During oral arguments in Zivotofsky v. Kerry, in response to a question by Chief Justice Roberts about signing statements, Solicitor General Donald Verrilli cited Myers v. United States, the removal case. I don’t think this was the correct citation, as it is not cited in the SG’s brief.
CHIEF JUSTICE ROBERTS: So we should give no weight to the fact that the Chief Executive signed the law that he is now saying has such a dramatic that his successor, but I gather the position is the same is now saying has such deleterious effects on American foreign policy? Well, as a general matter, does that have any consequence at all?
GENERAL VERRILLI: No. I mean, I think this Court held in Myers that the fact that one President signed a law that violated separation of powers doesn’t have any effect.
Does anyone know what he meant to cite? Adam White suggested that it may be PCAOB, although that case doesn’t seem to cite Myers for this proposition. Any idea? His answer to the Chief is an important point.
Update: I think Greg gets the reference right in the comments:
I assumed he meant that the relevant law in Myers had originally been signed by the President- in 1876. Nevertheless, President Wilson was free to argue that the law violated the SoP, and the Court ultimately accepted that argument. IOW, the Executive is not estopped from raising a SoP argument just because a previous executive chose to sign the bill.
That is a great connection, which I didn’t make.
Update 2: Will Baude connects it:
I think it’s this passage, from page 170 of Chief Justice William Howard Taft’s opinion in Myers:
In spite of the foregoing Presidential declarations, it is contended that, since the passage of the Tenure of Office Act, there has been general acquiescence by the Executive in the power of Congress to forbid the President alone to remove executive officers — an acquiescence which has changed any formerly accepted constitutional construction to the contrary.Instances are cited of the signed approval by President Grant and other Presidents of legislation in derogation of such construction. We think these are all to be explained not by acquiescence therein, but by reason of the otherwise valuable effect of the legislation approved. Such is doubtless the explanation of the executive approval of the Act of 1876, which we are considering, for it was an appropriation act on which the section here in question was imposed as a rider.