At Volokh Conspiracy, Will Baude: Should President Obama (and President George H.W. Bush before him) have signed an unconstitutional law? (responding to this post, where I said no). His view:
As I argue in “Signing Unconstitutional Laws,” signing an unconstitutional bill is not in itself unconstitutional. The Constitution does not contain a categorical duty to veto unconstitutional laws; and because unconstitutional provisions are legally void, no constitutional violation happens when they are enacted. That means that what Obama and Bush did is not inherently unconstitutional.
But, I also argued, signing an unconstitutional bill creates a risk – a risk that the unconstitutional provision will mistakenly be enforced in the future, whether by a court, a new president with different constitutional views, or some other way. The president’s oath to the Constitution does not allow him to take those constitutional risks lightly. As a matter of structure and tradition, I argued, there must be some countervailing constitutional duty that justifies signing the bill — generally because the bill contains other provisions that help to enforce constitutional rights or protect the country against invasion.
Posted at 6:55 AM