The Sky Is Falling Again

Andrew Sullivan seems more than a tad bit alarmed about the fact that President Bush has opted to continue the practice of utilizing "signing statements' when signing bills into law, characterizing it as one way "how the Bush administration has tried to add executive interpretation to Congressional law as a way to affect its implementation and potential review by the Courts." Maybe Andrew needs to read the article to which he linked...

In a Feb. 5, 1986, draft memo, Alito, then deputy assistant attorney general in the Office of Legal Counsel, outlined a strategy for changing that. It laid out a case for having the president routinely issue statements about the meaning of statutes when he signs them into law.

Such "interpretive signing statements" would be a significant departure from run-of-the-mill bill signing pronouncements, which are "often little more than a press release," Alito wrote. The idea was to flag constitutional concerns and get courts to pay as much attention to the president's take on a law as to "legislative intent."

"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."

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."

See the language in bold? Essentially, we have an instance here where President Bush is continuing a practice that means absolutely nothing in the interpretation of the statute.

Trust me on this -- as a lawyer, I hate relying on legislative history for any reason when I'm trying to prove a point. I've never tried to pitch the idea of relying on executive signing statements, probably because most courts would snort at the idea that the executive branch's view held any weight. Heck, most courts today barely pay heed to legislative intent.

I'd argue that the fact that President Bush seems fond of stating his intent on how the executive branch plans to interpret a statute is a good thing -- it's an open statement of how the Administration expects to apply the statute. Of course, since this is an Administration regularly ripped for secrecy, that probably doesn't fit the popular narrative, so I doubt anyone will say anything about it. I particularly love the last quote above, where the Presidential signing statement, because the White House doesn't aggressively promote it, is found to be another case of Bush hiding the ball.

I don't disagree that Bush is trying to interpret statutes in a way that he finds favorable to his point of view, and placing his own interpretation on the public record is one way of doing it. The fact that it seems particularly ineffective makes me wonder why Andrew seems to be in such a snit about it. He seems very perturbed about Bush's interpretation of the McCain Amendment in a way that may allow for torture. I'm a tad bit more worried about expansive interpretations of the term "degrading" in the McCain Amendment that may lead to our interragators being hamstrung and prisioners asking for foot massages (yes, that's an exaggeration).

I do agree with Andrew that it might be a good idea to ask Judge Alito about his views on the practice of signing statements and whether courts should accord any weight to them. Unfortunately, I'm guessing the minority party will spend most of the hearings frothing at the mouth about abortion and engaging in demoguagary instead. But hey, we can hope, right?