Obama on signing statements: A small step sideways

For the past eight years, liberals and libertarians have been criticizing former President Bush for issuing signing statements announcing his intention to ignore any provisions in the law he’s signing that he believes to be unconstitutional. Now President Obama has announced a change in how he does signing statements that in reality changes very little:

Calling into question the legitimacy of all the signing statements that former President George W. Bush used to challenge new laws, President Obama ordered executive officials on Monday to consult with Attorney General Eric H. Holder Jr. before relying on any of them to bypass a statute.

But Mr. Obama also signaled that he intended to use signing statements himself if Congress sent him legislation with provisions he decided were unconstitutional. He promised to take a modest approach when using the statements, legal documents issued by a president the day he signs bills into law that instruct executive officials how to put the statutes into effect. But Mr. Obama said there was a role for the practice if used appropriately.

“In exercising my responsibility to determine whether a provision of an enrolled bill is unconstitutional, I will act with caution and restraint, based only on interpretations of the Constitution that are well-founded,” Mr. Obama wrote in a memorandum to the heads of all departments and agencies in the executive branch.

But this is a distinction without a meaningful difference. The question is not whether Obama’s constitutional interpretations will be more valid than Bush’s, the question is whether any president has the authority to ignore provisions he believes to be unconstitutional in legislation that he signs into law. And the answer is no, he does not.

The constitution provides one and only one tool for a president to prevent unconstitutional legislation from becoming law: The veto. And the president does not have a line-item veto. If he believes that a given bill contains unconstitutional provisions, the only option he has is to veto it. He does not have the authority to pick and choose which provisions he will enforce and which he won’t.

This is not a matter of acting with more restraint; he does not have the constitutional authority to refuse to enforce duly enacted laws, no matter how restrained or cautious he thinks he is being in interpreting the Constitution. Unfortunately, there’s currently no way to force the president to do otherwise because no one has standing to sue to force the president to enforce the law as he is required by the Constitution to do. Congress could fix that, but it is unlikely that they will.