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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.

Examples:

• The Voting Rights Act in 1970.  In addition to extending the soon to lapse voting rights established by the Voting Rights Act of 1965, which had been intended to force the states to comply with the 15th Amendment, the Voting Rights Act of 1970 forced states to change the minimum voting age from 21 to 18 in not only congressional elections, which Congress could do under its Article I authority, but also for all state elections, something that Article I did not grant Congress authority to do. President Nixon recognized this, and he tried, unsuccessfully to convince Congress to amend the bill.

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.”

• President George W. Bush in 2001 signed intelligence appropriations bills that he felt contained provisions requiring more executive reporting to Congress than he thought proper.  Article IV grants that the federal government must “guarantee to every State . . . a Republican Form of Government and . . . protect each of them against Invasion.”  A positive affirmation of Presidential duty, this requires protection of a state’s security from invasion and guarantee of a republican form of government. “If the law is signed, an unconstitutional provision might be enforced in the future. If the law is not signed, an invasion might succeed or a republican government might be overthrown.”  Therefore, the President signed the intelligence appropriations bill because he felt that his duty to protect the country outweighed the potentially unconstitutional reporting requirement to sit, ignored, in the Statutes at Large.

  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.

• 1867 Army Appropriations Act.  President Andrew Johnson signed it in spite of his belief that it “deprive[d] the President of his constitutional functions as Commander in Chief” and “denie[d] to ten States . . . their constitutional right to protect themselves.”  He used his other executive powers to mitigate what he saw as the unconstitutionality of Reconstruction. (See Joshua Chafetz, Impeachment and Assassination 95 Minn. L. Rev. (forthcoming 2010) at 55, available at http://ssrn.com/abstract=1568950.)

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.

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