In Defense of Signing Statements

An interesting debate has broken out among liberals about the possibility of President Obama's issuing a signing statement on the Guantanamo restrictions. Adam Serwer writes,

There's a pretty clear ethical dilemma here for liberals. One signing statement doesn't turn Obama into Bush, who literally did this hundreds of times, but at this point closing Gitmo will require Obama asserting the kind of broad executive authority they found outrageous during the last administration. For what it's worth, I think Congress telling the President who he's allowed to try where is outrageous, and it never would have occurred during the Bush administration, where the  use of federal trials for terror suspects was the default option. But I'm also not sure how I feel about this decision, since it would validate the idea that the president can simply do what he wants no matter what the law says.

Spencer Ackerman responds that the issue presents no real quandary:

Doesn't seem like such a dilemma. For the statement to actually mean anything, Obama would have to commit to defying an act of Congress he intends to sign -- which is to say, break the law. There's no dilemma there: that's straightforwardly something to oppose. And since the proposed signing statement won't go that far, according to Dafna ("While the signing statement and the executive order would leave some room for Obama, they would do little to bring his policy goals to fruition"), putting it out is pointless. It would be quite the mortgaging of principles to go the signing-statement route and get nothing in return. . . . The bottom line here is that Obama lost an argument about Guantanamo Bay. He's on his way to losing a more extensive argument about civilian trials. Neither has to stay lost. But the right venue for picking that fight is in public, in Congress, in the open.

Adam Serwer, in turn, responds:

Charlie Savage, who literally wrote the book on this stuff, reports that during the Bush administration, the Office of Legal Counsel issued a memo that Congress couldn't restrict the president's authority over how to handle the transfer of detainees--then retracted it five days before the end of the second term. Bush asserted the "inherent" authority to disregard over 1200 laws during his administration. The question here is whether getting marginally closer to removing one of the last administration's most harmful legacies is worth strengthening another one.

All of this prompts me to say a few words in defense of signing statements, which have gotten a bum rap over the years. Let us start with a basic first principle: It is right and proper for the president to decline to enforce clearly unconstitutional statutes and to enforce other statutes only in circumstances where enforcement is constitutional. If Congress, say, required that the President intern all American Muslims, I would hope that any president would decline to do so. Generally speaking, the executive branch has a duty to defend acts of Congress, but only where a plausible argument for their constitutionality is available. Traditionally, the executive treats that concept broadly, and that strikes me as correctly reflecting its obligations to the legislature; I like the idea that the Obama administration defends Don't Ask Don't Tell in court even as it seeks the law's repeal in the legislature, for example. But the principle does have limits. The executive has his own duty to interpret the Constitution. To give force to a law that he honestly believes violates any reasonable interpretation of the Constitution does violence to that duty; it offends his very oath. There is one big exception, in my view, to the executive's duty to presume the constitutionality of a law unless no reasonable argument can be made in favor of it; that is the situation in which the executive itself is the victim of the purported unconstitutionality. In other words, the executive branch has no obligation to bend over backwards to let Congress infringe on its own prerogatives. The reason for this is simple: There is no one else to defend the executive if the executive won't defend itself. So in situations in which Congress is restricting executive action in a fashion that impinges on the executive's view of his own powers, the executive historically has taken a far less broad sense of its obligations to Congress. That is, it reserves the right to push back. This also seems to me correct. After all, if the executive took the same broad view of its obligations to Congress when its own powers are at issues as it does in other circumstances, it would amount to a unilateral disarmament in interbranch disputes that are almost never resolved in court but through inter-branch combat. So where the branches collide, a different rule applies: Each branch adopts and defends historic positions reflecting its own interests. Both of these situations inevitably require the executive branch to interpret newly enacted statutes. The executive, after all, has to determine whether enforcement is possible consistent with its view of the law and also whether some interpretation is possible that will enable enforcement in some circumstances. This sort of analysis goes on every day, and there is absolutely nothing objectionable about it. I would not want to live under an executive branch that did not analyze new laws to figure out what they mean and whether and under what circumstances their enforcement would offend the Constitution. The signing statement is merely the public expression of the results of that investigation. It is an openness measure, something to be cheered, not scorned. It is the executive branch's giving public fair notice of those provisions which either it cannot in good conscience enforce at all (very rare) or for which it has to adopt some narrowing construction in order to either preserve the statute's constitutionality or, more commonly, its own constitutional equities. Ironically, the law actually requires the solicitor general to notify Congress when he cannot defend an act of Congress. The signing statement serves much the same function. A huge amount of the anxiety over signing statements is really an anxiety over the substance of certain specific signing statements. That is, the Bush administration took an extremely bold set of positions concerning its own powers, and some of its signing statements reflected those positions (many more did not, but that's another story). These views rightly garnered controversy; some of them were outrageous. And largely because of Charlie Savage's reporting, that controversy attached to the signing statement itself. But that was always an analytical error. The signing statement itself is just a public expression of the legal positions and interpretation developed within the executive branch--and that would be developed whether or not they were expressed publicly. In and of itself, it is a good thing--and yes, I give David Addington credit for his apparent commitment to increasing the use of signing statements during the Bush administration. More to the point, no signing statement can be evaluated without reference to whether the legal interpretation it expresses is right or wrong. To say, as Ackerman does, that Obama shouldn't issue a signing statement about Gitmo because that would commit him to breaking the law ignores the key question: Does the law, in fact, violate the Constitution? If it does, why on earth would Ackerman want the president to follow it? And if he is going to be adopt an erroneously aggrandized view of his constitutional powers, isn't it better that he informs the public of that?