Looking at “Signing Unconstitutional Laws” by William Baude (part 1)

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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 being
executed. But there is no categorical duty to veto.
However, disregarding unconstitutionality is not an issue of pragmatism nor has there been sufficient legal framework articulated for a President to do so.  Baude’s framework for those situations where the President can, or may, sign legislation with unconstitutional provisions, is founded on two prongs:
  1. The Presidential oath requires the President to uphold the constitution, and the President has more tools at his disposal to do so than just his veto.
  2. The President’s obligation to uphold the constitution requires him to help pass laws, “especially in the national security and individual rights context.”  Often, a veto is not likely to produce a better proposal, and the president is under some obligation to sign the proposal.

more later….

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