President Obama’s Decision to Sign and Not Enforce

Recently, President Obama signed a bill into law and then announced that he would not enforce (or at least feel bound by) a provision in the bill. Once again, President Obama has aggressively asserted executive power – in a way that prior Presidents have, but that he and Democrats criticized before he became President.

The law prohibited admittance to the U.S. by representatives to the United Nations determined to have “engaged in terrorist activity” against the U.S. or its allies. “Obama, in a signed statement attached to the measure, warned the legislation curtailed his “constitutional discretion” and that he planned to treat the law as ‘advisory.’” Obama could have vetoed the law, but he chose to sign it and then not regard it as legally binding.

There are several positions that one can have – based on the Constitution’s original meaning – in a situation where the President is presented with a bill that contains an unconstitutional provision.

1. One might believe the President has discretion to sign the bill and then to not enforce the unconstitutional provision. This appears more or less to be the position of Presidents of both parties.

2. At the opposite extreme, one might argue that the President has a duty to veto laws that he believes are unconstitutional. This is Sai Prakash’s position.

3. A less extreme position is that the President would normally have a duty to veto a law that he regards as unconstitutional, but this duty can be outweighed by other obligations. For example, the President might believe that the bill implements some constitutional obligation, such as the constitutional requirement to provide equal protection of the laws and that this obligation can outweigh the obligation to veto the unconstitutional bill. This is Will Baude’s position.

4. Another intermediate position – my position – is that the President can never do what President Obama did in this case – sign a bill and then not enforce a provision in the bill. One might defend the duty of the President to veto laws that he regards as unconstitutional, as Sai Prakash does, but I am not certain of the originalist case for this. One might argue, after all, that the President (and the Congress) is not obliged to veto (or vote against) such bills or not categorically obliged to veto them. In other words, one might argue that the President (and the Congress) does not have the same categorical obligation to enforce the Constitution as the judiciary does.

But a President cannot argue that he is not required to follow the Constitution by vetoing the bill, if he also argues that he has the power to not enforce unconstitutional statutory provisions. The basis for not enforcing statutory provisions is that the President is obligated by the Constitution to give it priority over statutes. But if that is his position, then he cannot argue that he does not have to veto an unconstitutional bill. Hence, a President can never sign a bill and then not enforce a provision in the bill he just signed.

Will Baude’s argument that the President’s obligation to veto a bill that contains an unconstitutional provision can be overridden does not, in my view, allow the President to sign a bill and then not enforce an unconstitutional provision.

The Constitution often imposes obligations that must be implemented in accordance with other constitutional requirements. For example, the Equal Protection Clause might require the President to take action, but that action might require statutory authority. In that case, the President could not fulfill his obligation if Congress does not provide the statutory authority. Similarly, if the President must veto a bill with an unconstitutional provision, then his other obligations under the Constitution cannot override his obligation to veto the bill.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. kldimond says

    Does the Constitution allow for signing statements, or does it limit the options to: signing, allowing passage by not acting, and veto?

    Does the Constitution require the Executive to enforce passed laws?

    Are there provisions in the Constitution that are at odds with provisions of statute and regulation?

    Obviously, these are rhetorical questions.

    All members of Congress, all judges and justices, all enforcers and of course the Executive affirm or swear to uphold the Constitution against not only foreign enemies of the CONSTITUTION but also domestic ones.

    I would contend that those who support illegal laws by wresting the meaning of the written Constitution or ignoring it become enemies of the Constitution. Thus, it’s my contention that each member of Congress has an obligation to vote against such bills, the Executive has same, and the judiciary are not alone in this obligation. This helps keep our enforcers, also sworn to same, out of trouble for “just following orders.” …if it works.

    It isn’t working.

    I would contend that it is the job of the Executive who feels that a statute is in violation to veto it. If it passes over his/her veto, it is his obligation to take the matter into the court–not some poor schmuck destroyed by illegal statute or regulation to come up with millions to try it locally then in the appellate and then, finally, at the Supreme Court, if one can even get that far. To me, that is what a US AG is for. I would contend that if the court tells the veto-thwarted Executive that he has no standing, it’d better have a darned good reason.

    This, of course, brings into question the whole concept of regulation. Where is the check on that? Oh, wait; it’s illegal anyway. It’s the Executive acting without real authorization of Congress. They euphemistically call them rules, but if it walks like a law and talks like a law…

    Congress has the obligation to review statutes and repeal them if they are in violation of Constitutional provisions. That ain’t happening.

    I also think that “impeach” should not be the unutterable epithet that so many seem to regard it. This applies to all branches.

    It all starts with the obligations taken under the Oath of Office. If one is sworn to uphold and defend the Constitution, I don’t know how that can be done while defying its provisions.

  2. Anonymous says

    The equal protection clause can never require congressional action for the president. If the statute passed by congress says “give x benefit to y subgroup” then that is unconstitutional and should not be enforced (not that we need to wait for congress to give x benefit to everyone).

  3. gabe says

    ” In other words, one might argue that the President (and the Congress) does not have the same categorical obligation to enforce the Constitution as the judiciary does.”

    Who says so?
    Does he not take an oath to ‘preserve. defend and protect”? If that means anything it means that there is an assumed, if not explicit, presumption, that the Executive WILL behave accordingly – i.e. he will veto that which he believes to be unconstitutional. It is quite beside the point whether or not any of his predecessors lacked the moral / political courage to behave properly and conscientiously but instead “passed” it off to the court (see Keith Whittington’s book on Judicial Supremacy); the obligation still remains.
    Or are we too going to acquiesce to the Courts arrogation of “supreme” and final power over the constitution. Let us not make ourselves so clever that we lose the ability to understand plain language (not to mention the intent of the Founders who saw all branches as bulwarks for liberty).

    • gabe says

      Oops, I forgot to say what i originally intended.

      Obama is correct, or may very well be in this sense.
      To the extent that a congressional action impinges upon the Executive’s power to “receive ambassadors”, the Congressional action is without force or foundation.
      Clearly, the “receive” power resides in the Executive not Congress. It is at the discretion of the Executive to receive an ambassador. So too, it is implicit in such a power to receive that the Executive may also “not” receive an Ambassador. Without such a negative capability, the power is rendered ceremonial. One suspects that was not the intention of the drafters.
      That being said, what then would have been a more prudent course of action?
      Simply this: Veto the bill and announce that the Executive has not intention of accepting this representative from the Glorious Islamic Republic of Iran.
      No crisis! No constitutional debate! No politics!
      However, that probably would not serve the interests of either the Congress (and its media starved denizens) who have seized an opportunity to appear tough and strong on defense / anti-terror, etc nor the Executive who would not then have the opportunity to pronounce upon the illegitimate encroachment of Executive power.

      Sadly, all we witness is an attempt to provide proper posturing for the media.

      Oh well, I suppose it is better than having the Congress or Executive actually forge a sensible approach to the Glorious Republic.

  4. says

    Mike, I certainly agree w/your last paragraph. But it reminds me that you are not consistent in your analogies. I am going to insert your different analogy of “incorporation” of the BOR’s into the 14th Amendment by the judicial branch, in this essay blog — for your analyses.
    The Constitution often imposes obligations that must be implemented in accordance with other constitutional requirements. For example, (the First Amendment Religious Clause is a “prohibition” of law making. To add any words, or subtract any words from this enumerated clause requires “repeal”
    of the “prohibition”. You have never stated this in your reply. What you have said is, “…there is a strong case for finding incorporation under the Privileges or Immunities Clause. I am therefore generally supportive of it”. Since when has the Privileges or Immunities Clause repealed the “prohibition” clause of law making of the First Amendment Religious Clause? In that case, (the Supreme Court) could not fulfill (its) obligation if the Amendment process does not provide the “repeal” authority. Similarly, if the (Supreme Court) overrides a constitutional provision, then their other obligations under the Constitution cannot override (the “prohibition” clause).
    I know you don’t particular care to reply to me – but you should – to the other readers, of inconsistencies in your analogies.
    Respectfully, John

  5. nobody.really says

    1. Does the President have free speech rights, including the right to say legally faulty things? I am not aware of any legal problems with making signing statements. Rather, the problem arises from acting in an unconstitutional way – regardless of the signing statement.

    2: Constitutional text. Sec. 7, clause 2 (the Presentment Clause) states —

    Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated….

    The mandatory “shall” language suggests the President must sign bills he approves of, and must veto bills he does not. Alas, there’s no instruction when the President both approves and disapproves of aspects of the same bill.

    As Rappaport suggests, I see nothing saying the President must veto things he finds unconstitutional, provided he otherwise approves of the bill. In this respect he has no greater constraint than Congress. And it’s arguably fair that if Congress gets to pass populist but unconstitutional bills during an election year, the President gets to play the same game. Let the courts play the role of Bad Cop; they’re not standing for election.

    3. Executive discretion. I suspect Congress has passed laws limiting undocumented immigration, and delegated the enforcement to the Executive Branch. Does it therefore follow that Obama has a Constitutional duty to expend the entire treasury hunting down illegal immigrants until the law’s terms are fulfilled – lest he be accused of failing to faithfully execute the laws? Or, given the myriad objectives established by Congress, does the Executive have discretion over which laws to spend resources on – and, by implication, which laws to withhold resources from enforcement?

    4. Finally, does Rappaport argue that once a President signs a bill, he must enforce it no matter what perspective the President later acquires regarding the law’s constitutionality? Does Rappaport embrace the Seinfeld rule of “No hugging; no learning”? Or is hugging permitted?

  6. gabe says

    “Let the courts play the role of Bad Cop; they’re not standing for election”

    And that pretty much explains why we have gotten into such a mess.
    Executive and Legislator ought to be somewhat more cognizant of their own role in determining the “constitutionality” of specific legislation rather than hiding behind the unaccountable Court.

    “Does Rappaport embrace the Seinfeld rule of “No hugging; no learning”? Or is hugging permitted?”

    Does Nobody suggest that with hugging comes learning? I would question such an assertion. Proggies just love to hug everything yet they seem remarkably un-susceptible to learning. something is amiss here, Watson!!!

      • gabe says

        No, I would rather have the rye bread. do you remember that one!

        But seriously, don’t you think it would have been better if Obama had simply vetoed the bill and then announced that he had no intention of permitting this miscreant into the US – I mean even politically it would be seen as an effective move and add stature to the Office and his at times questionable foreign p[olicy inclinations.

        take care
        and I’ll have cream cheese on my rye bread.


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