Friday, June 30, 2006

Presidential Signing Statements

Lost amongst and between the end of the OT 05 Term and the political developments of recent weeks was a Senate Judiciary Committee hearing regarding the legality and constitutionality of signing statements issued by Presidents of the United States. The testimony of the witnesses can be found here, and I recommend reading them all, as they provide a pretty complete and well-balanced overview of the issue. Click Read More to continue reading.

So why take up a post here at TPS about such a mundane, esoteric topic? Well besides the fact that these are the types of things that I’m developing a reputation for, I wanted to demonstrate that I am capable of discussing and advocating for something other than the privileges and prerogatives of Congress. Simply put, I don’t believe that signing statements are unconstitutional or illegal in any way. I think that they are part of the inherent functions of the Executive branch and are consistent with the institution’s “duty to take care that the laws are faithfully executed.” That said, it seems to me that from an interpretation point of view, signing statements must be given no more weight than congressional legislative history, and in many ways are arguably less important than that.

First, let’s make sure we’re clear about what we are discussing. When the President signs legislation into law, he often, more often in this administration than any other, issues a statement which attempts to put his gloss on what exactly he is signing into law. In several high profile situations, most recently the Detainee Treatment Act, which was part of the Hamdan decision, the President’s statement has arguably indicated that he will not enforce the law in the manner that Congress intended. Rather than veto legislation that contains provisions the President believes to be unconstitutional, some have argued that the President has utilized these “signing statements” to instruct the executive branch as to which parts of laws they can ignore or not abide by. Others have argued that the statements represent no such thing, but rather are interpretations that guide the executive branch as to “how” to interpret or enforce congressional enactments consistent with the powers and rights of the President. Fact is that I think both positions over inflate the importance of such statements.

Second, let me make clear that I do not think, as some do, that these statements are unconstitutional or illegal. The President, like Congress, is perfectly free to offer public interpretations of what the Constitution means and how those interpretations are going to be used by officers and agencies of the executive branch. So if that’s the case, what, if anything, is the big deal about these statements? Well, there are a couple of things. Initially, if the President thinks that Congress has unconstitutionally encroached into executive powers, he should simply veto the bill and issue a veto message to that effect. Signing the legislation into law, regardless of constitutionally, arguably invokes the President’s duty to faithfully execute it. Presumably, our system works like this, Congress passes laws, the President enforces laws, and the Court interprets what the law means. Permitting the President to interpret the law before executing it arguably muddles this tripartite system. Now, sure, one can argue that the President’s duty to take care only extends to enforcement consistent with the Constitution, but when the two branches disagree as to what that involves, what is the remedy? Go to court? Maybe, but that takes time and often there is no “case or controversy” because nothing has happened yet, or there is no actual injury to anyone (as with many of the President’s signing statements that merely reject “reporting requirements” to Congress) and, therefore, no standing to bring the issue to a court. Here is where this Administration has been exceedingly creative and cautious. Few, if any, of the provisions objected to via signing statements create justiciable “cases or controversies” as required by Article III of the Constitution. Rather, they are needles in the side of the legislative branch, heckling them and attempting to expand the scope of Executive power, because they know that Congress isn’t going to do anything about it. Are the statements, wrong? No, at least not in a legal or constitutional sense, but are some of them misguided; absolutely.

Especially misguided, in my opinion, are the ones relating to congressional reporting requirements. Congress is entitled to information from the Executive branch, regardless of whether they want to disclose it or not. The only real remedy the Executive has is claims of “executive privilege,” which, for good reasons, they are loathe to invoke. Any claim that the Executive branch is inherently authorized to withhold information from Congress due to “deliberative process” or some other such rationale is totally without basis in history or law.

Other signing statements, the vast majority of them, in fact, are perfectly begin and permissible, even to be expected. Signing statements have a long history that dates back to Andrew Jackson. President’s Reagan, Bush I, and Clinton used them extensively, especially in the face of a hostile, opposition Congress. This history, of course, makes the current Bush Administration’s use more interesting because for the most part he has faced a politically friendly, compliant, and timid Congress that has challenged very, very few of his prerogatives.

This of course leads to the final point. If signing statements are for the most part begin and permissible, what, if anything are we to do with them, especially when a statute or provision is before a reviewing Court? In other words, to the statements carry with them any use in interpreting statutes? In my opinion, no, they do not, or should not be used at all by Courts. I can reach this decision in two ways. One is to adopt the Justice Scalia and Thomas method of statutory interpretation. If, according to them, the only interpretive tool is the text of the statute itself, than statements of the President, like traditional legislative history is meaningless and not to be considered. Alternatively, persons like me, who don’t reject the use of “legislative history” outright, can argue that presidential signing statements are of little interpretive value because the President is not a “legislator” and, therefore, his views are not entitled to be considered. True, the President plays a role in the legislative process, but so do 435 Congressmen and 100 Senators, so are we to consider their individual views as well? No. of course not, and even I, as a legislative history advocate, don’t argue we should. There is a hierarchy to the use of legislative history and the views of individual members rank at the very, very, bottom of the list. Hence, the President, who is not a legislator, in the first place, would rank at the very end of the hierarchy of person’s to consider when interpreting the meaning of a congressional statute. This is not to say that the President’s statement isn’t worth the paper it is printed on, because as previously discussed the statement does have value in that it instructs the executive branch and the public on the President’s views, but it should not have any real meaning or import when determining what a statute means.

In the end, the hubbub over signing statements is an interesting one, but not vital or crucial to our constitutional system. President’s like everyone else are entitled to their opinions and ought to have a forum to express them. Signing statements shouldn’t be used, however, to contravene the legislative process, or be used to avoid exercising veto power over actions of Congress. There are more serious institutional problems with using them in those ways, but as far as the President interpreting the Constitution his way and instructing the rest of the executive branch to follow suit, there are no problems with that, except for the fact that I, and others, may disagree with the President’ views.


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