A Third Way: The Presidential Non-Signing Statement
48 Pages Posted: 22 Apr 2010 Last revised: 26 Jan 2011
Date Written: April 21, 2010
This Note proposes an alternative approach for a president who wishes to register constitutional concerns about an enrolled bill without vetoing it. Recently, presidents have done so by issuing statements upon signing such bills that purport to “construe” them for consistency with the Constitution. This practice has fueled an intense controversy among commentators, many of whom contend that such signing statements are themselves unconstitutional. However, the recent commentary largely assumes that the President has only the options of signature or veto upon presentment, ignoring the Constitution’s provision for a bill to become law without the President’s signature - what this Note terms a default enactment.
This Note submits that the President should consider allowing a default enactment when he has doubts about the constitutionality of minor, non-central provisions of a bill. Here, he may offer a non-signing statement in lieu of the more controversial signing statement. This Note lays out factors to assist a president’s determination of whether he may allow a constitutionally doubtful bill to become law; it also explains how a non-signing statement differs from a signing statement.
Keywords: Non-signing statement, signing statement, presidential power, pocket veto, default enactment, line-item veto, separation of powers, Chadha
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