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Signing Unconstitutional Laws


William Baude


University of Chicago - Law School

January 2011

Indiana Law Journal, Vol. 86, p. 303, 2011

Abstract:     
It has become fairly common for Presidents to sign laws that they think are unconstitutional, at least in part. Some scholars argue that this is 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. In a wide range of cases, there is nothing wrong with signing unconstitutional laws. Indeed, it is required. Yet the President must exercise this power responsibly. He must have other constitutional duties that justify signing the remainder of the bill into law, and he must be prepared to use his other powers to prevent the unconstitutional provisions from being executed. President Richard Nixon’s decision to sign the Voting Rights Act of 1970 is one example, as are many of President George W. Bush’s maligned signing statements. At the same time, this conclusion need not be grounded in pragmatic disregard of the Constitution. Defenders of the practice wrongly treat it as a question of political decision making justified by constitutional necessity, and they have also failed to articulate adequate legal rules for when the President may sign an unconstitutional law. So the Constitution can be saved from the formalists: 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.

Number of Pages in PDF File: 31

Keywords: Signing, Unconstitutional, Laws, Bills, Veto, Constitutional, Duty, President

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Date posted: August 26, 2010 ; Last revised: July 11, 2011

Suggested Citation

Baude, William, Signing Unconstitutional Laws (January 2011). Indiana Law Journal, Vol. 86, p. 303, 2011. Available at SSRN: http://ssrn.com/abstract=1665161

Contact Information

William Baude (Contact Author)
University of Chicago - Law School ( email )
1111 E. 60th St.
Chicago, IL 60637
United States
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