Balkinization  

Tuesday, January 17, 2006

Who's Afraid of Presidential Signing Statements?

JB

What is the controversy about presidential signing statements all about? At first glance, all the fuss seems a mystery. The President can say whatever he likes about the legislation he signs. After all, it's a free country (for the time being). The real question is whether anyone will pay attention to what he says; if not, then the President is just blowing smoke. In this post I want to consider why these statements are causing concern, and why they should cause concern. The answer, I think, is more complicated than it first appears.

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.


Comments:

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.

I have no idea how (if at all) this has played out in practice, but I don't see the irony here. Seems to me Scalia et al. ignore legislative history not simply to discipline legislators into greater clarity, but also (if not primarily) because they discount the value of, e.g., a report written by a committee as evidence of the intent of the Congress as a whole, or indeed believe that the concept of the intent of Congress as a whole is an incoherent one, given the likelihood of differing intents among the individual legislators.

I happen to think this is ridiculous (and Larry Solan details the weakness of this position in Private Language, Public Laws, 93 Geo. L.J. 427), but those particular concerns evaporate in the context of a presidential signing statement, which (in theory) reflects the thoughts and motivations of a single individual, and thus can serve as (relatively) unproblematic evidence of the executive's intent.

So, if you believe that that presidential intent matters (a separate question), sharing Scalia et al.'s concerns about using legislative history need not lead you to ignore presidential signing statements.
 

Nice post Jack. I've actually come to think of it as the modern equivalent of a witch doctor chanting an incantation. It's all cut from the same cloth as their encoded blather on on such topics as Constituional jurisprudence, abortions, "evil-doers," "democracy," etc.

The other way to look at it is pure mass-marketing, which is about the same thing.

But I can also suggest an effective cure: use some of these signing statements as evidence in criminal prosecutions.
 

Prof. Balkin,

You make a number of good points here.

I'm a Scalian as to legislative history, and I think the reasons for preferring the text even over identifiable intent are sufficient for me to reject signing statements, Rich's well-taken distinction above notwithstanding.

I have a suspicion that the proliferation of signing statements, especially in cases like the McCain anti-torture legislation, is being put forward to give federal officials immunity arguments. But I am not expert in immunity law. Do you or any of your readers have any thoughts on this (potentially worrisome) aspect of this phenomenon?

T.
 

President Bush has made more than 500 signing statements that in some way or other express executive authority to depart from the law being signed.

If, as T. More suggests, the purpose is to create immunity for federal officials, one is led to wonder how vast a scale of criminal behavior is being protected.
 

Ah some really good perceptive answers here to a question I've been asking. (But DRAT not having access to a Lexus/Nexus data base to research stuff.)

But also what concerns me is a Justice (Alito) - who authored the idea of the relevancy of these Presidential Signing statements - now being granted the ability to use his SC position to argue to enforce these views with respect to achieving some (or more) Judicial cognizance of them.

Then we Ought to ALL be scared!!

And this law-breaking Crew at 1600 scares me quite enough already.
 

As I think that you indicate near the end of the post, I don't think that there is a necessary relationship between the President's internal control over the executive branch and presidential signing statements. Presidents might never issue signing statements and still limit the enforcement of a particular statute in ways that didn't naturally match with the text of the statute.

So we should, at least conceptually, separate presidential signing statements as part of enacting history from signing statements as principal/agent control within the executive branch.

I have blogged views on the former, available if you are interested at http://uchicagolaw.typepad.com/
 

I have no problem with signing statements when they are used to telegraph how an ambiguous statute will be enforced by the executive branch. That strikes me as perfectly fair and useful to those who are affected by the law.

But there is nothing at all ambiguous about the McCain amendment. It was written so as to be as categorical as a statute can be. During the debate over the amendment, Dick Cheney went to Congress and personally made the case for including some sort of exception to the rule for the so-called "ticking bomb scenario." This idea was considered and specifically rejected by Congress.

Yet it's pretty clear that this signing statement is intended to write such an exception into the law. As an anonymous senior administration official put it in the Boston Globe, "the president intended to reserve the right to use harsher methods in special situations involving national security."

That's not an interpretation of the statute. It's a nullification of it. It's a statement that the president will not carry out Congress's will. In a very real sense, it is a statement that the president's intent is diametrically opposed to Congress's intent. There may be legitimate reasons to use signing statements and even legitimate reasons for the courts to give them some weight, but those reasons, if they exist at all, certainly do not apply in this situation.
 

Are administrative agency officials members of the Executive Branch? Whatever the answer, they are part of the audience here. Given the substantial delegation of discretion by Congress to agencies, under almost all relevant statutes, the Presidential signing statements operate in fact as orders to the agency chiefs. They tell the chiefs how to alter the statutes to achieve Presidential intent, not Congressional. Perhaps Justice Scalia prefers to ignore legislative intent, but agencies need some master, and the signing statements assert that their direction is found in the Oval Office.
 

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