The Unitary Executive Branch

In addition to my previous response, it is time once again to remind Tico that the Supreme Court has rejected his argument:

We are a government of laws and all lawmaking power resides with the people's elected representatives in Congress. The president, our chief executive officer, is our elected servant. He is mandated to faithfully execute the laws that our elected lawmakers have enacted in accordance with the process set forth in the Constitution. The president's power to review congressional bills and approve or disapprove them is limited by the Constitution. See Article I, Section 7:

Whether he likes it or not; whether he approves or not; the president is mandated by the Constitution to faithfully execute the laws. He may not pick and choose what laws he will execute and what laws he will ignore or bypass whenever he chooses.

It is the JUDICIAL BRANCH--NOT the Executive Branch--that is vested with the power to determine if a duly enacted law is unconstitutional and therefore void ab initio and unenforceable.

Historical Examples of Constitutional Judgments By Presidents

For example, in the 1798 Alien and Sedition Acts, Congress sought to outlaw criticism of incumbents -- an obvious First Amendment violation. The federal courts, however, held otherwise.

Thomas Jefferson pardoned all those who had been convicted under the old Act, despite these court decisions. To Jefferson, the question was not simply what courts had done or might do, but what his own independent constitutional conscience dictated.

In 1832, President Andrew Jackson he vetoed a bill on constitutional grounds -- again, using independent judgment despite a prior court ruling. There, the Supreme Court had already upheld a similar bill against constitutional challenge. But Jackson wrote:

The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision.

Even the Supreme Court itself agrees to some extent: As Walter Dellinger observed when he served in the Office of Legal Counsel during the Clinton administration, the Court has "endorsed" the practice of a President's declining to enforce statutory requirements he views as unconstitutional.

MEMORANDUM FOR THE HONORABLE ABNER J. MIKVA
COUNSEL TO THE PRESIDENT

I have reflected further on the difficult questions surrounding a President's decision to decline to execute statutory provisions that the President believes are unconstitutional, and I have a few thoughts to share with you. Let me start with a general proposition that I believe to be uncontroversial: there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional.

First, there is significant judicial approval of this proposition. Most notable is the Court's decision in Myers v. United States, 272 U.S. 52 (1926). There the Court sustained the President's view that the statute at issue was unconstitutional without any member of the Court suggesting that the President had acted improperly in refusing to abide by the statute. More recently, in Freytag v. Commissioner, 501 U.S. 868 (1991), all four of the Justices who addressed the issue agreed that the President has "the power to veto encroaching laws . . . or even to disregard them when they are unconstitutional." Id. at 906 (Scalia, J., concurring); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring) (recognizing existence of President's authority to act contrary to a statutory command).

Second, consistent and substantial executive practice also confirms this general proposition. Opinions dating to at least 1860 assert the President's authority to decline to effectuate enactments that the President views as unconstitutional. See, e.g., Memorial of Captain Meigs, 9 Op. Att'y Gen. 462, 469-70 (1860) (asserting that the President need not enforce a statute purporting to appoint an officer); see also annotations of attached Attorney General and Office of Legal Counsel opinions. Moreover, as we discuss more fully below, numerous Presidents have provided advance notice of their intention not to enforce specific statutory requirements that they have viewed as unconstitutional, and the Supreme Court has implicitly endorsed this practice. See INS v. Chadha, 462 U.S. 919, 942 n.13 (1983) (noting that Presidents often sign legislation containing constitutionally objectionable provisions and indicate that they will not comply with those provisions).

...

6. The President has enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency. Where the President believes that an enactment unconstitutionally limits his powers, he has the authority to defend his office and decline to abide by it, unless he is convinced that the Court would disagree with his assessment. If the President does not challenge such provisions (i.e., by refusing to execute them), there often will be no occasion for judicial consideration of their constitutionality; a policy of consistent Presidential enforcement of statutes limiting his power thus would deny the Supreme Court the opportunity to review the limitations and thereby would allow for unconstitutional restrictions on the President's authority.

Some legislative encroachments on executive authority, however, will not be justiciable or are for other reasons unlikely to be resolved in court. If resolution in the courts is unlikely and the President cannot look to a judicial determination, he must shoulder the responsibility of protecting the constitutional role of the presidency. This is usually true, for example, of provisions limiting the President's authority as Commander in Chief. Where it is not possible to construe such provisions constitutionally, the President has the authority to act on his understanding of the Constitution.

...

As Attorney General Civiletti stated in a 1980 opinion,

Myers [[u]Myers v. United States[/u], 272 U.S. 52 (1926)] is very nearly decisive of the issue [of Presidential denial of the validity of statutes]. [b]Myers holds that the President's constitutional duty does not require him to execute unconstitutional statutes; nor does it require him to execute them provisionally, against the day that they are declared unconstitutional by the courts. [/b]He cannot be required by statute to retain postmasters against his will unless and until a court says that he may lawfully let them go. If the statute is unconstitutional, it is unconstitutional from the start.

The Attorney General's Duty to Defend and Enforce Constitutionally Objectionable Legislation, 4A Op. O.L.C. 55, 59 (1980).

7. The fact that a sitting President signed the statute in question does not change this analysis. The text of the Constitution offers no basis for distinguishing bills based on who signed them; there is no constitutional analogue to the principles of waiver and estoppel. Moreover, every President since Eisenhower has issued signing statements in which he stated that he would refuse to execute unconstitutional provisions. See annotations of attached signing statements. As we noted in our memorandum on Presidential signing statements, the President "may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing. If so, then a signing statement that challenges what the President determines to be an unconstitutional encroachment on his power, or that announces the President's unwillingness to enforce (or willingness to litigate) such a provision, can be a valid and reasonable exercise of Presidential authority." Memorandum for Bernard N. Nussbaum, Counsel to the President, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel at 4 (Nov. 3, 1993). (Of course, the President is not obligated to announce his reservations in a signing statement; he can convey his views in the time, manner, and form of his choosing.) Finally, the Supreme Court recognized this practice in INS v. Chadha, 462 U.S. 919 (1983): the Court stated that "it is not uncommon for Presidents to approve legislation containing parts which are objectionable on constitutional grounds" and then cited the example of President Franklin Roosevelt's memorandum to Attorney General Jackson, in which he indicated his intention not to implement an unconstitutional provision in a statute that he had just signed. Id. at 942 n.13. These sources suggest that the President's signing of a bill does not affect his authority to decline to enforce constitutionally objectionable provisions thereof.

In accordance with these propositions, we do not believe that a President is limited to choosing between vetoing, for example, the Defense Appropriations Act and executing an unconstitutional provision in it. In our view, the President has the authority to sign legislation containing desirable elements while refusing to execute a constitutionally defective provision.

If the President does not want to "faithfully execute" a law that he believes is unconstitutional--a law that was passed over his objections--then the president must seek a declaration from the judicial branch that the law is unconstitutional. The president does not have the power to "approve" a bill by signing it into law and then immediately "disapprove" a law by refusing to faithfully execute it due to objections that he never allowed CONGRESS to consider.

He is depriving CONGRESS of its constitutional role in our government; he is depriving the JUDICIARY of its constitutional role in our government. He is unconstitutionally evading the checks and balances built into our system of government and has made himself a dictator--a "ruler" who is unconstrained by the law--rather than a servant whose job it is to faithfully execute the laws..

He is not mandated by the Constitution to execute laws that are unconstitutional.

As I cited earlier ....

To apply Cyclops analysis to your claim: The President has the power to refuse to execute a law if he believes it to be unconstitutional, to his heart's content. The Judiciary will decide whether or not the law is in face unconstitutional, and Congress can choose whether or not to Impeach the president if it isn't. But he does have the power to refuse to execute a law if he believes it to be unconstitutionial. It's inherent in his power as the Executive.

Congress cannot tell the President who to appoint to Cabinet positions, who he can pardon, or what he can veto, for instance.

I don't question that Congress has very limited authority over a President in limited circumstances.

Congress may "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

The opinions of the Findlaw author and Clinton's lawyer are immaterial. Meaningless. They have no legal standing whatsoever, ....

...and don't change the fact that Bush is in violation of the law when he decides to break a law that Congress has passed. The only question is whether or not he will be held responsible for it. Some presidents in the past have been held responsible, some have not, but all were lawbreakers.

Quote:

As I cited earlier ....

And as I stated earlier, which you declined to respond to, in no instance does it say that those presidents who asserted this authority were free from consequence for doing so.

Even more importantly, each and every one of the examples you cited represent a president who had the respect for the American people to make his decisions in public.

Bush makes his decisions under a cloud of secrecy and the assumption that they (the executive branch) know far better what is right and wrong than the people who elected them, to the extent that he doesn't bother to even notify - or goes a step farther and keeps completely secret - his 'interpretations' of the Constitution. This is inherently UnAmerican and against the concepts of open government and democracy.

Most importantly, and another point which you have not/cannot respond to:

Quote:

To apply Cyclops analysis to your claim: The President has the power to refuse to execute a law if he believes it to be unconstitutional, to his heart's content. The Judiciary will decide whether or not the law is in face unconstitutional, and Congress can choose whether or not to Impeach the president if it isn't. But he does have the power to refuse to execute a law if he believes it to be unconstitutionial. It's inherent in his power as the Executive.

You are 100% wrong here. I never said that Bush or any other President has the power to refuse to execute a law that he believes to be unconstitutional. I said that Bush has the power to refuse to execute any law that he wishes. He does not, however, have the power to remove himself for responsibility for his actions.

You are hung up on the idea of 'constitutionality/unconsitutionality' when it comes to Presidential Perogative. It is immaterial. The perogative exists for the President to do what he thinks is right, at any time. He only has to answer to the Congress, Judiciary and the American people afterwards.

You don't seem to understand that it doesn't matter in the slightest whether or not Bush/the president considers a law to be unconstitutional or not.

The opinions that you have cited are not 'opinions' in the sense that the FISCR opinion you cited in the NSA thread are, that is to say, they are not legal decisions by a group of judges, but rather the opinions of individual lawyers.

All that matters is whether or not the Congress decides to hold the President responsible for his actions. I have a feeling that this president is going to be held responsible for breaking the law.

Specific questions:

Upon what do you rest your opinion that laws have an inherent Constitutionality/UnConstitutionality? Given that the Constitution is open to a significant level of interpretation, do you believe that there is some quality of a law which transcends individual interpretation and imparts some Constitutionality or not? What is this quality, specifically? Can you define what this quality is, or is it a subjective opinion?

You state,

Quote:

Congress cannot tell the President who to appoint to Cabinet positions, who he can pardon, or what he can veto, for instance.

Do you disagree that Congress has the authority to deny a cabinet post by not confirming the candidate?

Do you disagree that the Congress can over-ride a presidential veto?

You state,

Quote:

I don't question that Congress has very limited authority over a President in limited circumstances.

What are those circumstances? Be specific, please.

Do you disagree that Article 1 of the Constitution states the following:

Quote:

Congress may "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

?

It would seem to me that your side of the argument is primarily supported by pieces written by representatives of the Executive Branch, whose goal is obviously to increase the power of their Branch as much as possible, whereas my side is supported by the Constitution itself. Your side of the argument relies on the erroneous belief that laws have an inherent Constitutionality or UnConstitutionality, whereas my side of the argument rests on the fact that laws are assumed to be constitutional - and are legally binding to all parties involved - until they have been declared not to be so.

Can you show me where the Judicial branch, specifically, has upheld the President's right to ignore laws written by Congress? Can you show me where the SC has determined that the Executive branch has the ability to unilaterally decide what laws are Constitutional or UnConstitutional?

In closing, I remind you that the President has the right to break the law if he wishes to, at any time, if he thinks it is the right thing to do. By saying this, I mean that the President can issue an order and expect it to be followed. But he cannot remove himself from the responsibility of answering to Congress and the Electorate for his actions, and the question of Constitutionality only comes up once the president is forced to defend his actions; it does not limit nor define his actions.

Now, I'm going to bed. Cheers

Cycloptichorn

Correct .. he has the power to refuse to execute any law he wishes. We agree. And if the law he refuses to execute is unconstitutional, he will be insulated from any liability for his doing so.

and the question of Constitutionality only comes up once the president is forced to defend his actions; it does not limit nor define his actions.

If you think your side is supported by the Constitution, show me where the Constitution says a President must execute an unconstitutional law. No, your position relies on the mistaken belief that Congress possesses the ability to modify Constitutionally inherent powers of the Executive, absent a Constitutional Amendment.

Thanks for the response, Tico.

Can you tell me what the relevant portion of the meyers case is? I don't have time to read 40 pages of 1926 legalese, and from what I can see, this case revolves around the removal of postmasters, not declaring laws UnConstitutional.

You state in your response that,

Quote:

Correct .. he has the power to refuse to execute any law he wishes. We agree. And if the law he refuses to execute is unconstitutional, he will be insulated from any liability for his doing so.

But then go on to disagree when I say:

Quote:

and the question of Constitutionality only comes up once the president is forced to defend his actions; it does not limit nor define his actions.

How is this consistent? The president may choose to judge the Constitutionality of a law before he breaks it but is not limited to do so. He does not have to show that the law is unconstitutional before he breaks it. He only has to do so if he wishes to defend himself from the consequences of his actions.

Therefore, it is not unconstitutionality that defines the President's actions, it is what he attempts to use to excuse them. Bush didn't start the NSA wiretapping program because he thought FISA was unconstitutional; he started it because he wanted to spy on Al Qaeda (supposedly). The Constitutionality or UnConstitutionality of the FISA law had nothing to do with his motivating factors whatsoever; it is only an excuse for his actions, to avoid investigation and impeachment for breaking the laws of the US.

Quote:

If you think your side is supported by the Constitution, show me where the Constitution says a President must execute an unconstitutional law. No, your position relies on the mistaken belief that Congress possesses the ability to modify Constitutionally inherent powers of the Executive, absent a Constitutional Amendment.

No, it does not. FISA doesn't modify any inherent powers of the President in the slightest. It modifies assumed powers of the president, which are not written in the constitution, but extensions of the Constitution based upon interpretation and judgement. There is nothing saying that Congress cannot do this. Can you show me where it says that Congress cannot do this?

The Constitution doesn't say anything at all about which laws the President is required to follow and which he isn't. It states that the Congress has power to make all laws pertaining to the carrying out of the powers vested in the US government. The whole idea that the President 'doesn't have to follow an unConstitutional law' is a canard, a trick, a game in order to get around the traditional balance of power. It is the President daring the Congress to disagree with him, knowing that the showdown will often be far more damaging to the society than just allowing him to get away with breaking the law.

I don't blame the executive branch for trying to achieve greater powers, but they certainly don't have a free pass in doing so.

The secretive nature of Bush's actions does not speak well of his good intentions, and goes to the heart of the question: is the Executive branch trying to upset the balance of power in our government? The answer in Bush's case is yes, and they've even admitted many times that their goal is to increase the power of the Executive branch at the expense of the other branches. Whereas you may be able to make a convincing case that a president has a constitutional issue with a portion of a law, Bush has done this over 750 times in his term as President. That means that Bush decides that laws are unconstitutional roughly three times a week on average. This obviously goes far beyond the defense that you are presenting, as it is obvious that not all - not even a majority - of those laws he issued 'signing statements' on are UnConstitutional. This smacks of Dictatorial powers.

Cycloptichorn

THE LEGAL SIGNIFICANCE OF PRESIDENTIAL
SIGNING STATEMENTS

November 3, 1993

MEMORANDUM FOR BERNARD N. NUSSBAUM,
COUNSEL TO THE PRESIDENT

This memorandum provides you with an analysis of the legal significance of Presidential signing statements. It is addressed to the questions that have been raised about the usefulness or validity of a such statements. We believe that such statements may on appropriate occasions perform useful and legally significant functions. These functions include (1) explaining to the public, and particularly to constituencies interested in the bill, what the President believes to be the likely effects of its adoption, (2) directing subordinate officers within the Executive Branch how to interpret or administer the enactment, and (3) informing Congress and the public that the Executive believes that a particular provision would be unconstitutional in certain of its applications, or that it is unconstitutional on its face, and that the provision will not be given effect by the Executive Branch to the extent that such enforcement would create an unconstitutional condition.(1)

These functions must be carefully distinguished from a much more controversial -- and apparently recent -- use of Presidential signing statements, i.e., to create legislative history to which the courts are expected to give some weight when construing the enactment. In what follows, we outline the rationales for the first three functions, and then consider arguments for and against the fourth function.(2) The Appendix to the memorandum surveys the use of signing statements by earlier Presidents and provides examples of such statements that were intended to have legal significance or effects.

I.

To begin with, it appears to be an uncontroversial use of signing statements to explain to the public, and more particularly to interested constituencies, what the President understands to be the likely effects of the bill, and how it coheres or fails to cohere with the Administration's views or programs.(3)

A second, and also generally uncontroversial, function of Presidential signing statements is to guide and direct Executive officials in interpreting or administering a statute. The President has the constitutional authority to supervise and control the activity of subordinate officials within the Executive Branch. See Franklin v. Massachusetts, 112 S. Ct. 2767, 2775 (1992). In the exercise of that authority he may direct such officials how to interpret and apply the statutes they administer.(4) Cf. Bowsher v. Synar, 478 U.S. 714, 733 (1986) ("nterpreting a law enacted by Congress to implement the legislative mandate is the very essence of 'execution' of the law."). Signing statements have frequently expressed the President's intention to construe or administer a statute in a particular manner (often to save the statute from unconstitutionality), and such statements have the effect of binding the statutory interpretation of other Executive Branch officials.(5)

A third function, more controversial than either of the two considered above, is the use of signing statements to announce the President's view of the constitutionality of the legislation he is signing. This category embraces at least three species: statements that declare that the legislation (or relevant provisions) would be unconstitutional in certain applications; statements that purport to construe the legislation in a manner that would "save" it from unconstitutionality; and statements that state flatly that the legislation is unconstitutional on its face. Each of these species of statement may include a declaration as to how -- or whether -- the legislation will be enforced.

Thus, the President may use a signing statement to announce that, although the legislation is constitutional on its face, it would be unconstitutional in various applications, and that in such applications he will refuse to execute it. Such a Presidential statement could be analogized to a Supreme Court opinion that upheld legislation against a facial constitutional challenge, but warned at the same time that certain applications of the act would be unconstitutional. Cf. Bowen v. Kendrick, 487 U.S. 589, 622-24 (1987) (O'Connor, J., concurring). Relatedly, a signing statement may put forward a "saving" construction of the bill, explaining that the President will construe it in a certain manner in order to avoid constitutional difficulties. See Federal Election Comm'n v. NRA Political Victory Fund, 1993 U.S. App. LEXIS 27298 (D.C. Cir. 1993), at *11-*12 (Silberman, J., joined by Wald, J.) (citing two Presidential signing statements adopting "saving" construction of legislation limiting appointment power). This, too, is analogous to the Supreme Court's practice of construing statutes, if possible, to avoid holding them unconstitutional, or even to avoid deciding difficult constitutional questions.

More boldly still, the President may declare in a signing statement that a provision of the bill before him is flatly unconstitutional, and that he will refuse to enforce it. This species of statement merits separate discussion.(6)

In each of the last three Administrations, the Department of Justice has advised the President that the Constitution provides him with the authority to decline to enforce a clearly unconstitutional law.(7) This advice is, we believe, consistent with the views of the Framers.(8) Moreover, four sitting Justices of the Supreme Court have joined in the opinion that the President may resist laws that encroach upon his powers by "disregard[ing] them when they are unconstitutional." Freytag v. C.I.R., 111 S. Ct. 2631, 2653 (1991) (Scalia, J., joined by O'Connor, Kennedy and Souter, JJ., concurring in part and concurring in judgment).(9)

If the President may properly decline to enforce a law, at least when it unconstitutionally encroaches on his powers, then it arguably follows that he may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing. If so, then a signing statement that challenges what the President determines to be an unconstitutional encroachment on his power, or that announces the President's unwillingness to enforce (or willingness to litigate) such a provision, can be a valid and reasonable exercise of Presidential authority.(10) And indeed, in a recent decision by the United States Court of Appeals for the District of Columbia Circuit, Federal Election Comm'n v. NRA Political Victory Fund, supra, the court cited to and relied upon a Presidential signing statement that had declared that a Congressionally-enacted limitation on the President's constitutional authority to appoint officers of the United States was without legal force or effect. Id. at * 11.

The contrary view -- that it is the President's constitutional duty not to sign legislation that he believes is unconstitutional -- has been advanced on occasion. For example, Secretary of State Thomas Jefferson advised President Washington in 1791 that the veto power "is the shield provided by the constitution to protect against the invasions of the legislature [of] 1. the rights of the Executive 2. of the Judiciary 3. of the states and state legislatures." Opinion on the Constitutionality of the Bill for Establishing a National Bank (Feb. 15, 1791), reprinted in III The Founders' Constitution 247 (Philip B. Kurland & Ralph Lerner eds. 1987). James Madison appears to have held a similar view and as President once vetoed a bill on constitutional grounds even though he supported it as a matter of policy. See Message to the House of Representatives (Mar. 3, 1817), in I James Richardson (ed.), Messages and Papers of the Presidents, 585 (1896) (while praising the bill's "beneficial objects," Madison wrote that he "ha[d] no option but to withhold [his] signature from it" because he thought it unconstitutional). Jefferson and Madison, however, did not in fact always act on this understanding of the President's duties: in 1803 President Jefferson, with Secretary of State Madison's agreement, signed legislation appropriating funds for the Louisiana Purchase even though Jefferson thought the purchase unconstitutional. See I William M. Goldsmith, The Growth of Presidential Power 438-50 (1974). In light of our constitutional history, we do not believe that the President is under any duty to veto legislation containing a constitutionally infirm provision, although of course it is entirely appropriate for the President to do so.

II.

Separate and distinct from all the preceding categories of signing statement, and apparently even more controversial than any of them, is the use of such statements to create legislative (or "executive") history that is expected to be given weight by the courts in ascertain the meaning of statutory language. See Marc N. Garber and Kurt A. Wimmer, Presidential Signing Statements as Interpretations of Legislative Intent: An Executive Aggrandizement of Power, 24 Harv. J. on Legis. 363, 366 (1987). Although isolated examples can perhaps be found earlier, signing statements of this kind appear to have originated (and were certainly first widely used) in the Reagan Administration.

In 1986, then-Attorney General Meese entered into an arrangement with the West Publishing Company to have Presidential signing statements published for the first time in the U.S. Code Congressional and Administrative News, the standard collection of legislative history. Mr. Meese explained the purpose of the project as follows:

To make sure that the President's own understanding of what's in a bill is the same . . . or is given consideration at the time of statutory construction later on by a court, we have now arranged with the West Publishing Company that the presidential statement on the signing of a bill will accompany the legislative history from Congress so that all can be available to the court for future construction of what that statute really means.

Address by Attorney General Edwin Meese III, National Press Club, Washington, D.C. (Feb. 25, 1986) (quoted in Garber and Wimmer, supra, at 367).

We do not attempt finally to decide here whether signing statements may legitimately be used in the manner described by Attorney General Meese. We believe it would be useful, however, to outline the main arguments for and against such use.

In support of the view that signing statements can be used to create a species of legislative history, it can be argued that the President as a matter both of constitutional right and of political reality plays a critical role in the legislative process. The Constitution prescribes that the President "shall from time to time . . . recommend to [Congress's] Consideration such Measures as he shall judge necessary and expedient." U.S. Const., art. II, § 3, cl. 1. Moreover, before a bill is enacted into law, it must be presented to the President. "If he approve it he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated." U.S. Const., art. I, § 7, cl. 2.(11) Plainly, the Constitution envisages that the President will be an important actor in the legislative process, whether in originating bills, in signing them into law, or in vetoing them. Furthermore, for much of American history the President has de facto been "a sort of prime minister or 'third House of Congress.' . . . [H]e is now expected to make detailed recommendations in the form of messages and proposed bills, to watch them closely in their tortuous progress on the floor and in committee in each house, and to use every honorable means within his power to persuade . . . Congress to give him what he wanted in the first place." Clinton Rossiter, The American Presidency, 110 (2d ed. 1960). It may therefore be appropriate for the President, when signing legislation, to explain what his (and Congress's) intention was in making the legislation law, particularly if the Administration has played a significant part in moving the legislation through Congress. And in fact several courts of appeals have relied on signing statements when construing legislation. See United States v. Story, 891 F.2d 988, 994 (2d Cir. 1989) (Newman, J.) ("though in some circumstances there is room for doubt as to the weight to be accorded a presidential signing statement in illuminating congressional intent, . . . President Reagan's views are significant here because the Executive Branch participated in the negotiation of the compromise legislation."); Berry v. Dep't of Justice, 733 F.2d 1343, 1349-50 (9th Cir. 1984) (citing President Johnson's signing statement on goals of Freedom of Information Act); Clifton D. Mayhew, Inc. v. Wirtz, 413 F.2d 658, 661-62 (4th Cir. 1969) (relying on President Truman's description in signing statement of proper legal standard to be used in Portal-to-Portal Act).

On the other side, it can be argued that the President simply cannot cannot speak for Congress, which is an independent constitutional actor and which, moreover, is specifically vested with "[a]ll legislative powers herein granted." U.S. Const., art. I, § 1, cl. 1. Congress makes legislative history in committee reports, floor debates and hearings, and nothing that the President says on the occasion of signing on a bill can reinterpret that record: once an enrolled bill has been attested by the Speaker of the House and the President of the Senate and has been presented to the President, the legislative record is closed. See Field v. Clark, 143 U.S. 649, 672 (1892). A signing statement purporting to explain the intent of the legislation is, therefore, entitled at most to the limited consideration accorded to other kinds of post-passage legislative history, such as later floor statements, testimony or affidavits by legislators, or amicus briefs filed on behalf of members of Congress. See Regional Rail Reorganization Act Cases, 419 U.S. 102, 132 (1974) ("post-passage remarks of legislators, however explicit, cannot serve to change the legislative intent of Congress expressed before the act's passage . . . . Such statements 'represent only the personal views of these legislators . . .'.").(12) Finally, it is arguable that "by reinterpreting those parts of congressionally enacted legislation of which he disapproves, the President exercises unconstitutional line-item veto power." Garber and Wimmer, supra, at 376. See also Constitutionality of Line-Item Veto Proposal, 9 Op. O.L.C. 28, 30 (1985) ("under the system of checks and balances established by the Constitution, the President has the right to approve or reject a piece of legislation, but not to rewrite it or change the bargain struck by Congress in adopting a particular bill").

Conclusion

Many Presidents have used signing statements to make substantive legal, constitutional or administrative pronouncements on the bill being signed. Although the recent practice of issuing signing statements to create "legislative history" remains controversial, the other uses of Presidential signing statements generally serve legitimate and defensible purposes.



Walter Dellinger
Assistant Attorney General

May 1, 2006

Power Surge: The Constitutional Record of George W. Bush

by Gene Healy and Timothy Lynch

Gene Healy is senior editor and author of "Arrogance of Power Reborn: The Imperial Presidency and Foreign Policy in the Clinton Years". Timothy Lynch is director of the Project on Criminal Justice and author of "Dereliction of Duty: The Constitutional Record of President Clinton."
(that oughta convince ya that this guy is no lib, Tico)

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Executive Summary Unfortunately, far from defending the Constitution, President Bush has repeatedly sought to strip out the limits the document places on federal power. In its official legal briefs and public actions, the Bush administration has advanced a view of federal power that is astonishingly broada president who cannot be restrained, through validly enacted statutes, from pursuing any tactic he believes to be effective in the war on terror;

;

and a federal government with the power to supervise virtually every aspect of American life, from kindergarten, to marriage, to the grave.

President Bush's constitutional vision is, in short, sharply at odds with the text, history, and structure of our Constitution, which authorizes a government of limited powers.

Let's assume arguendo they are "lawbreakers," as you seem to like the connotation associated with that word. What is the effect of their being branded as such? If the President is entirely justified in being a "lawbreaker" with regard to a law that is unconstitutional -- i.e. an illegal law -- then he has broken an illegal law. After all, which law is paramount: the unconstitutional law passed by Congress, or the Constitution itself? Those that insist the President enforce unconstitutional laws, are asking him to violate the Constitution .... which would be a violation of his Oath of Office.

Ticomaya wrote:

Let's assume arguendo they are "lawbreakers," as you seem to like the connotation associated with that word. What is the effect of their being branded as such? If the President is entirely justified in being a "lawbreaker" with regard to a law that is unconstitutional -- i.e. an illegal law -- then he has broken an illegal law. After all, which law is paramount: the unconstitutional law passed by Congress, or the Constitution itself? Those that insist the President enforce unconstitutional laws, are asking him to violate the Constitution .... which would be a violation of his Oath of Office.

Which legal authority, if any, can you cite that a president can ignore a law that he thinks is unconstitutional?

I am asking because to this non-lawyer, it would seem that the time for the President to raise any constitutional objections was back in the 1970s. That's when the bill sat on his desk, waiting to be ratified or sent back to Congress. Jimmy Carter, the president at the time, decided to sign the bill into law and not to raise any constitutional objections. Having made this decision, the president has affirmed that he thinks the law was constitutional. As private persons, Jimmy Carter and George Bush may well hold different views on this. But I would be very surprised if the president -- the office the constitution talks about -- can have changing views on the constitutionality of bills signed into law by different office holders. To convince me that they can, and that they can also ignore at will the bills signed into law by previous office holders, I would need much better legal authority than you have provided so far.

(PS: Your point about Clinton would be well-taken if this was a partisan debate. But it is not. So far I have seen neither Debra, nor Cyclo, nor FreeDuck, nor myself, nor anybody else defend Clinton's snooping and Clinton's intrusions into people's private lives.)

Debra_Law wrote:

We are a government of laws and all lawmaking power resides with the people's elected representatives in Congress. The president, our chief executive officer, is our elected servant. He is mandated to faithfully execute the laws that our elected lawmakers have enacted in accordance with the process set forth in the Constitution. The president's power to review congressional bills and approve or disapprove them is limited by the Constitution. See Article I, Section 7:

The President is not a slave to Congress. Congress cannot tell the President who to appoint to Cabinet positions, who he can pardon, or what he can veto, for instance. If Congress attempts to pass laws giving them that authority, said laws are unconstitutional and would be void ab initio. Show me where the Constitution grants Congress a general power to regulate the President, which is obviously what I was referring to -- I don't question that Congress has very limited authority over a President in limited circumstances. Try to do it succinctly, and without repeating yourself.

Whether he likes it or not; whether he approves or not; the president is mandated by the Constitution to faithfully execute the laws. He may not pick and choose what laws he will execute and what laws he will ignore or bypass whenever he chooses.

He is not mandated by the Constitution to execute laws that are unconstitutional.

It is the JUDICIAL BRANCH--NOT the Executive Branch--that is vested with the power to determine if a duly enacted law is unconstitutional and therefore void ab initio and unenforceable.

As I cited earlier ....

Quote:

Historical Examples of Constitutional Judgments By Presidents

For example, in the 1798 Alien and Sedition Acts, Congress sought to outlaw criticism of incumbents -- an obvious First Amendment violation. The federal courts, however, held otherwise.

Thomas Jefferson pardoned all those who had been convicted under the old Act, despite these court decisions. To Jefferson, the question was not simply what courts had done or might do, but what his own independent constitutional conscience dictated.

In 1832, President Andrew Jackson he vetoed a bill on constitutional grounds -- again, using independent judgment despite a prior court ruling. There, the Supreme Court had already upheld a similar bill against constitutional challenge. But Jackson wrote:

The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision.

Even the Supreme Court itself agrees to some extent: As Walter Dellinger observed when he served in the Office of Legal Counsel during the Clinton administration, the Court has "endorsed" the practice of a President's declining to enforce statutory requirements he views as unconstitutional.

. . . Moreover, as we discuss more fully below, numerous Presidents have provided advance notice of their intention not to enforce specific statutory requirements that they have viewed as unconstitutional, and the Supreme Court has implicitly endorsed this practice. See INS v. Chadha, 462 U.S. 919, 942 n.13 (1983) (noting that Presidents often sign legislation containing constitutionally objectionable provisions and indicate that they will not comply with those provisions).[/B]

No policy underlying the political question doctrine suggests that Congress or the Executive, or both acting in concert and in compliance with Art. I, can decide the constitutionality of a statute; that is a decision for the courts. 13

Or does that only apply if the President is a Democrat?

If the President does not want to "faithfully execute" a law that he believes is unconstitutional--a law that was passed over his objections--then the president must seek a declaration from the judicial branch that the law is unconstitutional. The president does not have the power to "approve" a bill by signing it into law and then immediately "disapprove" a law by refusing to faithfully execute it due to objections that he never allowed CONGRESS to consider.

To apply Cyclops analysis to your claim: The President has the power to refuse to execute a law if he believes it to be unconstitutional, to his heart's content. The Judiciary will decide whether or not the law is in face unconstitutional, and Congress can choose whether or not to Impeach the president if it isn't. But he does have the power to refuse to execute a law if he believes it to be unconstitutionial. It's inherent in his power as the Executive.

He is depriving CONGRESS of its constitutional role in our government; he is depriving the JUDICIARY of its constitutional role in our government. He is unconstitutionally evading the checks and balances built into our system of government and has made himself a dictator--a "ruler" who is unconstrained by the law--rather than a servant whose job it is to faithfully execute the laws..

Nonsense ... the checks and balances exist, and you've failed to make a case that Bush has made himself a dictator. And you sound ridiculous for making that assertion.

Ticomaya wrote:

Debra_Law wrote:

We are a government of laws and all lawmaking power resides with the people's elected representatives in Congress. The president, our chief executive officer, is our elected servant. He is mandated to faithfully execute the laws that our elected lawmakers have enacted in accordance with the process set forth in the Constitution. The president's power to review congressional bills and approve or disapprove them is limited by the Constitution. See Article I, Section 7:

The President is not a slave to Congress. Congress cannot tell the President who to appoint to Cabinet positions, who he can pardon, or what he can veto, for instance. If Congress attempts to pass laws giving them that authority, said laws are unconstitutional and would be void ab initio. Show me where the Constitution grants Congress a general power to regulate the President, which is obviously what I was referring to -- I don't question that Congress has very limited authority over a President in limited circumstances. Try to do it succinctly, and without repeating yourself.

I have shown you where the Constitution grants Congress the power that you allege Congress doesn't have. The fact that you ignore what has been shown and demand that people do not repeat themselves simply indicates your desire to continue to ignore the facts and the law. You choose to live in fantasy land where you make things up.

Ticomaya wrote:

As I cited earlier ....

Quote:

Historical Examples of Constitutional Judgments By Presidents

For example, in the 1798 Alien and Sedition Acts, Congress sought to outlaw criticism of incumbents -- an obvious First Amendment violation. The federal courts, however, held otherwise.

Thomas Jefferson pardoned all those who had been convicted under the old Act, despite these court decisions. To Jefferson, the question was not simply what courts had done or might do, but what his own independent constitutional conscience dictated.

The president clearly has the power to pardon for whatever reasons he chooses. The president could pardon Ted Bundy if he wanted to do so.

IF, however, Congress had passed a law that prohibited the president from using his power to pardon, then maybe your argument would be relevant to our discussion.

IF Congress had passed a law that prohibited the president from using his power to pardon, then the president could simply instruct his White House counsel to petition the court for a declaration that the law is unconstitutional.

Problem solved.

Ticomaya wrote:

Even the Supreme Court itself agrees to some extent: As Walter Dellinger observed when he served in the Office of Legal Counsel during the Clinton administration, the Court has "endorsed" the practice of a President's declining to enforce statutory requirements he views as unconstitutional.

I can find no evidence that the Court has "endorsed" any practice of a President's declining to enforce statutory requirements that he views as unconstitutional.

In the Delliger's memo, the closest that he comes to saying this is here:

Quote:

. . . Moreover, as we discuss more fully below, numerous Presidents have provided advance notice of their intention not to enforce specific statutory requirements that they have viewed as unconstitutional, and the Supreme Court has implicitly endorsed this practice. See INS v. Chadha, 462 U.S. 919, 942 n.13 (1983) (noting that Presidents often sign legislation containing constitutionally objectionable provisions and indicate that they will not comply with those provisions).[/B]

Dellinger cites footnote 13 of the INS v. CHADHA case in attempt to substantiate his view that the court implicitly endorsed presidential refusals to enforce statutes. However, his citation is deceptive. If we look at the actually passage of the Supreme Court decision that is footnoted, we find that the Court said this:

Quote:

No policy underlying the political question doctrine suggests that Congress or the Executive, or both acting in concert and in compliance with Art. I, can decide the constitutionality of a statute; that is a decision for the courts. 13

INS v. CHADHA, 462 U.S. 919 (1983)
http://laws.findlaw.com/us/462/919.html

How dishonest is that? Delliger is suggesting that the Court impliedly endorsed a practice that the Court expressly denounced. Although the Court recognized that presidents may often approve (sign) legislation when the president may believe that parts of it may be unconstitutional, that does not allow the president to declare the objectional parts unconstitutional and refuse to enforce them. The court decides the constitutionality of statutes.

[ Footnote 13 ] The suggestion is made that 244(c)(2) is somehow immunized from constitutional scrutiny because the Act containing 244(c)(2) was passed by Congress and approved by the President. Marbury v. Madison, 1 Cranch 137 (1803), resolved that question. The assent of the Executive to a bill which contains a provision contrary to the Constitution does not shield it from judicial review. See Smith v. Maryland, 442 U.S. 735, 740 , n. 5 (1979); National League of Cities v. Usery, 426 U.S. 833, 841 , n. 12 (1976); Buckley v. Valeo, 424 U.S. 1 (1976); Myers v. United States, 272 U.S. 52 (1926). See also n. 22, infra. In any event, 11 Presidents, from Mr. Wilson through Mr. Reagan, who have been presented with this issue have gone on record at some point to challenge congressional vetoes as unconstitutional. See Henry, The Legislative Veto: In Search of Constitutional Limits, 16 Harv. J. Legis. 735, 737-738, n. 7 (1979) (collecting citations to Presidential statements). Perhaps the earliest Executive expression on the constitutionality of the congressional veto is found in Attorney General William D. Mitchell's opinion of January 24, 1933, to President Hoover. 37 Op. Atty. Gen. 56. Furthermore, it is not uncommon for Presidents to approve legislation containing parts which are objectionable on constitutional grounds. For example, after President Roosevelt signed the Lend-Lease Act of 1941, Attorney General Jackson released a memorandum explaining the President's view that the provision allowing the Act's authorization to be terminated by concurrent resolution was unconstitutional. Jackson, A Presidential Legal Opinion, 66 Harv. L. Rev. 1353 (1953).

The law does not allow one to do indirectly what the law forbids him from doing directly. Inasmuch as the Court has declared "line-item vetos" to be an unconstitutional presidential power--the Court does not endorse a practice that would allow the president to do indirectly what he is not allowed to do directly.

Ticomaya wrote:

Or does that only apply if the President is a Democrat?

I do not endorse the breaking of our laws by any president, democrat or republican. I do not endorse the dishonest manipulation of our Constitution and our case law by the president's lawyers who are pursuing the president's political agenda to usurp the people's power (that we wield through our representatives in Congress) in order to place that power in his own lawless, authoritarian hands.

How can I be the ridiculous one when you're the one residing in fantasy land? It would be nice if you would emerge from your residence in your fantasy world (where the real law and the true facts do NOT exist), but I fear that your particular residency is permanent. For those of us living in the real world, we see the president for the lawbreaker that he is and most of your neighbors have left fantasy land to join us in our real life observations. The majority of the people don't like what they see.

Cycloptichorn wrote:

Thanks for the response, Tico.

Can you tell me what the relevant portion of the meyers case is? I don't have time to read 40 pages of 1926 legalese, and from what I can see, this case revolves around the removal of postmasters, not declaring laws UnConstitutional.

Congress passed a law limiting the power of the President to remove first-class postmasters ... the President ignored it ... the Supreme Court ruled the law was in violation of the Constitution and invalid ... the Court did not find the President overstepped his authority.

In 1994, Clinton Asst. A.G. Walter Dellinger wrote:

One example of a Presidential challenge to a statute encroaching upon his powers that did result in litigation was Myers v. United States, 272 U.S. 52 (1926). . . .

The Court in Myers can be seen to have implicitly vindicated the view that the President may refuse to comply with a statute that limits his constitutional powers if he believes it is unconstitutional.

Show me where the Constitution grants Congress a general power to regulate the President, which is obviously what I was referring to -- I don't question that Congress has very limited authority over a President in limited circumstances. Try to do it succinctly, and without repeating yourself.

I have shown you where the Constitution grants Congress the power that you allege Congress doesn't have. The fact that you ignore what has been shown and demand that people do not repeat themselves simply indicates your desire to continue to ignore the facts and the law. You choose to live in fantasy land where you make things up.

My request that you not repeat yourself was an attempt to dissuade you from your usual piling on of repetitious matter, as if it bolsters your case. Your tendency is to make a point, then -- apparently thinking we didn't understand what you said -- you make the same point again.

Ticomaya wrote:

Cycloptichorn wrote:

Thanks for the response, Tico.

Can you tell me what the relevant portion of the meyers case is? I don't have time to read 40 pages of 1926 legalese, and from what I can see, this case revolves around the removal of postmasters, not declaring laws UnConstitutional.

Congress passed a law limiting the power of the President to remove first-class postmasters ... the President ignored it ... the Supreme Court ruled the law was in violation of the Constitution and invalid ... the Court did not find the President overstepped his authority.

The question whether the President had "overstepped his authority" was not at issue. The issue was whether Myers was entitled to recover his unpaid salary.

Ticomaya wrote:

In 1994, Clinton Asst. A.G. Walter Dellinger wrote:

One example of a Presidential challenge to a statute encroaching upon his powers that did result in litigation was Myers v. United States, 272 U.S. 52 (1926). . . .

The Court in Myers can be seen to have implicitly vindicated the view that the President may refuse to comply with a statute that limits his constitutional powers if he believes it is unconstitutional.

Again, Dellinger is deceptively relying on his suggestion that the Court "IMPLICITLY" vindicated the view that the President may refuse to comply with a statute if he believes it is unconstitutional. There is nothing in the Court's opinion that would allow any sane person to claim that the Court implicitly endorsed or vindicated presidential lawbreaking.

<blah, blah, blah ... SNIP>

The Court examined the long history of presidential powers of removal and found that the law of 1876 denied the President of the power of removal of first-class postmasters in violation of the Constitution. The Court found that the law was invalid. However, the Court did not expressly or implcitly endorse the President's violation of the law. Indeed, Justice McREYNOLDS expressly admonished the president when he stated the following:

"A certain repugnance must attend the suggestion that the President may ignore any provision of an act of Congress under which he has proceeded. He should promote and not subvert orderly government. . . .

Justice McREYNOLDS was emphatic in his view that the president does not have the power to override the will of Congress. Justice BRANDEIS and Justice HOLMES also submitted scathing dissents.

In our country, self-help is not encouraged. Self-help is criticized and discouraged. The President was not required to break the law in order to vindicate his perceived constitutional authority. At all times, the president had the right to seek a declaratory judgment in a court of competent jurisdiction that the law unconstitutionally restricted his powers of removal. Instead, he chose to defy Congress and take the law into his own hands by violating it. We don't condone that type of conduct for ordinary citizens and we can't condone it for our elected officials.

President Bush is a lawbreaker. I cannot find any support in Myers or any other case for the proposition that the Court endorses any practice that allows the president to refuse to enforce, bypass, or violate our laws.

Ticomaya wrote:

Show me where the Constitution grants Congress a general power to regulate the President, which is obviously what I was referring to -- I don't question that Congress has very limited authority over a President in limited circumstances. Try to do it succinctly, and without repeating yourself.

Debra wrote:

I have shown you where the Constitution grants Congress the power that you allege Congress doesn't have. The fact that you ignore what has been shown and demand that people do not repeat themselves simply indicates your desire to continue to ignore the facts and the law. You choose to live in fantasy land where you make things up.

Ticomaya wrote:

My request that you not repeat yourself was an attempt to dissuade you from your usual piling on of repetitious matter, as if it bolsters your case. Your tendency is to make a point, then -- apparently thinking we didn't understand what you said -- you make the same point again.

You say "show me" and you are shown.

Then you ignore what has been shown and you again demand, "show me."

When you quit ignoring what people have shown you, people won't be forced to repeat themselves by showing you again.

When you have a legitimate complaint about posting, let us know.

Debra_Law wrote: When you quit ignoring what people have shown you, people won't be forced to repeat themselves by showing you again.

Tico wrote: I've observed you do it regularly, and not just when you're responding to me. I don't think the problem lies with me.

Tico, I've noticed that you have what appears to be an uncanny ability to see only what you want to see. I hope this is just an act and it doesn't extend to your real life.

You've still not shown where the Constitution grants Congress a general power to regulate the President.

[ Footnote 13 ] The suggestion is made that 244(c)(2) is somehow immunized from constitutional scrutiny because the Act containing 244(c)(2) was passed by Congress and approved by the President. Marbury v. Madison, 1 Cranch 137 (1803), resolved that question. The assent of the Executive to a bill which contains a provision contrary to the Constitution does not shield it from judicial review. See Smith v. Maryland, 442 U.S. 735, 740 , n. 5 (1979); National League of Cities v. Usery, 426 U.S. 833, 841 , n. 12 (1976); Buckley v. Valeo, 424 U.S. 1 (1976); Myers v. United States, 272 U.S. 52 (1926). See also n. 22, infra. In any event, 11 Presidents, from Mr. Wilson through Mr. Reagan, who have been presented with this issue have gone on record at some point to challenge congressional vetoes as unconstitutional. See Henry, The Legislative Veto: In Search of Constitutional Limits, 16 Harv. J. Legis. 735, 737-738, n. 7 (1979) (collecting citations to Presidential statements). Perhaps the earliest Executive expression on the constitutionality of the congressional veto is found in Attorney General William D. Mitchell's opinion of January 24, 1933, to President Hoover. 37 Op. Atty. Gen. 56. Furthermore, it is not uncommon for Presidents to approve legislation containing parts which are objectionable on constitutional grounds. For example, after President Roosevelt signed the Lend-Lease Act of 1941, Attorney General Jackson released a memorandum explaining the President's view that the provision allowing the Act's authorization to be terminated by concurrent resolution was unconstitutional. Jackson, A Presidential Legal Opinion, 66 Harv. L. Rev. 1353 (1953).

No policy underlying the political question doctrine suggests that Congress or the Executive, or both acting in concert and in compliance with Art. I, can decide the constitutionality of a statute; that is a decision for the courts. 13

Now, can you show me ANY Supreme Court opinion where the Court has stated the President cannot do this -- which you claim makes Bush a "crook and lawbreaker," yet has been done by many, many Presidents.

Ticomaya wrote:
You've still not shown where the Constitution grants Congress a general power to regulate the President.

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

To make rules for the government and regulation of the land and naval forces;

Other than the fact that the Court observed Wilson do that very thing, and did not comment that the President ignoring the law was illegal. If that isn't an implicit endorsement or vindication of the action, I don't know what is.

VI

Although they are implicit in what we have already written, the profound importance of these cases makes it appropriate to emphasize three points.

First, we express no opinion about the wisdom of the procedures authorized by the Line Item Veto Act. Many members of both major political parties who have served in the Legislative and the Executive Branches have long advocated the enactment of such procedures for the purpose of "ensur[ing] greater fiscal accountability in Washington." H. R. Conf. Rep. 104-491, p. 15 (1996). 41

The text of the Act was itself the product of much debate and deliberation in both Houses of Congress and that precise text was signed into law by the President. We do not lightly conclude that their action was unauthorized by the Constitution. 42

We have, however, twice had full argument and briefing on the question and have concluded that our duty is clear.

Second, although appellees challenge the validity of the Act on alternative grounds, the only issue we address con- cerns the "finely wrought" procedure commanded by the Constitution. Chadha , 462 U.S., at 951 . We have been favored with extensive debate about the scope of Congress' power to delegate law-making authority, or its functional equivalent, to the President. The excellent briefs filed by the parties and their amici curiae have provided us with valuable historical information that illuminates the delegation issue but does not really bear on the narrow issue that is dispositive of these cases. Thus, because we conclude that the Act's cancellation provisions violate Article I, §7, of the Constitution, we find it unnecessary to consider the District Court's alternative holding that the Act "impermissibly disrupts the balance of powers among the three branches of government." 985 F. Supp., at 179. 43

Third, our decision rests on the narrow ground that the procedures authorized by the Line Item Veto Act are not authorized by the Constitution. The Balanced Budget Act of 1997 is a 500-page document that became "Public Law 105-33" after three procedural steps were taken: (1) a bill containing its exact text was approved by a majority of the Members of the House of Representatives; (2) the Senate approved precisely the same text; and (3) that text was signed into law by the President. The Constitution explicitly requires that each of those three steps be taken before a bill may "become a law." Art. I, §7. If one paragraph of that text had been omitted at any one of those three stages, Public Law 105-33 would not have been validly enacted. If the Line Item Veto Act were valid, it would authorize the President to create a different law one whose text was not voted on by either House of Con gress or presented to the President for signature. Something that might be known as "Public Law 105-33 as modified by the President" may or may not be desirable, but it is surely not a document that may "become a law" pursuant to the procedures designed by the Framers of Article I, §7, of the Constitution.

If there is to be a new procedure in which the President will play a different role in determining the final text of what may "become a law," such change must come not by legislation but through the amendment procedures set forth in Article V of the Constitution. Cf. U. S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 837 (1995).