On President Obama’s Decision to Sign and Not Enforce

Recently, President Obama signed a bill into law and then announced that he would not enforce (or at least feel bound by) a provision in the bill. Once again, President Obama has aggressively asserted executive power – in a way that prior Presidents have, but that he and Democrats criticized before he became President.

The law prohibited admittance to the U.S. by representatives to the United Nations determined to have “engaged in terrorist activity” against the U.S. or its allies. “Obama, in a signed statement attached to the measure, warned the legislation curtailed his “constitutional discretion” and that he planned to treat the law as ‘advisory.’” Obama could have vetoed the law, but he chose to sign it and then not regard it as legally binding.

There are several positions that one can have – based on the Constitution’s original meaning – in a situation where the President is presented with a bill that contains an unconstitutional provision.

1. One might believe the President has discretion to sign the bill and then to not enforce the unconstitutional provision. This appears more or less to be the position of Presidents of both parties.

2. At the opposite extreme, one might argue that the President has a duty to veto laws that he believes are unconstitutional. This is Sai Prakash’s position.

3. A less extreme position is that the President would normally have a duty to veto a law that he regards as unconstitutional, but this duty can be outweighed by other obligations. For example, the President might believe that the bill implements some constitutional obligation, such as the constitutional requirement to provide equal protection of the laws and that this obligation can outweigh the obligation to veto the unconstitutional bill. This is Will Baude’s position.

4. Another intermediate position – my position – is that the President can never do what President Obama did in this case – sign a bill and then not enforce a provision in the bill. One might defend the duty of the President to veto laws that he regards as unconstitutional, as Sai Prakash does, but I am not certain of the originalist case for this. One might argue, after all, that the President (and the Congress) is not obliged to veto (or vote against) such bills or not categorically obliged to veto them. In other words, one might argue that the President (and the Congress) does not have the same categorical obligation to enforce the Constitution as the judiciary does.

But a President cannot argue that he is not required to follow the Constitution by vetoing the bill, if he also argues that he has the power to not enforce unconstitutional statutory provisions. The basis for not enforcing statutory provisions is that the President is obligated by the Constitution to give it priority over statutes. But if that is his position, then he cannot argue that he does not have to veto an unconstitutional bill. Hence, a President can never sign a bill and then not enforce a provision in the bill he just signed.

Will Baude’s argument that the President’s obligation to veto a bill that contains an unconstitutional provision can be overridden does not, in my view, allow the President to sign a bill and then not enforce an unconstitutional provision.

The Constitution often imposes obligations that must be implemented in accordance with other constitutional requirements. For example, the Equal Protection Clause might require the President to take action, but that action might require statutory authority. In that case, the President could not fulfill his obligation if Congress does not provide the statutory authority. Similarly, if the President must veto a bill with an unconstitutional provision, then his other obligations under the Constitution cannot override his obligation to veto the bill.