The Right Coast

February 07, 2006
I Intend Not To Torture Unless I Change My Mind
By Mike Rappaport

Recently, President Bush signed a law prohibiting torture, but in the signing statement announced that he reserved the right not follow it to the extent it was unconstitutional. Also, during his confirmation hearings, Judge Alito was asked about his view, articulated in the 1980s, concerning the force of signing statements in the interpretation of statutes. These events have created significant controversy about signing statements.

The controversy involves a couple of issues. The first is Judge Alito's issue: whether courts, when interpreting a law, should take account of the President's intent, as reflected in a signing statement, as much as they do the Congress's intent as reflected in legislative history. This issue is not too interesting to me, since I believe that neither Presidential Signing Statements nor legislative history should be used in construing statutes.

The second issue, raised by President Bush's action, is more interesting. In the last several decades, Presidents have issued signing statements instructing the executive branch that a provision in a law is unconstitutional and should not be enforced. In other words, the President's signs the law but notes that a part of it is unconstitutional.

This practice, I believe, is unconstitutional and illegitimate. In a law review article written more than a decade ago, I argued that if the President believes that a provision of a bill is unconstitutional and that he has the power to not enforce it if it is passed, then he is required to veto it. Given that he believes that the Constitution forbids him from enforcing an unconstitutional law, he should also believe that he is required not to sign that unconstitutional law. See "The President's Veto and the Constitution," 87 Northwestern Law Review 735 (1993).

Thus, President Bush should have vetoed the law had he believed it unconstitutionally constrained his commander in chief or executive power. The only counterargument might be that President Bush believes the law is not always unconstitutional, but only under limited circumstances -- such as when he determines that it is necessary to torture in order to protect the United States during wartime. But the fact that the law is not always unconstitutional does not excuse signing it. President Bush might also have legitimately signed the law if he believed it did not intend to restrain him from torturing when the Constitution prohibited such restraint – that is, if the law was read as if it said β€œto the extent permitted by the Constitution.” But that interpretation of the law appears to be clearly mistaken.

While I therefore believe that President Bush acted improperly under what I regard as the original meaning of the Constitution, that does not mean that his critics have it right. Most of his critics reject original meaning. Many of them accept using practice and precedent to interpret provisions, and President Bush here has followed his predecessors, including his father and President Clinton, in signing laws that he intends not to enforce. So this criticism, like so many other criticisms of President Bush, seems partisan and result oriented.