Should President Obama (and President George H.W. Bush before him) have signed an unconstitutional law?

April 22

On Friday, President Obama signed into law S.2195, a unanimously-enacted bill designed to prevent Hamid Aboutalebi from entering the United States as U.N. ambassador from Iran. He also issued a signing statement announcing that he deemed the bill unenforceable:

Today I have signed into law S. 2195, an Act concerning visa limitations for certain representatives to the United Nations. S. 2195 amends section 407 of the Foreign Relations Authorization Act, Fiscal Years 1990 and 1991, to provide that no individual may be admitted to the United States as a representative to the United Nations, if that individual has been found to have been engaged in espionage or terrorist activity directed against the United States or its allies, and if that individual may pose a threat to United States national security interests. As President Bush observed in signing the Foreign Relations Authorization Act, Fiscal Years 1990 and 1991, this provision “could constrain the exercise of my exclusive constitutional authority to receive within the United States certain foreign ambassadors to the United Nations.” (Public Papers of the President, George Bush, Vol. I, 1990, page 240). Acts of espionage and terrorism against the United States and our allies are unquestionably problems of the utmost gravity, and I share the Congress’s concern that individuals who have engaged in such activity may use the cover of diplomacy to gain access to our Nation. Nevertheless, as President Bush also observed, “curtailing by statute my constitutional discretion to receive or reject ambassadors is neither a permissible nor a practical solution.” I shall therefore continue to treat section 407, as originally enacted and as amended by S. 2195, as advisory in circumstances in which it would interfere with the exercise of this discretion.

As you can see, the president invoked as precedent the decision by President George H.W. Bush to sign into law the Foreign Relations Authorization Act, Fiscal Years 1990 and 1991. Here is Bush’s signing statement. And here (at the bottom) is the controversial text of the bill that Bush signed.

Over at the Originalism Blog, Mike Ramsey criticizes the president’s decision to sign bill into law:

The President should simply have vetoed the law. I don’t see how signing the law can be consistent with the President’s duty to uphold the Constitution (if the President is convinced the law is unconstitutional). (See Saikrishna Prakash: Why the President Must Veto Unconstitutional Laws). That seems particularly true when the unconstitutional provision is a standalone (as I believe it was here). It might be a different situation if Congress included an unconstitutional provision in a complex bill also containing many sections that the President believed to be constitutional and beneficial. Also, perhaps it would be different if the Supreme Court had said that similar laws are in fact constitutional (though I doubt it). But in the standalone circumstance, I see no textualist/originalist (or even pragmatic) justification for failing to veto.

Since I published an article criticizing Prakash’s “Why the President Must Veto Unconstitutional Laws,” I thought I’d explain my own view of the duty to veto. As I argue in “Signing Unconstitutional Laws,” signing an unconstitutional bill is not in itself unconstitutional. The Constitution does not contain a categorical duty to veto unconstitutional laws; and because unconstitutional provisions are legally void, no constitutional violation happens when they are enacted. That means that what Obama and Bush did is not inherently unconstitutional.

But, I also argued, signing an unconstitutional bill creates a risk – a risk that the unconstitutional provision will mistakenly be enforced in the future, whether by a court, a new president with different constitutional views, or some other way. The president’s oath to the Constitution does not allow him to take those constitutional risks lightly. As a matter of structure and tradition, I argued, there must be some countervailing constitutional duty that justifies signing the bill — generally because the bill contains other provisions that help to enforce constitutional rights or protect the country against invasion.

[Note that Ramsey's views in his blog post may actually be closer to my views than the article by Prakash that he links to. Ramsey says that it might be permissible to sign a bill that contains alongside other provisions -- my argument is a subset of that. Prakash, however, argues (at pp. 9-10) that one unconstitutional provision taints the whole bill.]

So by that test, how do the Bush and Obama signing statements fare? The bill that Bush signed gave funding and new powers to the State Department, which are plausibly related to the nation’s national security. (I haven’t studied all of the 1990 provisions in detail, but I discuss a number of national security funding bills at pages 23-25 of my article.) Meanwhile, the allegedly unconstitutional provision created a fairly small constitutional risk — the provision authorized the president to waive it in the interests of national security, and even if not formally waived the provision would be difficult to enforce against the president.

However, S.2195, the new bill, creates a much closer call. The constitutional risk introduced by the new bill is even smaller than the original bill, because the new bill is a fairly minor expansion and remains subject to a national security waiver. And the conflict with executive power is triggered only if the president wishes to admit somebody despite believing they pose a national security threat. However, because S.2195 is a stand-alone bill, there is nothing on the other side of the balance — so far as I can tell, there was no legal reason at all to sign the bill. Maybe that is because I am missing an important element of the legal scheme, or maybe the decision to sign it was purely expressive; who wants to veto a unanimous bill that expresses condemnation of terrorists?

Without any constitutional benefits from the bill, I am not convinced there was any justification for signing it. If the president indeed believes that enforcing the bill could infringe his constitutional authority to receive ambassadors, he should have vetoed it.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
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