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Document Type

Essay

Publication Date

Winter 2011

Publication Citation

86 Indiana Law Journal 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.

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