An epidemic of constitutional illiteracy threatens our nation
Constitutional illiteracy is epidemic among the nation’s political leadership.
It has begotten a counterrevolution against our nation’s highest law in favor of an executive branch that is pursuing Empire for the sake of Empire, as evidenced by the unconstitutional signing statement appended to President Biden’s approval of the National Defense Authorization Act for fiscal 2022.
Various provisions of the act require the executive branch to share with congressional committees reports that would include classified information, such as intelligence sources and methods or military operational plans. This sharing with Congress to enable oversight is neither historically nor constitutionally dubious. As Roman satirist and poet Juvenal asked, “But who guards the guardians?”
The Manhattan Project during World War II, for example, was disclosed to congressional leadership. There were no congressional leaks. Vannevar Bush, a prominent science adviser to the project, praised oversight as necessary to keep the executive branch honest. Congress possesses the means to safeguard classified information, and has shown itself to be adept in the protective of secrets.
President Biden’s December statement declared that he alone would decide what sensitive information to share with Congress, irrespective of the NDAA’s text. After stating he was signing into law the entire bill, the president hypocritically proclaimed, “The Constitution vests the President with the authority to prevent the disclosure of such highly sensitive information in order to discharge his responsibility to protect the national security.” Accordingly, said Biden, he would disregard the plain meaning of the law in favor of limitless discretion over national security information.
Nonsense on stilts. Not a single express or implied word in the Constitution endows the president with authority to withhold from Congress information related to the security of the republic. Responsibility resides predominantly with Congress, as Alexander Hamilton elaborated in Federalist 69:
The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.
George Washington similarly underscored congressional responsibility for national security: “The Constitution vests the power of declaring war in Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure.”
President Biden has no plausible ground for thinking the NDAA unconstitutionally encroached on his executive power, either in whole or in part. Under the Constitution, he had but two choices in confronting the bill: either sign the NDAA in its entirety or issue a veto, subject to a congressional override by two-thirds majorities in both chambers.
A line-item veto of provisions causing him anguish is not an option. President Washington, adhering to the text and purpose of the legislative process in Article I, section 7, instructed, “[A President] must approve all the parts of a bill, or reject it in toto.” Washington’s understanding was echoed by the United States Supreme Court in Clinton v. New York, which held line-item veto legislation unconstitutional. The 2006 ABA Task Force on Presidential Signing Statements (on which I served) similarly concluded that signing statements declaring the president’s intent to disregard provisions of law he proclaims are unconstitutional are themselves extraconstitutional.
Signing statements handicap separation of powers by impairing congressional leverage over the president in the legislative process — that is, forcing the president to take the bitter with the sweet or nothing at all.
Congress has done nothing to arrest unconstitutional signing statements since their mushrooming use under the Bush-Cheney presidency was brought to light. I would wager you can count on one hand, with fingers left over, the members of Congress who understand the constitutional infirmity of signing statements, and their duty to protect their legislative prerogatives.
And thus, President Biden’s statement will escape challenge, and the counterrevolution against the Constitution will continue unabated.
Bruce Fein was an associate deputy attorney general under President Reagan. He served on the 2006 ABA Task Force on Presidential Signing Statements, and authored “Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy.”
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