Presidential "signing statements" and the "legislative history"

This came up in the thread on Judge Alito’s confirmation hearing – – but, of course, that involves a board range of issues, and I think this one is important enough to warrant its own thread, where we can debate it on its own merits, without reference to the question of what Alito’s current position on it might be, or whether Alito should be confirmed or not.

An article in the Washington Post, 1/2/06 – – reveals that in 1986, when Alito was deputy assistant AG in the office of legal counsel under Reagan, he laid out a case for having the president routinely issue “interpretive signing statements” about bills when he signs them into law. The intent was that the courts, when later interpreting the statute, would look at the “signing statement” as an element of the law’s “legislative history,” to be given weight alongside the Congressional committee reports and debate records, which are routinely considered.

In 1993, Clinton had his counsel, Bernard Nussbaum, prepare a memo on the question of “signing statements” (thanx to Crotalus for the link): Nussbaum observed that to date, presidential signing statements had been used for four purposes:

Nussbaum reached no conclusion WRT to the legality of the “legislative history” application of signing statements; he simply cited the arguments pro and con and concluded the matter remained “controversial.”

The Bush Admin has used signing statements rather enthusiastically. From the WP article linked above:

And, quite recently –

As Crotalus pointed out, the practice does have some history further back than the Reagan Administration. In the 1946 Supreme Court case of U.S. v. Lovett – the Supreme Court gave at least some interpretive weight to a “signing statement” of President Franklin Roosevelt.

Should a presidential “signing statement” be considered by the courts as an element of a statute’s legislative history?

I incline to the negative. The Constitution gives the president the power to ratify a bill – or to veto it, and run the risk Congress might override his veto. He does not get to say, “Yes, but . . .”

BrainGlutton - Thanks for starting this thread. I hope that we aren’t the only ones interested. I was pretty much unaware of this until you brought it to my attention in the Alito thread, and thanks for that. I have to bail out for today, so I’ll rejoin tomorrow.

At this point, I incline to neutral, because it seems to have been around for quite a while without causing any trouble. I’ll look forward to further info and debate.

Well, he can write whatever he wants on the bill, but what judicial notice has been taken of signing statements in general?

As I understand it, line-item vetos were considered unconstitutional, I fail to see how this is much different. The President is not part of the legislative branch, he does not write laws.

I don’t think they shoud be considered part of the legislative history. The Constitution gives the president the authority to veto bills, not the authority the modify the bills.

I applaud your use of that originalist argument. Can we count on you sticking to that philosophy in the future, or only when it produces the desired result? :slight_smile:

Since I didn’t actually parse any text, I don’t see how you can characterize my argument as “originalist.” :wink: [jinks, dodges, slithers out of tackle’s grip]

I tend to the opposite view. Not that I believe the President has the right to reshape a law as he signs it into law.

But in construing the meaning of a given statute, the courts will refer to its statement of intent (often Section 2 of the bill as enacted, after the “official name” and before the substantive provisions adopted, which may be changing the wording and/or adding clauses to pre-existing laws. Many judges will also take judicial notice of what was said in debate regarding the purpose and function of the proposed law.

What the President thinks he’s doing in signing a bill into law is equally valid, as guidance for, and not binding authority on, the courts. If he cares to preface his signature with comments on where he feels the new law is intended to apply and where not, he’s welcome to do so. And the courts are free to give those comments as much or as little deference as they feel appropriate.

I don’t see a problem with it being used by the courts as part of the legislative history of the bill. It helps to explain, at least, what the president who signed the bill understands the bill to mean. It obviously shouldn’t be the only factor considered when trying to discover the bill’s meaning.

This concept disturbs me more and more, the more I think of it. It suggests there is one rule of law for all mankind… and another for the Executive Branch. This can not be right.

What happens when the President issues a statement at odds with what Congress intended with the law. Do they have to pass another law saying, “no you knucklehead this is what we meant”? Whose interpetation matters more, the President or Congress?

I reject that presidential signing statements should have any bearing on the interpretation of law, for three reasons I can think of off the top of my head.

First, the broadest reason, and the least grounded in the text of the Constitution: the courts are supposed to interpret laws, not the executive. The executive is supposed to carry the law into effect, not make amendments to laws by choosing to interpret various terms as it sees advantageous. I realize that there is some degree of interpretation of text that is unavoidable, but the idea that the President can contribute to the legislative history of a law leads me to…

Second, the very first words that follow the Preamble of the Constitution are: “All legislative powers granted herein shall be vested in a Congress…” Not most of the legislative powers, not the overwhelming majority… it says ALL legislative powers. How can the Executive Branch create legislative history if it has no legislative powers other than its constitional responsibilities under…

Third, the presentment clause allows the President to sign a bill if he approves it, and if he does not he shall explain his reasons as the bill is returned to the Congress. The idea that the President can lay the foundations for undermining a law through explaining his objections to… well, nobody in particular… while approving it has no room under the presentment clause. If a President seeks to use signing statements to draw caveats into the plain text of the law, then its nothing more than a passive line-item veto that Congress has no opportunity to reject by voting to override the President’s interpretation. (which would certainly be done in the case of the McCain torture amendment if there were any mechanism to do so.)

Coming from Bush, such an approach is beyond hypocritical. Bush’s judicial philosophy is modeled on Scalia’s. Scalia *rejects * legislative history as a basis of statutory interpretation. He has for a long time. In 1995, Scalia said: (pdf)

He makes the same point in his book. In fact, he claimed in 1997, he claims that he has not consulted legislative history in the previous nine terms.

Instead Scalia finds intent “from the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris.”

On this topic, Bush is probably one of the worst candidates for an authoritative interpreter. Let’s face it, nobody is going to argue that he has a good grasp of the language, are they? Besides, Scalia is looking for a “reasonable person’s” interpretation. The President’s biased, and self-serving readings just aren’t helpful in that search.

And see, Scalia’s dissent in Smith v. United States

(Emphasis added.)

  1. The FDR statement in question was not one like the relatively new kind described above. The case quotes the statement: “The Senate yielded, as I have been forced to yield, to avoid delaying our conduct of the war. But I cannot so yield without placing on record my view that this provision is not only unwise and discriminatory, but unconstitutional.” That’s this kind:
  1. Although the Court did mention the President’s words, there is no evidence in the case that it considered them helpful. Indeed, doing so would violate Marbury v. Madison’s pronouncement that:

Two articles on signing statements (same author):
A Comparative Look at the Constitutional Signing Statement: The Case of Bush and Clinton (pdf)

Rethinking Presidential Power—The Unitary Executive and the George W. Bush Presidency. (pdf)

And some interesting language from a case that talks about the signing power:

La Abra Silver Min. Co. v. United States (1899)

Wow, Gfactor, thanks for all of the reading material. I agree with you (and I’m pretty sure Scalia would agree with you) that Scalia is a proponent of textualism rather than original intent. He claims to be concerned only with the intent of the legislature as it can be determined in the text of the law, not from any debate surrounding the passage of the law. This makes it easy to believe that he would have no use for presidential signing statements as a factor in a court decision. The main reason that I am not particularly concerned about Bush’s “legislative history” use of these statements is that this use is ineffective. The only SCOTUS decision I’ve found that even refers to one is the 1946 case, and that decision didn’t rely on the statement. Bush, and other presidents, may hope or intend that these statements have some sort of force of law, but it doesn’t seem likely to me that the court will ever treat them as such. These statements have frequently been used by departments within the executive branch to determine what means the president wants them to use to implement laws, and I think that’s a proper use of them.

How do you apply this in practice? If you decide to use the signing statement to influence your opinion, then it is binding. Under which circumstances should it be binding and under which circumstances should it not be binding.

The way things work, it is entirely up to the individual justices whether these statements have any weight.

We can only hope. As Scalia points out in the quote material above, legislative history in general is “much more likely to produce a false or contrived legislative intent than a genuine one.” This risk is a near certainty when it comes to the kind of statement you are describing. If the “legislative history” supported a particular legislative intent, then there would be no need to consider “executive history.” If it doesn’t then the conservative focus of consent of the governed, legislative power, and majoritarian politics goes out the window. One person gets to tack on his own spin, and make that somehow more authoritatitve than the opinions of hundreds of elected officials. With Bush, the offense is even worse because we know he does none of his own thinking. So we have political appointees controlling how the law is interpreted. And look at the people he appoints.

What’s stopping him from doing this in a less controversial manner. As the La Abra case noted, the purpose of the statement is to let Congress know that he signed. We’ve got all kinds of other ways of telling them that. And if the President wants to instruct the executive branch on how to enforce a law, again, why does he need to do it in that forum? A memo would suffice. Or an executive order. Or . . . . regulations adopted after notice and public comment . . . nah, that’s just crazy. I’m gonna go take my meds now.

Influencing != binding, John. Last summer when I was staying with friends with kids, I could count on the kids wanting me to take them swimming on my day off. Usually we went, sometimes we didn’t. Their wishes were influencing but not binding.

Suppose that a clear-thinking Arizona state judge writes an opinion in a case decided under Arizona law, with both law and facts closely resembling a pending case in Ohio. The Ohio judge is required to decide the case according to Ohio law, but he’s a fool if he doesnt’ at least examine the Arizona case, and let it guide his thinking. Not necessarily in a positive manner; there may be distinct differences in the facts that justify coming to the opposite conclusion.

Likewise in applying a law to an instant case: Here we have Law X, which the plaintiff claims is relevant to the dispute he has with the defendant, who denies that claim. So the judge, in attempting to determine the law’s relevance, examines: (a) the language in the text of the law, (b) the statement of legislative intent in the adopting legislation, © reports of the deliberation and debate in the legislature and in its committee, (d) possibly relevant case law relating to that statute, (e) law review journal articles speculating on it, if any, (f) opinions that may have been issued by persons entitled to issue them (New York’s State Comptroller and Attorney General regularly issue advisory opinions on matters of law, as a part of their service to the state, a practice I’m sure is common elsewhere as well). To that mix, is it unreasonable to add in (g) the statement which the executive issued in signing the measure into law?

None of it except the ruling of a higher court that is directly on point will be binding to that judge. But all the above are things he can, and often should, look at in rendering his decision as to the relevance of the law in question.

Not crazy at all. Presidents (including Bush) do use the means you have described to give instructions to the departments. The statement is immediate, the memos, orders and regs follow later.

We have always had political appointees and the permanent bureaucracy determining how the law is interpreted. I believe that this was a frequent complaint of Jimmy Carter.

While we disagree on how much thinking GWB does on his own, I too am unhappy that he seems to be trying to make use of a device which is not in keeping with his frequently stated agreement with Scalia’s textualist view of the law. And I hope, along with you, that these statements will continue to be treated by the judiciary as they have been in the past, as if they have little or no value in determining cases.

That’s a better statement of my opinion than I’ve been able to put together myself. Thanks.