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Baude on Signing Unconstitutional Laws

By Lawrence Solum

William Baude (Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP) has posted Signing Unconstitutional Laws (Indiana Law Journal, Forthcoming) on SSRN. Here is the abstract:

It has become fairly common for Presidents to sign laws that they think are (at least partly) unconstitutional. Some scholars argue that this practice is itself unconstitutional. Others defend it, but on pragmatic grounds, as if one cannot afford to be a constitutional formalist in today?s government. Both sides are wrong. Formalism provides a principled justification for signing unconstitutional laws and a legal test for when the President may do so. We are not forced to choose between a President who is obligated to veto crucial legislation and one who places expediency over constitutional principle.

In a wide range of cases, there is nothing wrong with signing unconstitutional laws. Indeed, it is required. First, as a matter of constitutional law, the President?s duties are more complicated than have been assumed. The President has no categorical duty to veto every unconstitutional law, but he must take seriously the constitutional risks created by signing one. Second, the President?s broad duty to enforce the Constitution frequently requires him to help pass legislation?especially in the national-security and individual-rights contexts.

The President?s duty to sign unconstitutional laws arises when these circumstances intersect. The President is faced with a partly unconstitutional law that also contains provisions that are unconstitutionally required. At that point, nothing flatly forbids him from signing the law, and he must consider the tradeoffs in terms of constitutional consequences. Sometimes those tradeoffs will lead him to believe that he must sign the bill, even though it is unconstitutional. Several Presidents in recent memory?include Richard Nixon and George W. Bush?have been faced with such circumstances, and this Essay argues that they were right to sign the unconstitutional bills.

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Full post as published by Legal Theory Blog on August 25, 2010 (boomark / email).