# Presidential "signing statements" and the "legislative history" **URL:** \ **Category:** Great Debates\ **Created:** [January 11, 2006, 7:54pm UTC](https://boards.straightdope.com/t/presidential-signing-statements-and-the-legislative-history/339543 "2006-01-11T19:54:22Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [January 11, 2006, 7:54pm UTC](https://boards.straightdope.com/t/presidential-signing-statements-and-the-legislative-history/339543/1 "2006-01-11T19:54:22Z")
This came up in the thread on Judge Alito’s confirmation hearing – [http://boards.straightdope.com/sdmb/showthread.php?t=353296](http://boards.straightdope.com/sdmb/showthread.php?t=353296) – 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 – [http://www.washingtonpost.com/wp-dyn/content/article/2006/01/01/AR2006010100788.html](http://www.washingtonpost.com/wp-dyn/content/article/2006/01/01/AR2006010100788.html) – 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. > [@](#): > > “Since the president’s approval is just as important as that of the House or Senate, it seems to follow that the president’s understanding of the bill should be just as important as that of Congress,” Alito wrote. He later added that “by forcing some rethinking by courts, scholars, and litigants, it may help to curb some of the prevalent abuses of legislative history.” In 1993, Clinton had his counsel, Bernard Nussbaum, prepare a memo on the question of “signing statements” (thanx to **Crotalus** for the link): [http://www.usdoj.gov/olc/signing.htm](http://www.usdoj.gov/olc/signing.htm) Nussbaum observed that to date, presidential signing statements had been used for four purposes: > [@](#): > > ``` > This memorandum provides you with an analysis of the legal significance of Presidential signing statements. It is addressed to the questions that have been raised about the usefulness or validity of a such statements. We believe that such statements may on appropriate occasions perform useful and legally significant functions. These functions include (1) explaining to the public, and particularly to constituencies interested in the bill, what the President believes to be the likely effects of its adoption, (2) directing subordinate officers within the Executive Branch how to interpret or administer the enactment, and (3) informing Congress and the public that the Executive believes that a particular provision would be unconstitutional in certain of its applications, or that it is unconstitutional on its face, and that the provision will not be given effect by the Executive Branch to the extent that such enforcement would create an unconstitutional condition.(1) > > These functions must be carefully distinguished from a much more controversial -- and apparently recent -- use of Presidential signing statements, i.e., to create legislative history to which the courts are expected to give some weight when construing the enactment. In what follows, we outline the rationales for the first three functions, and then consider arguments for and against the fourth function.(2) The Appendix to the memorandum surveys the use of signing statements by earlier Presidents and provides examples of such statements that were intended to have legal significance or effects. > > ``` 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: > [@](#): > > The Reagan administration popularized the use of such statements and subsequent administrations continued the practice. (The courts have yet to give them much weight, though.) > > President Bush has been especially fond of them, issuing at least 108 in his first term, according to presidential scholar Phillip J. Cooper of Portland State University in Oregon. Many of Bush’s statements rejected provisions in bills that the White House regarded as interfering with its powers in national security, intelligence policy and law enforcement, Cooper wrote recently in the academic journal Presidential Studies Quarterly. > > The Bush administration “has very effectively expanded the scope and character of the signing statement not only to address specific provisions of legislation that the White House wishes to nullify, but also in an effort to significantly reposition and strengthen the powers of the presidency relative to the Congress,” Cooper wrote in the September issue. “This tour d’ force has been carried out in such a systematic and careful fashion that few in Congress, the media, or the scholarly community are aware that anything has happened at all.” And, quite recently – [http://pqasb.pqarchiver.com/sptimes/961055971.html?MAC=86c13c6da80cf259fcfd17b4c72a2905&did=961055971&FMT=FT&FMTS=FT&date=Jan+9%2C+2006&author=&pub=St.+Petersburg+Times&printformat=&desc=The+Alito+hearings+Series%3A+EDITORIALS:](http://pqasb.pqarchiver.com/sptimes/961055971.html?MAC=86c13c6da80cf259fcfd17b4c72a2905&did=961055971&FMT=FT&FMTS=FT&date=Jan+9%2C+2006&author=&pub=St.+Petersburg+Times&printformat=&desc=The+Alito+hearings+Series%3A+EDITORIALS:) > [@](#): > > Bush has issued such statements at least 108 times, including most recently when he signed the antitorture legislation sponsored by Sen. John McCain. Bush wrote himself a whopping loophole suggesting that he will abide with the amendment to the extent it was consistent with his duties as commander in chief. 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_ [http://www.thisnation.com/library/lovett.html](http://www.thisnation.com/library/lovett.html) – 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 . . .” ---
**Author:** ![Crotalus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crotalus/32/41_2.png) [@Crotalus](https://boards.straightdope.com/u/Crotalus)\ **Post date:** [January 11, 2006, 8:19pm UTC](https://boards.straightdope.com/t/presidential-signing-statements-and-the-legislative-history/339543/2 "2006-01-11T20:19:31Z")
**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. ---
**Author:** ![E-Sabbath](https://avatars.discourse-cdn.com/v4/letter/e/e19adc/32.png) [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)\ **Post date:** [January 11, 2006, 9:18pm UTC](https://boards.straightdope.com/t/presidential-signing-statements-and-the-legislative-history/339543/3 "2006-01-11T21:18:58Z")
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. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 11, 2006, 10:23pm UTC](https://boards.straightdope.com/t/presidential-signing-statements-and-the-legislative-history/339543/4 "2006-01-11T22:23:20Z")
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. > [@BG](#): > > 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 . . .” 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? 🙂 ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [January 11, 2006, 10:31pm UTC](https://boards.straightdope.com/t/presidential-signing-statements-and-the-legislative-history/339543/5 "2006-01-11T22:31:42Z")
> [@John Mace](#): > > 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? 🙂 Since I didn’t actually parse any text, I don’t see how you can characterize my argument as “originalist.” 😉 [jinks, dodges, slithers out of tackle’s grip] ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [January 11, 2006, 10:35pm UTC](https://boards.straightdope.com/t/presidential-signing-statements-and-the-legislative-history/339543/6 "2006-01-11T22:35:02Z")
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. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [January 11, 2006, 10:35pm UTC](https://boards.straightdope.com/t/presidential-signing-statements-and-the-legislative-history/339543/7 "2006-01-11T22:35:31Z")
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. ---
**Author:** ![E-Sabbath](https://avatars.discourse-cdn.com/v4/letter/e/e19adc/32.png) [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)\ **Post date:** [January 12, 2006, 12:57am UTC](https://boards.straightdope.com/t/presidential-signing-statements-and-the-legislative-history/339543/8 "2006-01-12T00:57:42Z")
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. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [January 12, 2006, 1:05am UTC](https://boards.straightdope.com/t/presidential-signing-statements-and-the-legislative-history/339543/9 "2006-01-12T01:05:53Z")
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? ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [January 12, 2006, 3:14am UTC](https://boards.straightdope.com/t/presidential-signing-statements-and-the-legislative-history/339543/10 "2006-01-12T03:14:16Z")
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.) ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [January 12, 2006, 3:39am UTC](https://boards.straightdope.com/t/presidential-signing-statements-and-the-legislative-history/339543/11 "2006-01-12T03:39:25Z")
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: > [@Tanner Lectures](#): > > As I have said, I object to the use of legislative history on principle, since I reject intent of the legislature as the proper criterion of the law. What is most exasperating about the use of legislative history, however, is that it does not even make sense for those who accept legislative intent as the criterion. It is much more likely to produce a false or contrived legislative intent than a genuine one. [http://www.tannerlectures.utah.edu/lectures/scalia97.pdf](http://www.tannerlectures.utah.edu/lectures/scalia97.pdf) (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](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=508&invol=223#241) ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [January 12, 2006, 3:57am UTC](https://boards.straightdope.com/t/presidential-signing-statements-and-the-legislative-history/339543/12 "2006-01-12T03:57:32Z")
> [@BrainGlutton](#): > > . . . . > > In 1993, Clinton had his counsel, Bernard Nussbaum, prepare a memo on the question of “signing statements” (thanx to **Crotalus** for the link): [http://www.usdoj.gov/olc/signing.htm](http://www.usdoj.gov/olc/signing.htm) 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.” > > 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_ [http://www.thisnation.com/library/lovett.html](http://www.thisnation.com/library/lovett.html) – the Supreme Court gave at least some interpretive weight to a “signing statement” of President Franklin Roosevelt. > [@Nussbaum memo](#): > > Separate and distinct from all the preceding categories of signing statement, and apparently even more controversial than any of them, is the use of such statements to create legislative (or “executive”) history that is expected to be given weight by the courts in ascertain the meaning of statutory language. See Marc N. Garber and Kurt A. Wimmer, Presidential Signing Statements as Interpretations of Legislative Intent: An Executive Aggrandizement of Power, 24 Harv. J. on Legis. 363, 366 (1987).\*\* Although isolated examples can perhaps be found earlier, signing statements of this kind appear to have originated (and were certainly first widely used) in the Reagan Administration. > \*\* (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: > [@](#): > > ``` > A third function, more controversial than either of the two considered above, is the use of signing statements to announce the President's view of the constitutionality of the legislation he is signing. This category embraces at least three species: statements that declare that the legislation (or relevant provisions) would be unconstitutional in certain applications; statements that purport to construe the legislation in a manner that would "save" it from unconstitutionality; and statements that state flatly that the legislation is unconstitutional on its face. Each of these species of statement may include a declaration as to how -- or whether -- the legislation will be enforced. > > Thus, the President may use a signing statement to announce that, although the legislation is constitutional on its face, it would be unconstitutional in various applications, and that in such applications he will refuse to execute it. Such a Presidential statement could be analogized to a Supreme Court opinion that upheld legislation against a facial constitutional challenge, but warned at the same time that certain applications of the act would be unconstitutional. Cf. Bowen v. Kendrick, 487 U.S. 589, 622-24 (1987) (O'Connor, J., concurring). Relatedly, a signing statement may put forward a "saving" construction of the bill, explaining that the President will construe it in a certain manner in order to avoid constitutional difficulties. See Federal Election Comm'n v. NRA Political Victory Fund, 1993 U.S. App. LEXIS 27298 (D.C. Cir. 1993), at *11-*12 (Silberman, J., joined by Wald, J.) (citing two Presidential signing statements adopting "saving" construction of legislation limiting appointment power). This, too, is analogous to the Supreme Court's practice of construing statutes, if possible, to avoid holding them unconstitutional, or even to avoid deciding difficult constitutional questions. > > ``` 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: > [@](#): > > It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. > **[FindLaw's United States Supreme Court case and opinions.](https://caselaw.findlaw.com/us-supreme-court/5/137.html)** > > FindLaw's searchable database of United States Supreme Court decisions since ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [January 12, 2006, 4:42am UTC](https://boards.straightdope.com/t/presidential-signing-statements-and-the-legislative-history/339543/13 "2006-01-12T04:42:05Z")
Two articles on signing statements (same author): [A Comparative Look at the Constitutional Signing Statement: The Case of Bush and Clinton](http://mpsa.indiana.edu/conf2003papers/1031858822.pdf) (pdf) [Rethinking Presidential Power—The Unitary Executive and the George W. Bush Presidency.](http://www.users.muohio.edu/kelleycs/paper.pdf) (pdf) And some interesting language from a case that talks about the signing power: > [@](#): > > It is said that the approval by the President of a bill passed by Congress is not strictly an executive function, but is legislative in its nature; and this view, it is argued, conclusively shows that his approval can legally occur only on a day when both Houses are actually sitting in the performance of legislative functions. Undoubtedly the President when approving bills passed by Congress may be said to participate in the enactment of laws which the Constitution requires him to execute. But that consideration does not determine the question before us. As the Constitution, while authorizing the President to perform certain functions of a limited number that are legislative in their general nature, does not restrict the exercise of those functions to the particular days on which the two Houses of Congress are actually sitting in the transaction of public business, the court cannot impose such a restriction upon the Executive. It is made his duty by the Constitution to examine and act upon every bill passed by Congress. The time within which he must approve or disapprove a bill is prescribed. If he approve a bill, it is made his duty to sign it. The Constitution is silent as to the time of his signing, except that his approval of a bill duly presented to him-if the bill is to become a law merely by virtue of such approval-must be manifested by his signature within ten days, Sundays excepted, after the bill has been presented to him. It necessarily results that a bill when so signed becomes from that moment a law. But in order that his refusal or failure to act may not defeat the will of the people, as expressed by Congress, if a bill be not approved and be not returned to the House in which it originated within that time, it becomes a law in like manner as if it had been signed by him. We perceive nothing in these constitutional provisions making the approval of a bill by the President a nullity if such approval occurs while the two Houses of Congress are in recess for a named time. After a bill has been presented to the President, no further action is required by Congress in respect of that bill, unless it be disapproved by him and within the time prescribed by the Constitution be returned for reconsideration. It has properly been the practice of the President to inform Congress by message of his approval of bills, so that the fact may be recorded. But the essential thing to be done in order that a bill may become a law by the approval of the President is that it be signed within the prescribed time after being presented to him. That being done, and as soon as done, whether Congress is informed or not by message from the President of the fact of his approval of it, the bill becomes a law, and is delivered to the Secretary of State as required by law. [La Abra Silver Min. Co. v. United States (1899)](http://www.justia.us/us/175/423/case.html) ---
**Author:** ![Crotalus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crotalus/32/41_2.png) [@Crotalus](https://boards.straightdope.com/u/Crotalus)\ **Post date:** [January 12, 2006, 2:54pm UTC](https://boards.straightdope.com/t/presidential-signing-statements-and-the-legislative-history/339543/14 "2006-01-12T14:54:30Z")
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. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 12, 2006, 3:06pm UTC](https://boards.straightdope.com/t/presidential-signing-statements-and-the-legislative-history/339543/15 "2006-01-12T15:06:04Z")
> [@Polycarp](#): > > 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. 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. ---
**Author:** ![Crotalus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crotalus/32/41_2.png) [@Crotalus](https://boards.straightdope.com/u/Crotalus)\ **Post date:** [January 12, 2006, 3:13pm UTC](https://boards.straightdope.com/t/presidential-signing-statements-and-the-legislative-history/339543/16 "2006-01-12T15:13:12Z")
> [@John Mace](#): > > 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. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [January 12, 2006, 3:18pm UTC](https://boards.straightdope.com/t/presidential-signing-statements-and-the-legislative-history/339543/17 "2006-01-12T15:18:45Z")
> [@Crotalus](#): > > 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. 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. > [@](#): > > 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. 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. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [January 12, 2006, 3:27pm UTC](https://boards.straightdope.com/t/presidential-signing-statements-and-the-legislative-history/339543/18 "2006-01-12T15:27:24Z")
> [@John Mace](#): > > 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. 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. ---
**Author:** ![Crotalus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crotalus/32/41_2.png) [@Crotalus](https://boards.straightdope.com/u/Crotalus)\ **Post date:** [January 12, 2006, 3:31pm UTC](https://boards.straightdope.com/t/presidential-signing-statements-and-the-legislative-history/339543/19 "2006-01-12T15:31:45Z")
> [@Gfactor](#): > > 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. 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. ---
**Author:** ![Crotalus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crotalus/32/41_2.png) [@Crotalus](https://boards.straightdope.com/u/Crotalus)\ **Post date:** [January 12, 2006, 3:35pm UTC](https://boards.straightdope.com/t/presidential-signing-statements-and-the-legislative-history/339543/20 "2006-01-12T15:35:46Z")
> [@Polycarp](#): > > 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. That’s a better statement of my opinion than I’ve been able to put together myself. Thanks. [Next page](https://boards.straightdope.com/t/presidential-signing-statements-and-the-legislative-history/339543.md?page=2)