Another interesting op-ed piece in the NY Times. In this one Walter Dellinger, a law professor, argues that under some circumstances the president should have the option of ignoring part of a law that he/she feels is unconstitutional.
Much to my surprise, I think he actually makes some good points, like these:
What if Congress enacted legislation requiring a president to forcibly seize a brain-dead patient and place her on artificial life support, contrary to her rights? Does the bar association panel really believe the president would have to comply?
Or suppose President Bush signed a law, passed by a lame-duck Congress, which prohibited the removal of the defense secretary for 10 years. If the next president complied with the statute, Secretary Donald Rumsfeld could remain in office against the wishes of the new president, and no one would have standing to challenge this violation in court.
The presumption is that Congress has passed the law by overriding a veto (in the first case – though I’m not sure Bush himself would veto this one), or has a sympathetic president (in the second) and therefore he/she is left with the decision of enforcing an unconstitutional law, which these surely would be, or ignoring it. I guess I would prefer my president to ignore both these rather than enforce them while the case made its way through the courts. So I guess I agree with Dr. Dellinger.
I should point out that he in no way thinks that Bush is justified in his own personal use of signing statements.
The Bush administration’s frequent and seemingly cavalier refusal to enforce laws, which is aggravated by its avoidance of judicial review and even public disclosure of its actions, places it at odds with these principles and with predecessors of both parties.
His point is a good one, but I must admit I still have a queasy feeling. Should a president have to veto an entire omnibus bill because one provision is against the Constitution? I guess not. But it still feels to me like he should either veto a bill or sign it. Period.
The problem is that I don’t think our Constitution’s framers really anticipated the omnibus bill. Maybe that’s the real problem we should be addressing. (See here to read why).