Richard Epstein’s Cato-endorsed article The Problem With Presidential Signing Statements rightly warns of some troubling executive branch power-grabs by the Bush administration. As Epstein writes:
Since he took office, Bush has used this device to object to more than 500 provisions in more than 100 pieces of legislation--nearly as many as the 575 signing statements issued by all of his predecessors combined. In these statements, the president often has claimed that the new laws violate the Constitution and signaled his intention not to enforce certain provisions, despite having signed them into law.... President Bush dishonors traditions in his aggressive use of signing statements as one way among many to circumvent the congressional and judicial checks built into the Constitution.
... A second--and more troubling--point relates to the larger question of the role of judicial review.
Modern understanding of judicial review requires the executive branch to take its marching orders from the Supreme Court. Signing statements, I fear, could be the opening wedge to a presidential posture that judicial decisions may limit the president’s ability to use courts to enforce his policies, but cannot stop him from acting unilaterally. On this theory, the president could continue to order wiretaps and surveillance in opposition to the Foreign Intelligence Surveillance Act after a court had determined that he has exceeded his powers--he just couldn’t use the evidence acquired in court. Different branches of government have different views of the law, yet the executive marches on. A major check on executive power goes by the boards.
Epstein is right to fear the erosion of checks and balances, and the expansion of the executive branch’s power. However, Epstein also seems to believe that it is unconstitutional for the President to decide for himself whether a law is unconstitutional. In the associated podcast, Epstein argues that it may be unconstitutional for the President to decide for himself not to enforce a given law if he thinks it is unconstitutional. The implication here is that only the Supreme Court can determine constitutionality. This is contrary, of course, to the tripartite structure of the Constitution in which all three branches have an obligation, a duty, to abide by the Constitution’s limits. The President takes an oath to adhere to the Constitution, not to the Supreme Court’s “marching orders”.
In fact, as law professor David Mayer (a regular Cato contributor and member of the Editorial Board of the Cato Supreme Court Review) points out, in The Constitutional Thought of Thomas Jefferson (see pp. 131, 259, 263, 269-72, which can be viewed on Amazon), under Jefferson’s theory of concurrent review, each branch of federal governemnt has an equal and independent right to construe the Constitution. The Supreme Court is not superior in this respect; it is one of three. What this means is that on a horizontal level, all three federal branches have an equal authority to construe the Constitution.
Or, as James Ely notes, in his review of Mayer’s book,
Jefferson’s attitude toward judicial review was similarly migratory. He was initially receptive to some type of federal judicial oversight of legislation. Indeed, he took the position that a bill of rights would give the federal judiciary a basis on which to safeguard encroachments on liberty by the other branches of government. However, responding to Federalist control of the courts and the Sedition Act trials, Jefferson later rejected the doctrine of judicial review in the 1790s. Rather, he espoused a tripartite theory of constitutionalism under which each branch of the government was free to interpret the Constitution and decide the validity of an act.
(For more discussion of concurrent review, see: my article, Supreme Confusion: Or, A Libertarian Defense of Affirmative Action; William J. Quirk & R. Randall Bridwell, Judicial Dictatorship xiv, 10-11, 13; Supremes Right on ‘Kelo’; and my Fourteenth Amendment/Federalism links/resources.)
So, yes, we should be troubled if the executive branch disregards limits placed upon it in the Constitution; but not when it declares that it is obligated not to enforce unconstitutional laws.
