Eminent Domain

Law professors Craig Lerner and Nelson Lund offer an interesting take on the current presidential signing statements issue. They join the chorus of voices in the legal community that are correctly criticizing the strange views of the American Bar Association House of Delegates on this issue. Lerner and Lund quote...

[T]he ABA's task force explained, the president should know his place: He must enforce all the provisions of a statute "unless and until they are held unconstitutional by the Supreme Court or a subordinate tribunal." The theory seems to be that only judges are qualified to interpret the Constitution.

I think that the ABA is way off on this view. All three branches have a duty to the Constitution. The legislature has a duty to not pass unconstitutional laws, the executive has a duty to not enforce them, and the judiciary has a duty to strike them down under their assumed role of judicial review. All three branches have a duty to uphold and defend the Constitution.

The interesting take that Lerner and Lund have on the issue deals with the remainder of their article...

Here's our proposal: Let's apply the same standard of interpretative plausibility to the president's signing statements and to those found in the opinions of the Supreme Court. Who fares better?

Interesting idea. Let's take a look...

President Bush, again just like President Clinton, has issued statements in connection with bills requiring the production of documents to Congress. Again referring to his commander-in-chief authority, the president has indicated that he might refrain from producing documents that would jeopardize national security.

Compare that with the Supreme Court's interpretation of the 1964 Civil Rights Act, which says: "No person in the United States shall, on the ground of race, color, or national origin, be . . . subjected to discrimination under any program or activity receiving Federal financial assistance." The Supreme Court has interpreted this to permit universities that receive federal funds to discriminate against whites and Asians (and Hispanics of Cuban descent). And President Bush is the one who is accused of preposterous interpretations of the law?

I suppose one could claim that the Court has a much larger data set to look at, since they have tons of case law where they have interpreted the Constitution and federal statutes. But I don't think that excuses some of their more bizarre interpretations. After all, this is what they do; they should be pretty good at it.

Lerner and Lund also look at a Court case involving the ABA itself. The ABA once had a close relationship with the White House in the judicial nomination process. Thankfully, President Bush ended that relationship. However, there was a time when a public interest group demanded access to the ABA's internal deliberations on the matters. The article states, "A statute guaranteed such access to any group 'utilized by the President,' and everyone acknowledged that the President used the ABA to vet prospective judicial nominees." When the ABA's own interests were on the line, it asked the Court to defer to broad executive power...

The Court, at the urging of the ABA, noted that the Constitution provides that the President "shall nominate and . . . shall appoint" Supreme Court justices. Affording public access to the ABA's internal deliberations about judicial nominees might run afoul of this executive power (the Court wasn'’t sure on this point), and the Court therefore "construed" the statute in a way that avoided any possible unconstitutionality. The Court concluded that "utilize" could mean something other than "use," though the Court never bothered to explain what other meaning the word could have.

Executive power for me, not for thee.