A Third Way: The Presidential Nonsigning Statement

Ross Wilson

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Introduction

In my Note, I propose an alternative to the presidential signing statement that has been hotly debated in the literature in recent years.  By re-examining an often-forgotten constitutional method for enacting laws, I conclude that when the President has certain doubts about the constitutionality of a bill Congress has presented, the President should instead allow the bill to become law unsigned and issue an accompanying nonsigning statement.

I.  The Signing Statements Controversy

The recent debate about signing statements fully engaged after President George W. Bush issued a statement in 2005 that appeared to repudiate anti-torture provisions in a bill he had just signed into law.  Although presidents since James Monroe had issued signing statements for various purposes, President Bush’s style of signing statements particularly rankled critics of the practice.

Bush routinely issued statements with vague, boilerplate language invoking his power as commander-in-chief or sounding in the unitary executive theory of the presidency.  Furthermore, his statements often appeared to directly challenge the validity of provisions he had just signed into law rather than construing the law’s purposes or its ambiguities.

Despite President Obama’s earlier criticism of such signing statements and a campaign pledge not to use them to invalidate enacted laws, Obama himself has issued a number of signing statements, purporting to make only “legitimate” and “well-founded” constructions of enacted laws.1  These claims came into question when Obama issued a signing statement in April 2011 announcing his “Presidential prerogatives”2 to ignore a law’s provisions that limited his ability to employ certain senior policy advisors.

In the debate over signing statements, some commentators have argued that the President cannot both “sign and denounce” provisions of a bill.  The Constitution, they argued, requires the President to either sign the bill in its entirety or veto it outright.  Under this view, purporting to construe away the plain meaning of a bill upon signing it into law is akin to a forbidden line-item veto.  This position emphasizes Supreme Court cases that suggest that the Constitution’s procedure for enacting laws is not subject to modification or innovation by either Congress or the President.

Other commentators have responded that signing statements are justified by the President’s important role in the legislative process.  Moreover, they argued, the fact that unlike Congress, the President can speak with a clear voice about the meaning of a law makes it all the more appropriate for the President to issue formal interpretations.  Making matters more complicated, proponents of signing statements often split on whether signing statements that directly reject provisions of laws are appropriate and even whether it is unconstitutional for the President to sign an unconstitutional law.  And, as Professor Laurence Tribe wrote, criticisms of signing statements themselves are misplaced because the true constitutional concern is whether the President in fact complies with the enacted law, not the criticisms he articulates about it.

II.  The Default Enactment Provision Has Been Overlooked

Without entering the fray on the debate over whether signing statements are appropriate, I submit that courts and commentators have brushed past the Constitution’s provisions too quickly in reaching conclusions about the President’s authority.  One often reads citations to dicta in INS v. Chadha3 that the Constitution provides a “single, finely wrought and exhaustively considered, procedure” for enacting laws, in support of the mistaken proposition that the President must either sign or veto any presented bill.  Even more misleadingly, courts and commentators have starkly declared that the only possible ways for a bill to become law are by the President’s signature or by Congress’s so-called “veto override.”  In the flurry of commentators’ bald assertions about the President’s indispensible role in lawmaking and courts’ eagerness to conclude that the enactment procedure is ossified into a binary sign-or-veto choice, jurists have overlooked a third way offered by the Constitution’s text itself.

Article One, Section Seven of the Constitution provides that “[i]f any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it . . . .”4  Thus, the Constitution’s general rule is that, if the President does nothing, the bill becomes law in less than two weeks.  The only exception to this rule occurs when Congress adjourns soon after passing a law such that the President does not have the full ten-day period to consider the bill.  There, the bill does not become law.  Oddly, it is only this exception that has received any significant attention over the years, including in a line of cases litigating what kind of “adjournment” is sufficient to trigger the exception.  While this exception is well known as the “pocket veto,” the general rule that an unsigned bill automatically becomes law after ten days has no popular name.  For convenience, I refer to it here as the “default enactment” because the bill becomes law by default, without the President’s signature.

This default enactment provision can be especially useful to a president who is presented with a bill that he believes in general should be law but contains some minor provisions that might raise constitutional problems.  There, I contend, the President should allow a default enactment and issue a nonsigning statement explaining the reasons for doing so.

In my Note, I suggest some factors for determining whether a bill’s provisions are insignificant enough to not trigger the President’s potential duty to veto the law because it is unconstitutional.  In essence, the President should assess (1) how severe the constitutional concerns are regarding the provisions in question and (2) how central those provisions are to the bill’s legislative scheme.  Several sub-factors can guide the severity analysis, including the clarity of the violation (accounting for Supreme Court precedent), the availability of reasonable constructions to avoid a constitutional conflict, the likelihood that an unconstitutional application will arise, and whether the provision directly challenges the President’s authority.  The centrality analysis simply involves a candid assessment of how germane or important the provision is to the overall bill.  In summary, if this sliding-scale analysis shows that the provisions raise only minor constitutional concerns that are ancillary to the bill’s overall scheme, then allowing a default enactment would be permissible.

The possibility of issuing a nonsigning statement to register constitutional concerns about a bill has garnered virtually no attention in the academic literature, aside from a fleeting reference and footnote in a 1998 book by Professor Christopher May.5  However, Presidents Richard Nixon and George H.W. Bush (Sr.) each issued nonsigning statements based on constitutional grounds.  Nixon objected to a bill that gave the federal courts jurisdiction over certain matters related to the Watergate investigation, writing, “I cannot give the sanction of the executive branch to this bad legislation by signing it into law; neither, in the present circumstances, will I veto it.”

President Bush issued two nonsigning statements: one on a bill banning the burning of the American flag and another on a bill that “limit[ed] the amount of advertising that broadcasters may air during children’s programming.”  In each case, Bush based his objections on the First Amendment, though in principle he actually supported the bill prohibiting flag burning despite his constitutional concerns.  Nonetheless, he was correct in his constitutional analysis of that bill: in 1990, the Supreme Court held that it violated the First Amendment.

Finally, at least one governor has also issued a constitutionally based nonsigning statement.  In 2005, Indiana Governor Mitch Daniels wrote: “My decision not to sign reflects my degree of uncertainty as to the constitutionality of this bill . . . .” Like Nixon and Bush, Daniels received little or no attention for his twist on the more common signing statement, nor was there any public outcry that the statements were themselves constitutionally objectionable.

III.  The Advantages of the Nonsigning Statement

The pairing of a default enactment with a nonsigning statement could be repurposed from a rare procedural anomaly into an innovation that would meet the problems that have recently arisen regarding signing statements.  Most prominent among the advantages of the nonsigning statement is that it is more consistent with the Constitution’s structure than signing statements.

First, nonsigning statements about constitutionally questionable provisions do not raise the problems related to the internal inconsistency of comparable signing statements.  Rather than concurrently signing a bill into law and opposing its provisions, a nonsigning statement allows the President to be clear and consistent about his position on the bill by explaining his reservations about the bill and also why he will allow Congress to enact it without his endorsement.  Like a signature, which is the constitutional signal that the President “approve[s]” the bill, and like the “return,” which signals that he “disapprove[s]” of the bill,6 the nonsigning statement is an action consistent with the President’s position on the bill—one of doubt, uncertainty, reservations, but acquiescence and lack of affirmative opposition.

The nonsigning statement also allows the President to avoid giving the executive imprimatur to a constitutionally suspect bill.  If appropriate, it can also position the President to plausibly oppose the provision if it arises in subsequent litigation.   Indeed, by disclaiming responsibility for the law, the President’s refusal to sign may even serve a democracy-reinforcing function by raising his concerns for further democratic deliberation in the legislature and consideration by voters.

Although some have argued that doing nothing to stop an unconstitutional bill from becoming law is ducking the President’s responsibility to defend the Constitution, doing so where the offending provisions are ancillary and of only minor concern (as described above) is unlikely to raise this criticism.  Moreover, nonsigning statements would likely have built-in political consequences that would militate against their abuse.  Thus, a president who regularly declined to sign or veto might suffer consequences for perceived indecisiveness.  Legislators who vote “present” or who skip votes are well acquainted with this criticism.

Furthermore, declining to render a judgment on the constitutionality of the law at its outset is certainly consistent with the approach of the U.S. Supreme Court, the self-styled “ultimate interpreter of the Constitution.”  The Court regularly employs methods of “judicial minimalism” to avoid striking down laws as unconstitutional.  Among these are denials of certiorari, deferential standards of review, narrowly deciding only the legal issues absolutely necessary to resolve a case, and invoking the doctrines of ripeness and mootness.  Like a court, the President may wish to reserve judgment on the issue until there is a true controversy about a constitutional violation rather than declaring a position on its constitutionality before it has been applied.  Until then, flagging the question for further democratic deliberation may be the more prudent course.

Issuing nonsigning statements could also offer the President some new political tools.  For example, issuing a nonsigning statement when a supermajority of Congress has passed a bill could avoid the potential embarrassment of a subsequent veto override.  By doing so, the President could register concerns without inviting Congress to directly repudiate his veto.

But the nonsigning statement could be more than merely a defensive tool.  It could serve as a bargaining chip in the President’s negotiations with Congress over the content of legislation. For example, the President might pledge not to sign any bill that contains a particular provision, which may motivate Congress to make a desired change, whereas a firm veto threat might risk undermining the bill’s political viability.  Also, a threat to not sign forces Congress to pass controversial or constitutionally doubtful legislation at least ten days before adjournment.  Otherwise, the nonsigning statement would trigger a pocket veto rather than a default enactment.

This exchange could strengthen and encourage the salutary negotiation process between the President and Congress about the content of legislation.  Instead of feeling constrained by a binary choice between veto and signing, the freedom to use a nonsigning statement could encourage the President to engage Congress more on both policy and constitutional questions.  This dynamic would reflect the Constitution’s role for the President in the legislative process, including “recommend[ing] . . . Measures,” giving “Congress Information of the State of the Union,” and signing or returning bills that Congress presents to him.

Finally, public understanding that the nonsigning statement is a serious option may alter expectations about presidential treatment of bills in ways that prevent the temptation for executive overreaching that can occur in the context of signing statements.  No longer could a president claim in the midst of a congressional session that he was forced to sign an important bill despite certain undesirable or unconstitutional provisions.  Instead, the public could expect the President to abstain from signing and issue a statement detailing the relevant concerns.

In contrast with the signing statement, the President would be unlikely to use nonsigning statements routinely to make expansive claims of power because the President sustains political costs for doing so.  Instead, the President is likely to use such statements only when making an expansive power claim is worth the cost of doing so.  Consequently, unlike the controversial signing statements discussed above, nonsigning statements would likely not take the form of ritualistic invocations of boilerplate language.

Conclusion

In the ongoing debate about presidential signing statements, commentators have narrowly focused on the dichotomy between the President’s options to sign or veto a bill, while ignoring the option to allow the bill to become law unsigned—by default enactment.  Nonsigning statements are more constitutionally consistent than signing statements, militate against overbroad claims of power, and give the President political tools that encourage engagement with Congress on policy.

Acknowledgments:

Ross A. Wilson, Cornell Law School, 2011.

Copyright © 2011 Cornell Law Review.

This Editorial is based off Ross A. Wilson’s Note, Ross A. Wilson, A Third Way: The Presidential Nonsigning Statement, 96 CORNELL L. REV. 1503 (2011).

  1. See Barack Obama, Memorandum on Presidential Signing Statements, 2009 Daily Comp. Pres. Doc. 138 (Mar. 9, 2009).
  2. Statement on Signing the Department of Defense and Full-Year Continuing Appropriations Act, 2011, 2011 Daily Comp. Pres. Doc. 263 (Apr. 15, 2011).
  3. 462 U.S. 919, 958 (1983).
  4. U.S. Const. art. I, § 7, cl. 2.
  5. See Christopher N. May, Presidential Defiance of “Unconstitutional” Laws: Reviving the Royal Prerogative 40, 80 tbl.5.2 (1998).
  6. See U.S. Const. art. I, § 7.

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