It's Still Unconstitutional for the President to Sign a Bill into Law and Refuse to Obey It

     Michael O'Brien of The Hill reports that when President Obama signed the war funding bill last week the President issued a statement indicating that he would ignore certain provisions of the law that he considered unconstitutional.  Although I agree with the President that the sections of the statute he objects to are an invasion of the powers granted to the President under the Constitution, it would be an even graver violation of the Constitution for him to refuse to enforce a law that Congress has enacted and that he has signed.

     When the President signed the war funding bill he issued a five-paragraph signing statement.  The first four paragraphs set forth a justification for the war in Afghanistan and describe the other foreign policy initiatives funded by the law.  In the last paragraph of the signing statement the President indicates that he does not feel bound by certain provisions of the law that relate to the World Bank.  Here is a link to the White House website setting forth the signing statement, and here is the statement in its entirety:

Today I have signed into law H.R. 2346, the "Supplemental Appropriations Act, 2009." This Act provides the necessary resources for our troops while supporting ongoing diplomatic and development efforts around the world.

We face a security situation abroad that demands urgent attention. The Taliban is resurgent and al Qaeda is increasing its attacks from its safe haven along the Afghanistan-Pakistan border. The funding provided in this Act will ensure that the full force of the United States is engaged in an overall effort to defeat al Qaeda and uproot this safe haven.

At the same time, funding contained in this Act will provide resources to help create political and economic stability in post-conflict areas. These funds will assist Afghans and Iraqis in protecting and sustaining their infrastructure and building their capacity for more responsive and transparent governance. The Act also provides critical support for continued U.S. diplomatic and development activity in Iraq, Afghanistan, and Pakistan.

In addition, this Act includes funding for other domestic and international issues, including nearly $8 billion to enhance our Nation's capability to respond to the potential spread of the H1N1 flu outbreak. It also expands the resources available to the International Monetary Fund (IMF) by allowing it to boost its lending ability. Many developing countries are experiencing severe economic decline and a massive withdrawal of capital, and the IMF needs to make sure it has the resources necessary to effectively respond to the current financial crisis.

However, provisions of this bill within sections 1110 to 1112 of title XI, and sections 1403 and 1404 of title XIV, would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with international organizations and foreign governments, or by requiring consultation with the Congress prior to such negotiations or discussions. I will not treat these provisions as limiting my ability to engage in foreign diplomacy or negotiations.

     O'Brien gives the following description of the sections of the bill that President Obama does not intend to enforce:

The sections in question would compel the administration to direct its World Bank representatives to pressure that institution to use metrics that "fairly represent the value of internationally recognized workers' rights. Organized labor groups had pushed for a revision of those standards.

The World Bank section would also push the bank to account for the costs of greenhouse gas in pricing out projects, and would require development banks to more fully disclose operating budgets.

The other section would require Treasury Secretary Tim Geithner to develop a report with the heads of the World Bank and IMF "detailing the steps taken to coordinate the activities of the World Bank and the Fund" to eliminate overlap between the two.

     It appears that labor and environmental groups wished to influence foreign policy by requiring the President to negotiate with and pressure the World Bank to adopt positions that are more to their liking, and that Congress also wants the President to influence the World Bank and the IMF to become more efficient.  From a policy perspective these are not unreasonable demands, and the President probably agrees with each of the congressional goals expressed in the legislation.  But the President is right that Congress lacks the power to enact legislation forcing the President to negotiate with or issue reports with foreign bodies.  The development of foreign policy is entirely in the hands of the President.  In the 1936 case of United States v. Curtiss-Wright Export Corporation the Supreme Court stated:

In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, 'The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.'

     Note that the Court in Curtiss-Wright was careful to say that the President has sole discretion to "negotiate" with foreign countries – to "speak or listen" as America's representative.  He is the voice of the nation.  When it comes the conduct of foreign policy the Congress also has broad powers.  For example, Congress has the authority to regulate commerce with foreign nations and it has the power to issue rules for the government of the army and navy.  In my opinion Congress acted wholly within its rights when it enacted the Detainee Treatment Act of 2005 forbidding torture or cruel, inhuman, or degrading treatment of prisoners, and President Bush was wrong when he issued a signing statement indicating that he thought that the treatment of detainees was constitutionally committed solely to the discretion of the President as Commander-in-Chief of the Army and Navy.  In our system of government the military is subservient to the civilian, and the President as military leader must be obedient to laws and treaties that dictate the treatment of prisoners.  However, when the President acts as Ambassador-in-Chief his conduct of diplomacy is not subject to congressional control.  President Obama is right in stating that the war funding act is unconstitutional insofar as it purports to force him to take certain positions in negotiations or discussions with international bodies.

     But that does not mean that President Obama was right to sign the bill and announce that he was not going to obey it.  When Congress adopts a bill and sends it to the President for his signature the Constitution gives the President two options.  These choices are set forth in Article I, Section 7, Clause 2, which provides in part:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.

When presented with a bill passed by Congress the two choices that the President has are to either "sign it" or "return it" to Congress with his objections.  There is no third option.  He is not authorized to "sign it" into law and then disobey it, even if he expresses his objections to the public in a signing statement.  Once law, the President is bound to obey it.  Article II, Section 3 states in part:

he shall take Care that the Laws be faithfully executed ….

     The Constitution does not say that "he shall take care that some of the laws be faithfully executed," nor does it state that the President has the authority to determine which laws are constitutional and which are not.  That is quite clearly the job of the courts, not the executive branch.

     If the President believes that a portion of a bill passed by Congress is unconstitutional then he should either refuse to sign the bill or he should challenge its constitutionality in court.  But the Constitution does not give the President the President the power to sign a bill into law and then refuse to obey it.  It is possible that President Obama means to obey the law and that he was simply signalling Congress that it could not force him to take certain positions in negotiations with the World Bank and the IMF.  The last sentence of the signing statement is ambiguous on that point.  The President said:

I will not treat these provisions as limiting my ability to engage in foreign diplomacy or negotiations.

     If the President's signing statement is simply an expression of independence in the field of diplomacy - "You're not the boss of me!" – and the President is going to act in accordance with the law anyway, then there will of course be no constitutional violation.  But it is exceedingly disappointing that the President has implied that he may sign a bill into law and then treat a portion of the bill as if it were not law.

Tagged as: article I section 7, constitution, curtiss-wright, President Obama, separation of powers, signing statement, war funding bill