The Unconstitutionality of 'Signing and Not-Enforcing'

Abstract

This short essay for a symposium addresses the presidential practice of signing a bill into law while stating that one will not enforce certain provisions in it that the President considers unconstitutional. This essay argues that the practice is always unconstitutional, irrespective of whether one believes that the President possesses the power to not-enforce. If one believes that the President lacks the power to not-enforce provisions that he believes are unconstitutional, then, of course, the President cannot "sign and not-enforce." But even if one believes that the President has this power to not-enforce, the President still cannot sign and not-enforce. If the President concludes that the Constitution forbids him from enforcing part of a bill, then he must also conclude that it forbids him from signing that bill. A decision to sign a bill and not-enforce part of it impermissibly treats the Constitution as a matter of presidential discretion rather than as supreme law that always binds the President.

In making this argument, I generally employ an originalist-formalist conception of law, which I believe provides the proper approach to the Constitution. The essay, however, does briefly examine signing and not-enforcing under a nonoriginalist-functionalist approach, concluding that there is a strong case for reading the Constitution as largely, and perhaps categorically, prohibiting signing and not-enforcing.

Keywords: presidential power, signing statements, power to not enforce

JEL Classification: K00, K1, K10