is, the courts determine the provision to be constitutional – and will also be enforceable by subsequent presidents. The claim of identical substance is irrelevant because the defect in a line-item veto is purely procedural – a failure, as the Supreme Court put it, to act “in accord with a single finely wrought and exhaustively considered procedure.” By contrast, a president’s signing a bill into law fully comports with that procedure.

I have also explained why the ABA’s mandatory veto position, in addition to being wrong, is laughably unworkable:

Virtually every appropriations bill, for example, contains a legislative-veto provision … notwithstanding the fact that the Supreme Court recognized that mechanism to be unconstitutional more than 20 years ago. There is little reason to believe (and the task force does not argue) that if the president were required to veto any bill with an unconstitutional provision, Congress would stop inserting unconstitutional provisions. It is at least as likely that members of Congress would gamble that inserting such provisions would increase their negotiating leverage, or that they would use such provisions as poison pills for bills they disfavor.

How does Fein respond? First, with a barrage of originalist-sounding taunts, he falsely claims that I am arguing that the ABA’s position is wrong because it is unworkable. Granted, the fact that the position is unworkable provides reason for anyone inclined to adopt it to examine its merits with care, and the members of the ABA task force deserve condemnation and ridicule for their recklessness. But my explanation of the legal defects of the ABA’s position stands apart from my discussion of its unworkability.

Second, Fein ignores my actual argument about unworkability and, in perhaps his most bizarre contention, twice maintains that the history of the past 217 years shows that the ABA’s position is workable. One minor problem with this contention is that the ABA’s position has never been in effect during these 217 years. Fein’s history, in other words, shows only that the traditional approach that presidents have adopted and that I have advanced — and that he asserts would produce “constitutional chaos” — is workable (in addition to being right).

Fein also faults me for believing that the Constitution has an objective meaning apart from whatever five justices say that it means. I readily plead guilty to the charge and offer only two points in reply. First, the charge is an irrelevant diversion. Even the most ardent advocates of judicial supremacy — even those, in other words, who believe that a president is always or almost always bound to interpret the Constitution in accord with Supreme Court precedents — do not accept the ABA task force’s conclusions. They recognize, in short, that the practice of presidential signing statements on constitutional questions is compatible with the doctrine of judicial supremacy.

Second, I am reminded of Abraham Lincoln’s famous question, “How many legs does a horse have if you call a tail a leg?” Lincoln’s answer, of course, was “Four — calling a tail a leg doesn’t make it one.” In an application of this same logic, Lincoln refused to accept as binding precedent the Supreme Court’s decision in Dred Scott. Fein’s answer to Lincoln’s question, in effect, is “I don’t know until the Supreme Court tells me, and then I will supinely accept whatever it says.” I am content to be in the company of Lincoln rather than of Fein.

In the face of the consistent, intense criticism that the ABA report has received from both liberal and conservative scholars, no legal academic (apart from the members of the task force) has publicly defended the report. Fein, to his very limited credit, appears genuinely to believe that the report, which he clearly authored, got it right. But is it possible that Yale law school dean Harold Koh, Stanford law professor Kathleen Sullivan, Harvard law professor Charles Ogletree, former D.C. Circuit judge Patricia Wald, and the other signatories to the report still believe that (if they ever did)? We’ve heard enough from Fein. It’s time to hear from them.

Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO’s Bench Memos blog.


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