Who's Afraid of Presidential Signing Statements?

JB

There are three possible groups of people whose attention to signing statements might matter: the courts, Congress, and executive branch officials.

First, consider the courts. If the courts take signing statements as appropriate evidence of legislative intention, this increases the power of the President vis a vis Congress.

Note that courts already defer to legislative interpretations by executive agencies under the Chevron doctrine. However, courts do not generally apply the Chevron doctrine to the Justice Department's interpretations of federal criminal law (even though the Justice Department is technically the agency charged with enforcing said law). Perhaps more importantly, courts do not defer to the executive's determination that a particular law is unconstitutional. Nor is there any reason to expect that courts will automatically defer to such claims in the future. Hence if the President is trying to persuade courts to agree with his views on the unconstitutionality of statutes that he signs, he is unlikely to make any headway, or at least, any more headway than courts *already* offer the executive when the executive makes claims about its constitutional authority.

There is an additional irony here: some judicial conservatives-- Justice Scalia being the most prominent-- argue that it is inappropriate for courts to look to legislative history at all in interpreting statutes. For these conservatives, it makes little sense to look to presidential signing statements if you are not going to look to legislative committee reports. After all, the point of looking to the text rather than legislative history is to discipline legislators and force them to be more clear. If the President is treated as a legislator under the theory of presidential signing statements, then he also needs to be disciplined-- in this case to drive a harder bargain or, if all else fails, to wield his veto pen-- if he does not like what Congress has sent him.

The second group of federal officials who might pay attention to Presidential signing statements are the members of Congress. But it is very unlikely that Congress will grant these statements much effect, primarily because it would significantly undermine Congress's prerogatives. Even if one can imagine Congressional acquiescence in a particular case, it is hard to see why Congress would willingly acquiesce to the general practice, at least to the degree that the current Administration has employed it.

This leaves us with the third group of persons who might pay attention to executive signing statements: other executive officials. At first glance, *this* deference seems perfectly reasonable. Obviously, if executive branch officials regard presidential signing statements as binding on their future actions, then the President can interpret statutes in ways that promote his policies. But it is hard to see why this is a serious problem in and of itself. The President already has the ability to require his subordinates to interpret statutes in ways that promote his favored policies, and his ability to do so shouldn't much matter in a wide range of cases. First, we ordinarily expect that the President should be able to order his subordinates to carry out his interpretations of federal law. Second, as noted before, when the President does so, courts already defer to (some) administrative agency interpretations of (some) statutes under Chevron.

The real problem lies elsewhere. It arises when the President orders his subordinates to refuse to enforce statutes on the grounds that he believes that the statutes are unconstitutional *and* there is no way for Congress or the courts to engage in effective oversight or effective responses to push back at the President. That is to say, the problem is not the President's ability to issue signing statements but his ability to direct his subordinates to refuse to enforce federal law routinely and without any consequences.

The relationships between the three branches are ones of simultaneous cooperation and conflict. Branches compete with each other for authority, but they also defer to each other out of comity and out of a desire to keep the government running smoothly. When pressed, the branches will assert their independence from each other. But in the ordinary case, they endeavor not to press their disagreements too hard. For example, the executive usually respects the decisions of courts regarding the constitutionality of statutes, although the executive can always argue that previous decisions are distinguishable. The idea is that if the executive makes too much trouble for another branch, the other branch will find ways of making trouble for the executive, and vice versa. Comity and diplomacy mean not pushing every disagreement into a full scale constitutional crisis, they mean finding ways to get along in order to go along.

This comity or diplomacy is premised in part on the threat that the other branches might bring to bear-- on the ability to hold a particular branch accountable in some way if it consistently stiffs the other branches. But what happens if the President decides *routinely* not to play along, and there is no effective way to push back? One reason why there might be no way to push back is that the President has increasingly isolated himself from responses, for example, through making increasing amounts of his activities secret, or through directing his subordinates to disregard or flout any and all attempts at oversight. If the President begins to do these things fairly routinely, the system of comity and diplomacy on which the separation of powers is based breaks down and we have a serious constitutional problem on our hands.

That is the real reason why people are (or should be) concerned about the increasing number of signing statements under the Bush Administration. The courts and Congress don't have to pay attention to these statements if they don't want to, and, conversely, we expect that presidential subordinates will normally follow his policy directives. So signing statements are not important in themselves but rather as a symptom of a larger concern: The real issue here is whether the proliferation of signing statements signals a significant shift in how the President will treat the other branches in the future. The fear is that the President is starting to push the limits of his power systematically in order to create a new status quo where he is effectively free from oversight in a wide range of situations both outside the United States and within it. The President is gambling that if he refuses to cooperate with the other branches consistently, Congress and the courts will back off because they lack the political and institutional will to punish him. Hence they will prove powerless to stop the President, particularly where foreign affairs is concerned. So, for example, the President keeps his interrogation, detention and surveillance activities secret, and if they are revealed, he dares Congress and the courts to try to stop him, figuring that they won't have the stomach for a full scale fight.

Put another way, the President is saying to Congress and the courts what he said to Iraqi insurgents back in July of 2003: bring it on.

And as we all know, that's turned out real well so far.