Looking at “Signing Unconstitutional Laws” by William Baude (part 2)

First page of Constitution of the United States

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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.

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