Presidential Constitutional Interpretation, Signing Statements, Executive Power, and Zivotofsky, by Henry L. Chambers, Jr.

As noted in Dean Harold H. Bruff’s superb book, Untrodden Ground: How Presidents Interpret the Constitution, the President of the United States routinely interprets the United States Constitution. How aggressively the President should interpret the Constitution is subject to significant dispute. This Article considers that issue in the context where the President is the most aggressive, i.e., when threatening to decline to enforce a federal statute because the President believes the statute is unconstitutional. Such action has become increasingly common in the past few decades as Presidents have increasingly promulgated constitutional signing statements, official statements explaining how the President will enforce or decline to enforce enacted legislation based on the President’s opinion regarding the legislation’s constitutionality. The latitude the President has or should have to interpret the Constitution is particularly important in areas such as foreign policy and national defense, where the President claims plenary constitutional authority. Whether constitutional signing statements fit comfortably within our constitutional structure or are in derogation of that structure may depend on how aggressively the President interprets the Constitution.

 

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