Free the Supreme Court Nine!

The American Bar Association just called George W. Bush's signing statements a "threat to our Republic." Walter Dellinger, a Democrat and one of the nation's most respected legal scholars, just countered that "every modern president" has asserted the authority Bush now asserts. At issue is whether the president can decline to enforce provisions of new laws, if he considers the provisions unconstitutional. Surely, 128 years from now, the Supreme Court will settle this matter. My proposal -- we allow the Supreme Court to settle the matter immediately, by issuing an "advisory opinion."

Bush has inked lots of signing statements, prominently on John McCain's torture-ban legislation, and in them reserved authority to disregard those provisions of new laws that he considers unconstitutional. Many editorialists and editorial cartoonists have depicted this as some kind of shocking outrage, though as Dellinger points out, Bush's claim is no different from a claim made by all modern presidents. Any president's (actually, any executive branch officer's) first allegiance is to the Constitution. If the president believes a provision of a bill is unconstitutional, he not only may ignore it, it must ignore it.

While courts have the most say in interpreting laws, it is a misconception that only courts may interpret laws: the executive branch could not function if the president (and other officers) were forbidden to interpret laws. As my brother Frank, a federal appellate judge, wrote in 1990 in Case Western Law Review, , "We live in a constitutional republic in which many actors hold overlapping powers. Powers are not so much separated as duplicated and distributed, so that concurrent approval is necessary to action. This is not an efficient system; it is designed to frustrate all claims of power. Presidential review fits neatly in such a framework." It is a political-science urban myth that a president must either veto a bill or enforce every word. That a president may enforce some parts of a new law and disregard others is well-established.

The real issue is not whether George W. Bush can disregard provisions of new laws if he thinks the provisions unconstitutional. The real issue is whether he's right in thinking this. How can we figure out if he's right? The best way is to ask the Supreme Court. The Supreme Court is not to sole arbiter of constitutionality -- that's another common misconception -- but is surely the highest arbiter. In 1994 Dellinger, then a Justice Department official under President Bill Clinton, wrote a memo the president's prerogative to disregard new-law provisions he viewed as unconstitutional. Dellinger cautions, "In some instances, only a president's decision to refuse to execute a law will create the opportunity for judicial review of the disrupted issue. In other cases the reverse may be true. Proper deference to the [Supreme Court]... generally favors whichever course of action facilities the court's involvement." But even if a president acts with proper deference, it may be years or decades until some party acquires legal standing to sue over the president's interpretation. Then more years or centuries till the litigation crawls its way through the system and produces a Supreme Court ruling.

Here would be a much faster and more satisfactory approach: allow the Supreme Court to issue "advisory opinions." Suppose the president signs the Airport Reforestation Act of 2006, but issues a signing statement declaring that he considers unconstitutional its provision requiring all female pop stars named Simpson to get nose jobs. Rather than wait years for a lawsuit to arise, the White House sends the Supreme Court a letter asking for an advisory opinion. The court meets, votes on whether the president's interpretation is right, and announces its advice. Within weeks, everyone knows whether the provision must be enforced.

Wouldn't it be great if the Supreme Court would simply tell us, this summer, whether George W. Bush really can refuse to enforce parts of the anti-torture law? The problem is that George Washington asked for an advisory opinion in 1793, and the court said no. Article III, Section 2 of the Constitution, the first justices thought, limits them to "cases and controversies" -- that is, lawsuits.

The high courts of many states have an advisory opinion power, and it's a good system. Why not add this to the Supreme Court's docket? The justices are scarcely overworked; they could spend a few hours each week reviewing whether the president is right to say that particular provisions of new laws are unconstitutional. Perhaps a constitutional amendment -- always a last resort -- would be required for the Supreme Court to gain advisory power. Perhaps all that would be needed is a reinterpretation of Article III, Section 2. "Controversies" then meant disputes between states or nations. Today it may mean, well, controversies; other original words have been reinterpreted in light of changes in society.

We should not be in a tizzy about whether the president is right regarding the constitutionality of the anti-torture law, or any new-law provisions. We should get a clear, prompt answer from the Supremes.