[h/t Aaron Bludworth]
November 29, 2015
"Not all opinions are created equal. Some are a great deal more robust, sophisticated and well supported in logic and argument than others." Douglas Adams
[h/t Aaron Bludworth]
Jason Kane is a recovering rock star and an attorney in Salt Lake County. He is an occasional contributor to Publius Online.
In the days leading up to the Supreme Court oral arguments on the constitutionality of President’s Obama’s signature health care law, there was no end to the media speculation about which conservative leaning justice(s) would leave the dark-side and vote to uphold Obamacare. We were treated to a barrage of statistics touting the popularity of Obamacare, reminders that Republicans had supported mandates in the past and other specious arguments that have no bearing on the constitutionality of the law. Self-assured Progressives, it seemed, had little concern that socialized medicine was in any danger.
After one day of arguments that didn’t go particularly well for the government, the Obamacare cheerleaders seem to be in full back-peddle mode. One blog post at the Daily Beast is especially entertaining, arguing that if the individual health insurance mandate is struck down, it will actually be a boon to Obama’s reelection. Obama would no longer have to defend the controversial law and be free to run on his other spectacular achievements, like killing Bin Laden and… killing Bin Laden. This line of thinking, of course, flies in the face of common sense and everything we know about politics. Losing is bad for business and tends to embolden the opposition. In this particular election year, it also happens to help rid Romney of much of the health care baggage that continues to poison the well with many Republicans.
To be sure, I think it is premature to start dancing on the grave of Obamacare. But the tough skepticism exhibited by Justice Kennedy, the left’s only hope in a 5-4 decision, gives Obamacare proponents good reason for concern. We cannot foretell the outcome based on oral arguments alone, though they do seem to hold particular weight in this case. At the very least though, the seeds of self-doubt have been sewn among the Progressives. We should allow ourselves savor this rare phenomenon while it lasts.
Today we celebrate President’s Day in honor of, ostensibly at its roots, the birthdays of George Washington (February 22) and Abraham Lincoln (February 12). Would either have been elected if they were on the ballot today? One was part of the 1%, the other trod on the constitution…would they have survived any primary process, today?
Washington was austere, distant, and a far cry from the “personable” man who so many Americans seem to want in their highest elected official…you know, someone they could get a beer with. Washington’s wealth and social position, besides putting him well outside of that class, was in many respects, the incentive and grievances that drove him to seek the post of commander-in-chief of the continental army in the War of Independence. His reasons for fighting were not solely liberty, but in many respects tied to the confiscation of his frontier property by a distant British government. He was, in those days standards, part of the 1%, taking full advantage of the benefits of slavery, a military career, and real estate speculation to gain wealth far above the average American. (Newt Gingrich would have pilloried him in the South Carolina Primary with super PAC ads questioning the source of his wealth while Rick Santorum would have questioned whether he believed in God since he didn’t attend church regularly…and lets not even start with Thomas Jefferson).
Lincoln, on the other hand, was an adept story teller, a master of the English language, and the diplomatic leader that Doris Kearns Goodwin depicts in her 2005 “Team of Rivals” who could unite disparate and disagreeable personalities to a common cause. He was someone that people could, and did, like. That said, he was no constitutional conservative. He spent much of his first term ignoring what modern day Tenth Amendment activists trumpet as states rights, ignoring habeas corpus, and ending slavery by executive order…all actions that were, at the time, unconstitutional. Ron Paul would be righteously indignant.
Yet, without a doubt, these two men are widely regarded as our greatest presidents. One gave birth to the union and is the “Father” of our country. He was, and is, “[f]irst in war, first in peace, first in the hearts of his countrymen.” The other was “shrank from no responsibility[,]” even when that responsibility meant holding the country together at a time when popular will and constitutional interpretation worked against him. The fought, each, for union and for the liberty and the rights and the idea that this country is, the great experiment that was first in this world: a government for and by and of the people.
Would we have elected such men today? Would either have survived the whims and fickle of a twenty-four hour media and an American Idol attuned generation?
Would George Washington or Abraham Lincoln ever become president?
Remember this one? This case deals with series of laws passed in Arizona in response to the failure of the federal government to enforce federal immigration laws. As summarized by the ACLU in September:
As part of a comprehensive overhaul of the immigration laws, Congress adopted a series of carefully calibrated measures, beginning in the mid-1980s, to enforce the federal bar on hiring unauthorized immigrant workers while preserving the civil rights of immigrant and minority communities. Unsatisfied with these efforts, Arizona adopted its own law imposing far more severe sanctions on employers who hire workers that Arizona believes are unauthorized to work, and requiring employers to participate in a federal employment verification program that the federal government chose not to make mandatory.
The question of the case is whether Arizona has the power to enact certain laws through the “licensing” provision of the federal law. Yesterday, the Supreme Court held oral arguments on the case (a transcript is here).
As Josh Blackman notes, Justice Scalia went straight to the licensing issue during the arguments and “remarked that the “through licensing” provision is really the only avenue the federal government left open for the states to deal with immigration.” Because no one thought, when Congress enacted the federal law, that the federal government would fail to enforce the law, Arizona was left with only limited means of remedy.
JUSTICE SCALIA: That would be remarkable
only because nobody would think that with this scheme in place, the Federal Government would not enforce it. Of course no one would have expected that. But what Arizona says has occurred here is that the scheme in place has not been enforced, and Arizona and other States are in serious trouble financially and for other reasons because of — of unrestrained immigration. And therefore, they had to take this very massive — I agree this step is massive, and one wouldn’t have expected it to occur under this statute, but expectations change when the Federal Government has — has simply not enforced the immigration restrictions.
The Justices proceeded to debate, and discuss, the meaning of the word “licensing” and whether this really was the only outlet for Arizona to act. Check out a good summary and a few choice clips from the transcript at Josh Blackman’s blog.
Justice Kennedy, consistently a swing vote on the court, remarked that the state’s position–requiring that the voluntary federal E Verify program be mandatory–seemed to be at odds with federal policy. “You’re making it mandatory. That is almost a classic example of doing something inconsistent with the federal requirement.”
Apropos: at least one of the Justices did not seemed concerned with the licensing issue. Justice Sotomayor seemed more concerned with the issue of federal preemption. (She also made a faux pas when she referred to “illegal aliens,” quickly correcting herself with “undocumented aliens,” as she had used in previous opinions.)
Part three of my look at William Baude’s “Signing Unconstitutional Laws” (86 Ind. L. J. (forthcoming 2011))… today we are looking at the risks associated with signing unconstitutional laws.
What are the risks? Even if, enlightened as he may be, the President signs the law with no intention of acting or executing it, there is no promise that the law will not be acted on by others, future Presidents, private actors, or perhaps the judiciary. Once on the books, Baude says, it is “a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” (Korematsu v. United States, 323 U.S. 214 (1944) (Jackson, J., dissenting). Baude cites the examples of Miranda v. Arizona (384 U.S. 436 (1966)) and Amore v. Novarro (Amore v. Novarro, ___ F.3d ___ (No. 08-3150) (2d Cir., June 22, 2010)) for examples where courts followed their own reading of the law “on the books,” regardless of the perception and belief of the President on the law’s constitutionality. So signing a law, however much the President does not believe it unconstitutional, presents very real risks of future violations of the Constitution by signing the law.
Risks aside, when is a bill unconstitutional? Is it even a problem if the bill goes into statute unconstitutional?
There are situations, Baude argues, where there are constitutional obligations on the President to sign and enact a bill, however unconstitutional. In reality, there is no conflict between a law’s passage, its subsequent ruling as unconstitutional, and its remaining “on the books.” The statutes affected in United States v. Eichman (496 U.S. 310 (1990)) (overturning flag burning prohibitions) and United States v. Booker (543 U.S. 220 (2005)) (holding statutes on sentencing guidelines to be unconstitutional) are both still “on the books” in the federal statutes, despite Supreme Court action to overturn their constitutionality. Indeed, Baude states that there really is no problem with passage of a law that may later, in different situations, be found to have unconstitutional applicability. He is merely putting the question of constitutionality aside until a later day.
And this is where we get to “signing statements.” Signing statements are the President’s way of making known his views on the law he is signing. It allows the President to warn parties about his view of how the law is to be or should be executed, especially within the executive branch. For this reason, Baude seems to suggest that a signing statement allows the President the flexibility to sign a bill that has parts both constitutional and unconstitutional. In essence, as Baude summarizes, it is as if a President were saying:
“[N]ow, to be clear, Chapter Two of this law is unconstitutional, and I am signing it only because I am confident that I and my successors will never enforce it, and the courts would disregard it in the unlikely event that it was enforced. Moreover, I am only willing to take the risk of placing it on the books because Chapter One does something very important—indeed, it helps me fulfill some of my other constitutional duties.” “now, to be clear, Chapter Two of this law is unconstitutional, and I am signing it only because I am confident that I and my successors will never enforce it, and the courts would disregard it in the unlikely event that it was enforced. Moreover, I am only willing to take the risk of placing it on the books because Chapter One does something very important—indeed, it helps me fulfill some of my other constitutional duties.”
At this point, Baude begins to shift to evaluating the Constitutional obligations–the duties–under which the President works when he evaluates whether to sign a bill, some of which duties may even require the President to sign a bill he deems to contain unconstitutional aspects. “Our Constitution is mostly a charter of structural rules and negative liberties,” he says, generally limiting government, but not requiring it to affirmatively take action, with some exceptions, including bills that may be necessary to preserve and protect the Constitution itself.
This is not the same thing as suggesting that it is okay to violate the Constitution in times of great necessity. Remember, there is no don’t-sign-unconstitutional-bills-clause, so signing an unconstitutional bill does not violate the Constitution per se. The point of this analysis is to explain why a sensible President would ever have a constitutional reason to sign an unconstitutional bill, especially in light of the constitutional risks entailed by doing so.
When the Voting Rights Act of 1970 was passed by both Houses of Congress, it thus contained a number of provisions enforcing the Fifteenth Amendment, and a voting-age provision that exceeded Congress’s enumerated powers. With no line-item veto, the President had to either sign it into law and thus put his name to a provision that he thought violated the Constitution, or veto it and thus permit violations of the constitutional rights of thousands of black voters.
President Nixon signed it, anyway, the Supreme Court struck down the unconstitutional portion, and the next year an amendment to the Constitution was passed solving the problem. “President Nixon is an unlikely exemplar of presidential constitutionalism, but this time he nailed it.”
Other appropriations bills he signed through this period included similar reporting requirements that he thought unconstitutional and that he similarly pushed to the wayside. Whether he was correct as to the level of risk to national security, President Bush was correct, by Baude’s measure, to balance the importance of the law for upholding his constitutional duties against the risk of putting the unconstitutional provisions on the books.
With the assumption that there are laws that a President must, categorically, veto, what kind of criteria exists for a President to justify signing a law containing unconstitutional provisions? Baude suggests that such a law must be partially constitutional and partly required by the President’s duties. He must consider the size of the risk and the magnitude and importance of the possible violations. It’s a dynamic analysis, and in the end, regardless of the choice to sign or veto, the President must be prepared to mitigate the results. His is the duty to uphold the Constitution, first and foremost.
In conclusion, Baude quotes the always memorable Justice Scalia: “The Constitution . . . is not an all-purpose tool for judicial construction of a perfect world.” And, to take the inverse, Baude warns us not to underestimate the Constitution, either: “We must be just as wary of the reverse–assuming that yesterday’s formalisms are inadequate for today’s government.”
It’s an interesting proposition, and perhaps one that bears consideration. The President has obligations, as well as his often recited limits.
There is also a broader lesson about what we remember and what we forget. We are all too eager to remember the long list of things the President must not do. We more easily forget that there are many things that he must do, and even more after the Reconstruction amendments. Our Constitution does not create a passive President. We should not make him into one.
Continuing my look at William Baude’s “Signing Unconstitutional Laws” (86 Ind. L. J. (forthcoming 2011))…
We had just finished look at the summation of why Baude did not believe the act of signing unconstitutional laws was in itself unconstitutional. In reviewing the arguments of those opposed to signing such laws, Baude states that the reasons are generally pragmatic, not constitutional:
All of these arguments share a different set of common premises—that signing unconstitutional laws is justified not on formalist grounds, but practical ones. And when the authors explain the limits of the President’s power to sign unconstitutional laws, it is in functional or practical terms, not constitutional ones—an approach echoed by many others who have abandoned the hard-line view. Moreover, none of them argue that the same circumstances that allow the President to sign unconstitutional laws require him to do so.
In response, Baude proposes that the premises are wrong. No “do-not-sign-unconstitutional-bills” clause exists, signing one can be risky, but necessary, and the considerations that go into signing them are constitutionally based. However, while there is not any clause that forbids signing of unconstitutional bills, there are provisions which require caution in signing laws.
Looking at the text of the Constitution, Art.1 Section 7 details the process of a bill becoming a law and is known as the “Signing and Veto” clause. The President is able to “approve” or state “Objections,” but nothing more is said about the basis upon which he should evaluate the law.
In contrast, Art. II, Section 3 requires that the President to “take Care that the Laws be faithfully executed” and to “faithfully execut[e]” the Constitution, which is part of the “Supreme Law of the Land.” Here, Baude argues, is where the President is allowed the flexibility to sign unconstitutional laws, but refuse based on duty to enforce them as conflicting with the Constitution. On the books, but not treated as law by public officials, the “Take Care” clause is upheld.
The Presidential Oath supports this further. Says Baude:
That leaves the President’s obligation to “preserve, protect and defend,” the opposites of which are allowing something to be destroyed or damaged. But how does an unconstitutional law damage the Constitution? The Constitution, after all, is supreme, and preempts ordinary laws that are repugnant to it. At a practical level, the Constitution might not be preserved if unconstitutional laws are widely enforced; but the practical problem is addressed by ensuring that the unconstitutional law is not executed. And at a more metaphysical level, the Constitution takes care of itself automatically.
Constitutional structure supports this proposition. A legislative act that is unconstitutional is not law, and is therefore void and to be ignored by the federal government. (Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803); see generally Kevin C. Walsh, Partial Unconstitutionality, 85 N.Y.U. L. REV. 738, 755-777 (2010) (discussing and defending this view). In other words, the President need not enforce or veto because the Constitution has already vetoed them.
Baude also discusses, at some length, the impact of the phrase “to the best of my Ability” in the Presidential oath and its role in allowing leeway to the President in executing laws that he may or may not realize are constitutional.
Next time: the risks in signing unconstitutional laws.
What I’m reading right now, continued: William Baude “Signing Unconstitutional Laws” 86 Ind. L. J. (forthcoming 2011).
Recently, I’ve heard a lot of talk, primarily from the Tea Party wing of the political right, about how law makers should not pass into law legislation that is unconstitutional. I know of at least one candidate who made this his main campaign promise and the pillar upon which he removed an 18 year incumbent in the race for one of Utah’s U.S. Senate seats.
With this context, I ran into Baude’s article, referenced in a blog. I won’t say I agree with it, at least not yet, but I do think his thought bear evaluation for public policy‘s sake.
According to Baude, the argument threads a line between those who believe the president should not sign anything that he thinks is remotely unconstitutional, and those who believe that “constitutional principles should give way to pragmatism.” He dismisses both sides, but allows that there are situations, indeed situations where the constitutional duties of the President requires he sign laws that may have unconstitutional provisions:
In a wide range of cases, there is nothing wrong with signing unconstitutional laws. These cases involve constitutional tradeoffs between the President’s duties to prevent unconstitutional laws from taking effect, and his affirmative duties to make good on certain constitutional protections. At the same time, the President must exercise this power responsibly: so he must both have other constitutional duties that justify signing the remainder of the bill into law, and must be prepared to use his other powers to prevent the unconstitutional provisions from beingexecuted. But there is no categorical duty to veto.