ABSTRACT:

This short essay for a symposium addresses the presidential practice of signing a bill into law while stating that one will not enforce certain provisions in it that the President considers unconstitutional. This essay argues that the practice is always unconstitutional, irrespective of whether one believes that the President possesses the power to not-enforce. If one believes that the President lacks the power to not-enforce provisions that he believes are unconstitutional, then, of course, the President cannot “sign and not-enforce.” But even if one believes that the President has this power to not-enforce, the President still cannot sign and not-enforce. If the President concludes that the Constitution forbids him from [...]]]> Michael Rappaport (University of San Diego) has posted The Unconstitutionality of ‘Signing and Not-Enforcing’ on SSRN:

ABSTRACT:

This short essay for a symposium addresses the presidential practice of signing a bill into law while stating that one will not enforce certain provisions in it that the President considers unconstitutional. This essay argues that the practice is always unconstitutional, irrespective of whether one believes that the President possesses the power to not-enforce. If one believes that the President lacks the power to not-enforce provisions that he believes are unconstitutional, then, of course, the President cannot “sign and not-enforce.” But even if one believes that the President has this power to not-enforce, the President still cannot sign and not-enforce. If the President concludes that the Constitution forbids him from enforcing part of a bill, then he must also conclude that it forbids him from signing that bill. A decision to sign a bill and not-enforce part of it impermissibly treats the Constitution as a matter of presidential discretion rather than as supreme law that always binds the President.

In making this argument, I generally employ an originalist-formalist conception of law, which I believe provides the proper approach to the Constitution. The essay, however, does briefly examine signing and not-enforcing under a nonoriginalist-functionalist approach, concluding that there is a strong case for reading the Constitution as largely, and perhaps categorically, prohibiting signing and not-enforcing.

I am increasingly skeptical of part of Waldron’s premise – that the Supreme Court is in fact the final definer of rights the U.S. system – but his work nonetheless raises an interesting and [...]]]> Jeremy Waldron, public law scholar extraordinaire, gave the John A. Sibley Lecture at the University of Georgia yesterday. Waldron is perhaps best known for his writing on rights and judicial review. Once core concepts of equality and participation are secured, Waldron says, debates over rights necessarily become debates over essentially contested value choices. As such, he argues they should be defined primarily through legislative, not judicial, methods. He thus is critical of U.S. style judicial review, preferring the legislative supremacy model traditionally favored by Great Britain and his native New Zealand.

I am increasingly skeptical of part of Waldron’s premise – that the Supreme Court is in fact the final definer of rights the U.S. system – but his work nonetheless raises an interesting and troubling point about how we talk about rights. We often use the word “right” in an absolutist way. But of course none of the rights protected by the Constitution are absolute; rather, they are protected only to the extent that they are not trumped by the needs of society or others.

Advocates of different schools of constitutional interpretation have different ways of talking about that fact. Originalists argue that the necessary balancing between individual interests and societal needs was done by the founders, and our job is merely to respect the balance they struck. Thus, for example, perjury is not protected by the First Amendment – even though perjury is speech and the First Amendment is worded in absolute terms – because the founders did not understand it to be part of the “speech” they were protecting. Non-originalitists, on the other hand, argue that perjury is not protected because the need for accurate information in a courtroom outweighs an individual’s interest in lying under oath. Either method ends up at the same place: our right to free speech is not absolute.

The problem with our way of talking about rights as absolute is not (or not just) that it is inaccurate, but that it turns rights claims into conversation stoppers: I have a right, so I win. End of discussion. Not only is this highly unlikely to be persuasive to anyone who does not already agree with you, but its inherent thinness masks the rich interplay of individual and societal needs underlying rights claims. It also cuts short consideration of why a right to free speech (or equal protection or due process) is worth protecting. This leads, I fear, to an under appreciation of the substantive reasons for cherishing these things in the first place. Waldron argues that rights claims are opportunities to persuade. I suspect our public dialogue would be well-served if we treated them as such.

The article explores how the new no-money down, interest only, adjustable rate loans encouraged a subtle but distinct change in how we think about the homes we live in; a shift from buying homes as homes to buying houses as investments.

For decades, Americans bought homes. Doing so signaled the buyer’s middle class status and commitment to his or her community. The housing market was relatively stable, [...]]]> There is nothing like being both a buyer and a seller in the current housing market to focus one’s attention on the avalanche of housing news available these days (current status: national market down; local market down; my micro market stable). Within this informational bounty, however, I have found few news articles as thought provoking as this NY Times piece.

The article explores how the new no-money down, interest only, adjustable rate loans encouraged a subtle but distinct change in how we think about the homes we live in; a shift from buying homes as homes to buying houses as investments.

For decades, Americans bought homes. Doing so signaled the buyer’s middle class status and commitment to his or her community. The housing market was relatively stable, so most long-term owners would eventually see a tidy profit on their purchases. But their homes were first and foremost places to live. In the midst of the recent housing bubble, that changed. We still, of course, lived in our houses, but rapidly escalating prices and the lack of other savings encouraged owners to start viewing their houses first and foremost as investment vehicles.

This shift is obvious to anyone who, like me, is an HGTV addict. Rarely do you see an HGTV host praise a homeowner’s decision to paint her house purple because it is her daughter’s favorite color. On a recent episode, one woman tried to explain to the host that while she and her husband had probably “overinvested” in their beautiful backyard, they valued outdoor living and thought the decision was worth it – even if they did not recoup the money on the resale. The host looked at her as if she were speaking Klingon.

This shift – from houses as homes to houses as investments – raises interesting public policy questions. Should the government subsidize (through the mortgage tax deduction) this type of investment? The mortgage tax deduction for owner-occupied residences now costs $430.2 billion and is projected to be the fourth largest federal tax expenditure in 2007-2011. Subsidizing home ownership this way may have been a reasonable public policy choice when such ownership brought with it the type of investment in and care for a community that increased property values and quality of life for entire neighborhoods, but does it makes sense in light of an investment mentality that may be encouraging (or forcing) people to “walk away” from purchase choices gone bad?

And what of the social phenomena that promotes home ownership as an essential part of the American dream? If achieving home ownership requires the type of high-risk loans that contributed to our recently burst bubble, is it time to start rethinking our national mantra extolling the virtues of ownership for all? If so, how can we change our public dialogue so home ownership is no longer viewed as an essential element of a middle-class life? The current housing crisis offers us an opportunity to think about these types of underlying issues.