Epstein on Presidential Signing Statements

Richard Epstein, the libertarian legal scholar from the University of Chicago, has an op-ed piece in yesterday's Chicago Tribune about the dangers of how Bush is using presidential signing statements. He points out how differently Bush is using them than his predecessors did:

There is nothing new about a president adding a "statement on signing" to legislation he has approved. Since the country was founded, presidents have used these statements for relatively innocuous purposes: to thank supporters, explain their support for the bill or express satisfaction--or dissatisfaction--with legislation passed by Congress.

What is new and troubling is the extraordinary frequency with which President Bush has used these statements, and the unorthodox way he uses them...

In these statements, the president often has claimed that the new laws violate the Constitution and signaled his intention not to enforce certain provisions, despite having signed them into law.

He points out that Bush has issued nearly as many signing statements as all of his predecessors combined in over 200 years, and he explains why they are so dangerous. They are essentially a way to circumvent the checks and balances found in the Constitution:

If the presidential signing statements are no big deal, why does the president make them? One reason is that it skews the administration of a statute by presidential subordinates before a matter gets into court. A second--and more troubling--point relates to the larger question of the role of judicial review.

Modern understanding of judicial review requires the executive branch to take its marching orders from the Supreme Court. Signing statements, I fear, could be the opening wedge to a presidential posture that judicial decisions may limit the president's ability to use courts to enforce his policies, but cannot stop him from acting unilaterally. On this theory, the president could continue to order wiretaps and surveillance in opposition to the Foreign Intelligence Surveillance Act after a court had determined that he has exceeded his powers--he just couldn't use the evidence acquired in court. Different branches of government have different views of the law, yet the executive marches on. A major check on executive power goes by the boards.

When you consider that in combination with the astounding volume of anti-judicial rhetoric that has come from the right over the last few years - calls for mass impeachment, calls for the DOJ to refuse to enforce court rulings, arguments that the states can ignore rulings they disagree with, jurisdiction limiting legislation in Congress - it's truly a frightening situation. We really do face the possibility of a major constitutional crisis in this country if this sort of rhetoric is actually put into action.


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Yesterday's New York Times has a lead editorial in which they argue that the Bush administration's response to 9/11 has "...far less to do with fighting Osama bin Laden than with expanding presidential power." That Cheney saw 9/11 as an opportunity to expand the powers of the presidency that in his view had been lost in Watergate and in Reagan's arms for hostages deal so he pushed Bush (who had probably never given the issue a moment's thought in his preceding 54 years) to reclaim those "lost powers."

The Times goes on to assert that the fight against terrorism was further shaped by a determination "...never to consult, never to ask and always to fight against any constraint on the executive branch..." producing a "...frayed democratic fabric in a country founded on a constitutional system of checks and balances..." and "...a less effective war on terror."

Their basic point is essentially that Bush, under Cheney's tutelage, has used 9/11 to push the envelope of presidential power rather than to come up with the most efffective means of countering the actions of Osama Bin Laden and his allies, damaging the nation's governance as a whole and reducing the effectiveness of the fight against terrorism.

I rarely write senators, but I wrote both (FL) regarding the Alito vote. I was particularly concerned because as a member of the Reagan DOJ, he apparently argued that courts should consider presidential signing statements when interpreting the meaning of a law.

This disturbs me greatly. We have invested in our Executive a single, awesome power over the legislative process: the ability to reject a law passed by a large majority of the legislature. This power is necessarily conservative -- it can only be used to preserve the status quo. It is also not absolute -- a veto can be overridden by a super majority.

Considering presidential signing statements in the interpretation of a law violates both of these properties of the veto. The exectutive should not (after the vote) add anything to the discussion of the meaning of a bill. Second, there is no constitutional way for the legislature to second-guess a signing statement.

It scares me greatly that even one member of the Supreme Court could have argued for so unconstitutional an executive power.

The problem isn't presidential signing statements in general. Courts can consider such statements, just as they can consider legislative history, for purposes of interpretation. There are circumstances where a signing statement makes sense, such as when there is vague language that requires interpretation by the executive branch before making administrative rules to implement the legislation. So for someone to argue that courts should consider signing statements is not bothersome. The problem lies in Bush's particular use of such signing statements. He has used them as a line item veto, which is clearly unconstitutional.

Ed Brayton | July 17, 2006 10:17 PM

The problem isn't presidential signing statements in general. Courts can consider such statements, just as they can consider legislative history, for purposes of interpretation. There are circumstances where a signing statement makes sense, such as when there is vague language that requires interpretation by the executive branch before making administrative rules to implement the legislation.

The example that you give isn't exactly on point. A president might issue a "signing statement" regarding what he believes to be vague language in the legislation, with a view towards issuing administrative rules, but it is highly doubtful that, after the rules are issued, a court would give such a "signing statement" any weight. The "signing statement" would be interpreted as little more than a direction to the relevant agency to conform the rules that it issues to the president's interpretation in the "signing statement," which direction could be issued whether or not it is made at the time of signing.

If the president believes that the language is sufficiently vague, he can veto the bill and return it to congress with an explanation of the bases for the veto. The constitution provides for that. In that case, the congress can choose to try to override the veto, or to amend the legislation to address the president's objections. "Signing statements" effectively skirt this constitutionally-allowed procedure.

Thank you, Raj, for clarifying my point. Ed, I think your example is valid for issues regarding the administration of the executive branch. Nobody would argue that this is fully within presidential power.

I don't think this was the argument Alito was making. Unfortunately it was too long ago and I can't remember if I read Alito's original writings, so I may be unfair to Alito. What I remember at the time of his nomination was that in the DOJ he advocated that judges should consider signing statements as part of the legislative history of the law. This clearly violates separation of powers. If a justice ever argued such a point I think everyone should be concerned.

As Raj points out, there is a clear constitutional path. A president can easily veto a bill, saying, "I can't sign this highway bill because it appears to require all rest area bathrooms to be unisex." Congress can easily amend and re-pass the law saying that no such interpretation is valid. Congress could also over-ride the veto, implicitly stating that the interpretation is valid. In either case, the president's "veto statement" should be considered by the courts, because the veto truly is part of the legislative history. However, signing statements are not part of the legislative history.

Ed, your point about Bush's actual use of signing statements is quite valid and scary. He is using them as a line-item veto, telling the administration not to enforce certain laws or provisions of those laws. Unfortunately, there are two avenues for redress. My question is, how do we deal with it?

Presidential signing statements, if they are legitimate matters of interpretation, should obviously not be considered as a part of legislative history. But I think a solid argument can be made for the courts considering them on an equal basis with legislative history. The president has a role in making legislation, just as the Congress does. They may offer their interpretation of the text, and so may he. There's nothing wrong with courts considering that as one of the many factors they consider. Now, when such signing statements are illegitimate, as when they assert a right to ignore those parts of the law the president doesn't like, then the court should not only reject such statements, they should prohibit the executive from even offering them.