Signing Statements and the Judiciary

by Andrew

Mark me down as in complete agreement with Kevin Drum about signing statements. He notes that the minority in Hamdan cited President Bush's signing statement to buttress the dissent.

For those unfamiliar with them, signing statements are legal documents the President attaches to legislation he signs that outline his interpretation of what he just signed. Their intent is to give some measure of 'executive intent' to the document to balance attempts to divine Congressional intent when laws are unclear or questioned. In Hamdan specifically, President Bush's signing statement noted that he believed that the Detainee Treatment Act stripped the courts of the ability to hear existing detainee lawsuits: in other words, President Bush signed the Detainee Treatment Act in part because he believed that the law would prevent the courts from ruling on Hamdan's case.

Signing statements can have a certain value to the courts, just as reviewing Congressional testimony can aid a court in trying to ferret out what it is Congress meant by a particular clause in federal law. But as Kevin notes, Congressional debate helps the courts determine what compromises and discussion took place prior to the bill's passage. A signing statement, conversely, permits the President to place his own stamp on a bill without any means for Congress to respond. The President can draw up a signing statement that adds or subtracts meaning from a bill that Congressional debate clearly shows not to have been the intent of Congress. As such, while I don't know that signing statements should be wholly ignored by the courts, they certainly should carry far less weight than a review of what Congress actually had to say as they were debating the bill.

It may have been the intent of Congress to, in fact, strip the courts of the ability to hear ongoing cases, but the text does not so state. Further, given the Constitution's ban on ex post facto laws (and I am not a lawyer, so I may be incorrect here), I'm not sure Congress has the power to tell the courts they cannot continue hearing a case that is already in the judicial system. But even if Congress does have such a power, the President's signing statement should only carry weight in the court's decision if it is only one piece of evidence pointing in that direction. If Congressional transcripts were also to show a sustained debate regarding stripping the court of pending cases (which I believe would mean specifically Hamdan), then the President's signing statement would offer additional evidence for the court to consider. If, however, Congress did not address that question, or if the question was addressed and dismissed, then the President's signing statement should not be used to influence the court's decision, because it does not take into account the intent of Congress and is therefore not demonstrably representative of the intent of the law.

Congress also has a role to play in this process, as it is their responsibility to defend their prerogatives against executive encroachment. Congress has shown little interest in doing this in my lifetime, unfortunately, which has predictably led to the expansion of the executive and judiciary at the expense of Congress. As has been noted before, the fact Congress and the President come from the same party only makes this problem worse, and so a Democratic victory in November can be considered not only a good thing to rein in this President in particular, but as a chance to rein in executive authority more broadly for whomever occupies the Oval Office in 2009 and beyond.

Comments

[bob mcmanus]

In exchange for the line-item veto add a clause that a Presidential signing statement (and/or lie-item veto) necessitates a resubmission and revote on a bill. Not that I favor the line-item veto (I'm mostly neutral). And I of course not sure on the Constitutionality of any of this; or the Founders' reasoning behind giving the President only an up-or-down vote and no ability to rewrite and resubmit.

[Jesurgislac]

Good post; clear and detailed: thank you.

A query, though; didn't Congress have a Republican majority between 1994 and 2000, and wasn't Congress in those years in opposition to the Democratic executive?

[Andrew]

Jes,

Yes, but I think if there's one thing you and I can agree on, it's that Congress has been shamefully negligent in its duties from 2001-present.

And Congress has been happy to defer to the courts at least since 1973, and probably earlier, since giving the courts more power allows Congress to avoid the heat of making difficult decisions. Indeed, even the President has jumped on the bandwagon. Witness President Bush's decision to sign McCain-Feingold on the assumption the court would overturn those parts he didn't think were unconstitutional.

[Catsy]

Count me as being far less charitable than you--I don't think Bush's use of signing statements is defensible as him attaching his "interpretation" of what the law means. In many cases, his signing statements have clearly indicated that he intends to disregard the law entirely, or at least the parts of it he doesn't like.

[Andrew]

Catsy,

Signing statements date back to President Reagan and have been used by all Presidents since then. While I do not have the evidence handy, I recall reading that such interpretation is a not-uncommon use for the statements. Another reason to minimize or eliminate their use as evidence in court proceedings. Indeed, a good reason for Congress to throw down the gauntlet on them entirely, since they could make a good argument they violate the separation of powers.

[Sebastian Holsclaw]

I don't think Congress was any better with respect to the courts in 1990, 1980 or 1973. That may be because Democrats thought the courts were "on their side" and could enact things judicially that would never pass democratically, but Congress has been generally horrible with respect to separation of powers and the courts.

[Sebastian Holsclaw]

Whoops I don't know where the rest of my comment went.

That said, signing statements should have no legal value. They don't reflect the debate of Congress and as such can't help figure out what Congress meant by any unclear terms that the judiciary might find.

[bob mcmanus]

"That said, signing statements should have no legal value."

I guess that kinda answers my comment, that the President is not making any substantive contribution to the law by signing or vetoing.

Now the Executive branch is constantly interpreting the laws in their execution and implementation, sometimes mistakenly or arrogantly, and are then corrected by Congress or SCOTUS, but I suppose that is not considered any substantive change to the law.

Why do we need a Net Neutrality Act again?

[Sven]

Mr. Lippmann, call your office.

[dmbeaster]

Signing statements are legal fluff, and only serve as a political tool (and nothing wrong with that). Only Congress gets to make laws -- our system only gives the President an up or down choice. In fact, there is a seperate legal doctrine that invalidates over-delegation of lawmaking power by Congress to the executive (some delegation is permissible to permit rule-making to flesh out statutes; another arcane area of law -- where is the dividing line resulting in improper over-delegation; this in one of the Constitutional problems with the line item veto).

The fact that the minority would cite to a signing statement in Hamdan indicates the intellectual cheapness of the current crop of court conservatives (since the legislative history made it so clear that the signing statement was contrary to the legislative intent) -- they are result oriented and damn their principles if they get in the way of the "right" result.

Legally, the whole question of using legislative intent as an aide in interpreting vague statutes is itself a dubious exercise. I have done some appellate practice requiring inquiry into legislative intent, and more often than not, the legislative record is confusing and uncertain on intent. You are better off putting meaning into the statutory language than playing the guessing game to divine legislative intent.

A typical bill may have three or more different versions of legislative intent -- a natural result of the compromise process for getting legislation passed. How do you devine the intent of the majority who passed the law? Plus there are so many ways to game the process of alleged legislative intent. And finally, the intent may have been there but the critical language is not in the statute, and that may have been what was necessary to get it passed even though the opposing view is not represented in the record of legislative intent. Do you then override clearer language because of clear intent not found in the bill?

The notion that the executive's intent in signing a law has some role to play in interpretation is garbage -- another phony legal argument along with the numerous others that have justified torture, detention without trial, and spying in violation of statutes and the Constitution.

[old]

somewhat OT--

hil: good work on picking up Andrew O.

edward_: we still want you back.

[Catsy]

Signing statements date back to President Reagan and have been used by all Presidents since then.

I think you misunderstood the thrust of my objection. I don't object to signing statements per se. But the use of them to attempt to circumvent the clearly written intent of a law--to in effect issue a declaration that the President will disregard said law--is primarily a creature of this administration, both in nature and in number.

[KCinDC]

dmbeaster, surely the idea is that examination of the congressional debate is supposed to shed light on any parts of the text that are unclear, not to override parts that are clear or to invent new parts.

And of course forged additions to the floor debate should have zero weight in the court's interpretation of a law.

[Dantheman]

I'll agree with dmbeaster and Sebastian. Andrew's comments are far too deferential to the concept of signing statements, which should be given no weight at all. It has no bearing on the legislative history, as the President is not part of the Legistative branch of government.

If the statute gives grounds for interpretation, the President is free to suggest his views, whether as a party or through amicus curiae (friend of the court) briefs, and there is even an entire branch of the Department of Justice (the Solicitor General's office) whose entire purpose in life is to argue for the Executive branch's interpretation.

[Pooh]

To my mind, signing statements have some value as a second level inquiry - that is, where there exists textual ambiguity, a signing statement can add some weight as the position taken by the executive in, well, executing the law. The problem with Bush's use of the statements is that he is attempting to use the statements to construct ambiguities rather than resolve them.

[John Lopresti]

I think Bush fairly dissociated from the smart group of folks who are writing the signing statements for him to sign.

Additionally, I note the crisis mentality after the World Trade Center debacle early in Bush term-1, seemed to propel the signing statement into the center of the mode of governance that would continue through both Bush terms, kind of a slippery slope.

Signing statements extend far prior to Reagan, but Meese developed them as an instrumentality for managing Reagan. I see Bush currently much more engaged in presiding than Reagan was. Nevertheless, the signing statements are a way of life for the current president. Interestingly although the current president Bush has completed a total number of signing statements greater than the aggregate of all prior presidents, the subset of his signing statements which "purport" to alter constitutional law is very close to the frequency with which his own father, the first president Bush, used signing statements for constitutionality opinion in his brief single term as president, at least, that is the way the current WHC's mid level representative characterized the comparison of the two Bush presidents in her formal remarks at a Senate Judiciary Committee hearing a few days ago; you can find her presentation at the committee's website. Senator Leahy had some comments about WHC's reluctance to send a principal author to the hearing, and chairman Specter, as far as I know, has not pursued further attempts to hear from someone closer to the source of the signing statements' authorship.

I can recommend two scholars in the area, Phillip Cooper, and Christopher Kelley.

You have to look around Cooper's site to find his paper on signing statements.

Kelley's site is vibrant, unlike the more expansive and methodological material Cooper has online there. Perhaps it is Kelley's youth which inspires his timliness and energy. Both Cooper and Kelley are worth reading. If Kelley's site negotiation seems to balk, click the window resize button.

There is some interesting commentary at several other websites, as well. I might revisit here with some more links, if I have a moment for compilation. The few I include here should amplify your explorations easily.

Here is a site which mirror's the White House site. All the signing statements are available at either. I like the coherentbabble site for its precis-like presentation and hyperlinks to various views of the entire set of the current president Bush's signing statements for both terms. I found especially raw the "signing statement" language used on the McCain amendment, and the executive blue pencil language applied to the budget for 2005 in that signing statement; for example, in the most recent signing statement which I have read, I noted the president declined to send full reports to Congress, declaring unilaterally all he would do is report activities completed, in a listwise fashion. Reportedly, vice president Cheney chief of staff Addington has authored these.

I hope this helps.

[Jamesaust]

No, this would not be an ex post facto law. Such a law would change the legal status of an act after its existence - that is, a retroactive law. Such laws (would) exist primarily within criminal law. The reason for their prohibition should be obvious from a substantive due process standpoint - no one could know if their actions would later be viewed (retroactively) as criminal, e.g., it shall be a felony to publish any statement entitled "Signing Statements and the Judiciary." This law shall apply retroactively. Whoops! You've already published it.

Here, Congress is making a change to procedural rules of the federal courts. Congress may make any changes to such rules as they wish. Congress under our Constitutional creates the federal courts (exc. the Supreme Court) and Congress can make them go away if necessary. While its rare for Congress to get into this type of narrow jurisdictional boundary drawing, its not unheard of (witness the T. Shiavo fiasco).

[CharleyCarp]

Congress can suspend the privilege of the writ of habeas corpus in certain circumstances not here present. Were they present, and were Congress to find suspension necessary, I'm quite sure that it could do so with respect to all pending cases. It just has to say so.

[John Lopresti]

The view in mid to late June 2006 regarding signing statements in one pundit's opinion inside the Beltway.
I was looking for a history of the declaration of war other congresses have authored in other conflicts, recalling that even the Korea imbroglio was merely a US populated international agency's police action; in the course of sorting thru some historians' comments I happened upon this, a linear tracing of habeas thru Gitmo extending back to the Roman Empire days long ago.

These two foregoing items are interrelated, but I leave the connection for a later post, as I am hurrying thru a different project this afternoon.

Appreciation to Andrew for the openness in a discussion which began way off the spectrum with KDrum; and thread participants.
JohnL