Presidential "signing statements" and the "legislative history"

[Gfactor]

@Crotalus

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.

Instructions to departments can be made informally, too. We’ve got email and telephones. While signing statements are certainly immediate, they are also more permanent. Executive orders and memos can be superseded; regs and be amended or repealed. Certainly the Presdent has the power to instruct the executve branch. I just think that signing statements are a silly way to do it. Indeed, I’d be very surprised to learn that the signing statement was the first that a department had heard of the President’s understanding of a new law.

[Crotalus]

@Gfactor

Instructions to departments can be made informally, too. We’ve got email and telephones. While signing statements are certainly immediate, they are also more permanent. Executive orders and memos can be superseded; regs and be amended or repealed. Certainly the Presdent has the power to instruct the executve branch. I just think that signing statements are a silly way to do it. Indeed, I’d be very surprised to learn that the signing statement was the first that a department had heard of the President’s understanding of a new law.

I agree. It is clearly an attempt, for various reasons, to make the statement a part of the law. My view of it is kinda mild because it has had so little impact on the judiciary.

[Gfactor]

@Polycarp

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.

1. What if the Arizona judge was instead a judge in the UK?

2. What if the person in Arizona was neither clear-thinking nor a judge?

3. What if the Arizona judge was on an enormous bench (535 members). The Arizona judge tried to convince the other judges that his view was the correct one, but his view did not carry the day. So he wrote a dissent. How persuasive would that be? What if, in addition, the Arizona judge stood to benefit (at least professionally) if his opinion was adopted?

4. This is exactly why Scalia rejects legislative history in general. It is almost always self-serving crap. And it represents the (possibly disingenuous) opinions of individuals who by themselves can’t make law.

[John_Mace]

@Polycarp

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.

That’s a terrible analogy, Poly. I would hope that SC justices don’t decide this sort of thing in the same way you decide whether or not to take your kids swimming. In the SC’s situation, there is a correct answer, but in your case there is no correct answer.

As I said earlier, if they do take the presidents statements into account, then those statements do become binding. You can call it “influencing”, but the reult is the same.

[BrainGlutton]

@Gfactor

4. This is exactly why Scalia rejects legislative history in general. It is almost always self-serving crap. And it represents the (possibly disingenuous) opinions of individuals who by themselves can’t make law.

Is this, possibly, one respect in which Alito’s (or “Scalito’s”) thinking differs from Scalia’s?

[Gfactor]

@BrainGlutton

Is this, possibly, one respect in which Alito’s (or “Scalito’s”) thinking differs from Scalia’s?

Very possible.

But Alito said: “I’m not one of the judges who thinks that … you should never look to legislative history. I think it has its place.”

http://mediamatters.org/items/200601130012

Now, I don’t say I’m never going to look at legislative history. And the role of signing statements in the interpretation of statutes is, I think, a territory that’s been unexplored by the Supreme Court.

http://www.nytimes.com/2006/01/10/politics/politicsspecial1/text-day2.html?pagewanted=all

I have often looked to legislative history in the cases that I have written concerning statutory interpretation. I think if anybody looks at those opinions they will see that. When I interpret a statute, I do begin with the text of the statute. I think that certainly is the clearest indication of what Congress, as a whole, had in mind in passing the statute. And sometimes, the language of the statute is dispositive, and is really – the decision can be made based on the language of the statute itself. But when there’s an ambiguity in the statute, I think it’s entirely legitimate to look to legislative history. As I said, I have often done that. I think it needs to be done with caution: Just because one member of Congress said something on the floor, obviously that does not necessarily reflect the view of the majority who voted for the legislation. It has to be done carefully, and I think with a realistic evaluation of the legislative process. But I’m not one of the judges who thinks that you should never look to legislative history. I think it has its place.

http://www.nytimes.com/2006/01/11/politics/politicsspecial1/day3-text.html?pagewanted=all

So more like yes.

[Dewey_Cheatem_Undhow]

@John Mace

As I said earlier, if they do take the presidents statements into account, then those statements do become binding. You can call it “influencing”, but the reult is the same.

No, it isn’t. It’s no different than when the courts look to the rulings of other jurisdictions (something conservatives stupidly get their panties in a bunch over) for persuasive authority in deciding cases. There is a huge difference between something that is binding and something that is merely persuasive.

Originalist judges routinely examine the legislative history behnd a law in reaching their conclusions. That doesn’t make legislative history “binding” in any meaningful way – it just means it is an aid to understanding the purposes behind a law. A signing statement can be a similar aid, assuming one believes that the executive has (and should have) anything important to add in terms of grasping the intent behind the law.

[Gfactor]

Charles Fried, a law professor at Harvard, testified on Friday about his participation in what he called “the presidential signing statement initiative” when he was a Justice Department official in the Reagan administration. The initiative, Professor Fried said, was “principally devised to curb the abuses of legislative history and legislative reports.”

Courts sometimes rely on documents prepared by Congressional committees or on statements of individual members of Congress in interpreting Congressional intent where the statutory text is ambiguous.

Professor Fried said Congressional staff members, sometimes at the behest of interest groups, “plant little stink bombs in the legislative history, which then flower in later litigation.” The presidential signing statements were, he said, “a kind of Airwick against those stink bombs.”

Presidential Signing Statements, and Alito's Role in Them, Are Questioned...

''The executive branch shall construe [the law] in a manner consistent with the constitutional authority of the President . . . as Commander in Chief," Bush wrote, adding that this approach ''will assist in achieving the shared objective of the Congress and the President . . . of protecting the American people from further terrorist attacks."

Some legal specialists said yesterday that the president’s signing statement, which was posted on the White House website but had gone unnoticed over the New Year’s weekend, raises serious questions about whether he intends to follow the law.

http://www.boston.com/news/nation/washington/articles/2006/01/04/bush_could_bypass_new_torture_ban?mode=PF

Airwick, huh?

[BrainGlutton]

@Gfactor

Airwick, huh?

[Gfactor]

@BrainGlutton

I was referring to this part of the quoted material:

Professor Fried said Congressional staff members, sometimes at the behest of interest groups, “plant little stink bombs in the legislative history, which then flower in later litigation.” The presidential signing statements were, he said, “a kind of Airwick against those stink bombs.”

(Emphasis added.)

And pointing out that the signing statement that I quoted seems more like of of those stink bombs than a cure for them.