The President’s Non-enforcement Power


Are there any limits to the president’s discretion not to enforce a law? Conservative scholars think so. I say they’re wrong, and that we are witnessing the rise of what I call crown government in The Once and Future King. Where conservatives see a constitutional crisis, I see the inevitable working out of the pathological logic of presidential government.

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Are Signing Statements a Bad Thing?

I’ve always thought that the brouhaha over signing statements was much ado about nothing. During the presidency of George W. Bush, liberals discovered signing statements and decided they were bad and connected to a “lawless” executive enthralled by an idiosyncratic and dangerous theory of a unitary presidency. Except that signing statements as such had nothing to do with theories of the unitary executive, signing statements had long been issued by presidents across the ideological spectrum, and it was less that evident why signing statements in and of themselves were supposed to be dangerous. Unsurprisingly, the Obama administration has gone back to business as usual on many facets of executive power that were denounced by liberals just a few years ago, signing statements included.

But my esteemed colleague Mike Rappaport raises a more interesting question about signing statements.

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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.

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Presidential Power Rising: A Conversation with Frank Buckley

the once and future king

This next Liberty Law Talk is with Frank Buckley about his new book The Once and Future King: The Rise of Crown Government in America. Buckley’s book is a profound challenge to the script of presidential power that many conservatives have read from over the past decades. Our conversation focuses on Buckley’s argument that the American constitutional system has become dangerously unmoored from the congressional system of government that its ratifiers intended for it.

This conversation explores a close reading of the Constitutional Convention of 1787 to understand Buckley’s claim of how indisposed the members of that convention were to an executive power that would dominate the federal government. All of this matters profoundly, Buckley contends, because presidential forms of government are not, generallly speaking, well disposed to freedom. Parliamentary systems are in fact freer than their presidential rivals. Among presidential systems, America has been the exception in the high level of freedoms it has preserved.

There is, however, great reason to be worried, Buckley observes, that such a trend will continue for much longer. Power continues to accrue in the American presidency, and congress shows little willingness to reassume the full constitutional powers granted it to run the government.

Theodore Roosevelt and the American Political Tradition

Roosevelt 2

Who could be more American than former president Theodore Roosevelt? You might be surprised if you listen to the next Liberty Law Talk with Jean Yarbrough on her newest book, Theodore Roosevelt and the American Political Tradition. Winner of the American Political Science Association’s Richard Neustadt Award, Yarbrough’s book is an incredible study of Roosevelt as student at Columbia, as an accomplished historical writer, and as a statesman.

We might conclude, Yarbrough observes, that it is Roosevelt’s robust American nationalism, his vigorous spirit, and his environmentalism that produced our national parks which marks him as a prominent president. Indeed, his place on Mount Rushmore, where he sits with George Washington, Thomas Jefferson, and Abraham Lincoln, seems strange otherwise. Unless we count his prescient leadership of an emerging American nation departing from its decentralized past as worthy of remembrance, then it becomes difficult to find his great stature.

On this progressive legacy of Roosevelt, Yarbrough focuses much of her scholarly attention. Roosevelt publicly professed admiration for the American Constitution and the ideas of our founding, but departed from them as president, particularly in his second term. He embraced the administrative state before Woodrow Wilson. Roosevelt found no real limits to state power, and believed the federal government indispensable in the active management of the economy. He wanted presidential power to become more, an embodiment of the American people. Redistribution of wealth also had his support. In his New Nationalism speech he stated: “We [the government] should permit it [wealth] to be gained only so long as the gaining represents benefit to the community.” This is the Teddy Roosevelt we need a clearer understanding of, and Yarbrough has certainly provided it.

Constitutional Presidentitis: Is There a Shot for That?

It was March 27, 1809, three weeks into his presidency, and James Madison stood astride the world when he posted a letter to his predecessor Thomas Jefferson to inquire as to one particular secret of the office: “I forget whether the time piece in the sitting room [needs to be wound] monthly or weekly?”

That was then.  This being now, as recently as 1996 the White House employed a presidential attendant several days a week whose actual job—no, really—was winding clocks.  The late Senator Daniel Patrick Moynihan suggested that even Woodrow Wilson, champion of presidential government, might not recognize the office today:

A president who wrote and typed his own speeches is now at some removes succeeded by presidents who do not know the names of most of their speechwriters, much less of their lawyers, economists, statisticians, strategists, and yes, as of 1989 the White House demographer.  First the president got staff, then the staff got staff. (On the Law of Nations, 107)

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Friday Roundup, May 3rd

  • The May Liberty Forum is now available and features a great exchange among Greg Weiner, Stephen Knott, and George Thomas on the need for Congress to re-assume its full powers of deliberative government. Weiner asks if we are all Wilsonians now?

Neoconservatives, it should be said in fairness, brought the 28th President’s ideology through the front door in the plain light of day in the form of a moralized and expeditionary foreign policy.  What few noticed is what got simultaneously smuggled in the back: a constitutional philosophy that suppresses Congress, elevates the Presidency and replaces deliberation and an awareness of human frailty—once staples of conservative thought—with moral certitude and an emphasis on power concentrated in the daring man of decisive action.   Those who prefer simpler political pleasures—liberty is one, prudence another—have reason for concern.  For them, this is a season for a reassertion of legislative prerogatives, of the not merely equal but paramount role the Framers assigned to the most—indeed, the only—deliberative branch of government: Congress.

In his response essay “Congress, Heal Thyself” Stephen Knott responds with both historical and constitutional challenges to Weiner’s depiction of the supremacy and inherent moderation of Congress. George Thomas notes the complexity of presidential power in the Constitution and further wonders if the self interest of Congress in transferring its powers to the executive branch and avoiding full accountability for its decisions now outweighs its formal constitutional obligations

Today, we may ascertain more clearly China’s strategic intentions – the black box – by examining its current leader’s statements. Xi Jinping, before and after assuming the presidency of the People’s Republic this past March, made a series of speeches, the themes of which were a “China Dream.” “This dream can be said to be the dream of a strong nation. And for the military, it is a dream of a strong military,” Mr. Xi said in December 2012 on board a guided-missile destroyer. “To achieve the great revival of the Chinese nation, we must ensure there is unison between a prosperous country and strong military.”This is certainly an affirmation of Blumenthal’s assessment in the book; but the book itself reveals very little in the way of China’s strategic intentions, despite evidence in open sources.

  • Ken Masugi, long-time contributor to this site, will devote his considerable constitutional learning to Law and Liberty as a guest blogger for the month of May. Ken tells me that he has pursued failed careers in academia, federal and state government, and the think-tank world. He is adding blogging for libertylawsite to his list of accomplishments.