by Matt Barr

Presidential signing statements III: I don't care, and neither should you

Part I
Part II
Part III

An American Bar Association task force has a report out condemning the overuse of Presidential signing statements, those "interpretations" of new laws the President issues upon signing the bills, indicating how and whether he intends to enforce certain provisions. In one sense this is interesting as a matter of constitutional structure, in another sense it's troubling (the ABA having a great deal of clout) for the war on terror, and in another sense it's really overblown. We're considering each issue, starting with the interesting constitutional issues, continuing with the current President and the war on terror, and concluding now with why this doesn't matter as much as it seems.

What precisely is the argument for signing statements? Bear with me. It's more complicated than "I can do whatever I want." If that were so, you wouldn't have to say so, would you?

The latter half of the 20th century saw a lurch toward citing "legislative intent" as a guide to understanding laws. Taken that far, it seems intuitive and harmless. But courts glommed on to this mechanism, culminating in a time, 1969-71, when more than half of Supreme Court majority opinions cited legislative history. See the article accompanying this download page. Reliance on legislative history -- committee reports, transcripts of floor debates, Congressional hearing testimony, and so on -- has waned since then, but has never disappeared. This may be because, as Mr. Justice Scalia wrote, "It is less that courts refer to legislative history because it exists than that legislative history exists because courts refer to it."

The problems with reliance on legislative history are legion, and mostly beyond our present scope: Legislative history, after all, doesn't get voted on or passed into law or signed by the President; a single conference committee report, to the extent it expresses the "intent" of the committee's members, or more likely its majority members, certainly doesn't necessarily reflect the "intent" of everybody who voted on the bill; and courts are generally good at interpreting statutes but not quite as good at reading minds. As Mr. Justice Jackson once wrote in concurrence: "I should concur in this result more readily if the Court could reach it by analysis of the statute instead of by psychoanalysis of Congress."

In an era when courts are disposed to be complicit in the circumvention of democracy and to "interpret" things to mean whatever the prevailing party convinces them they ought to mean, legislative history is here to stay. Legislative history, it should be noted, was developed in response to "activist courts" of the early 20th century divining "legislative intent" in their analysis of laws. Rather than stopping them from doing that, Congress decided to take care that as much useful material as possible was published in committee reports, floor debates, testimony and so on so courts couldn't take as many liberties. That's worked out as well as you might expect.

In the same way, rather than fight the (waning but not disappearing) prevalence of reliance on legislative intent, the last three Republican administrations have set about fighting fire with fire. Congress is ostensibly saying what "it" means in its legislative history; signing statements represent what the President has in mind when signing a bill.

Whether this is a great idea or just aggravating depends on whether you regard Congress and the President as co-equal in the business of evaluating the meaning of statutes, and that question is the thorny one that underlies these posts. But that's what you get out of signing statements: an effective counterbalance to Congress' legislative intent.

There is an argument that it's even more powerful. While committee reports, floor speeches and the like can't reasonably be construed as evidencing the intent of Congress in its entirety, a Presidential signing statement is almost certainly evidence of what the President had in mind when he signed the bill.

Whether or not signing statements are "better" than legislative intent, they're in any case of the same kind and character. So you end up in one of a few possible different places.

If what the President had in mind is irrelevant because he's the President and shouldn't be in the business of interpreting what Congress says and means, then signing statements are superfluous and nobody should be getting all worked up.

If signing statements are more valuable than evidence of Congressional intent, you still run into the problem that "intent" shouldn't be the basis of statutory interpretation by anybody. You may disagree, but the rub is that Republican administrations have been appointing Justices (or trying to) who don't, and disregard of "intent" is a thick plank in conservative jurisprudence. You can't really have it both ways: Textualism, four corners of the statute, etc. etc. but my signing statement is a big deal.

If your signing statement is some kind of final word and deserves deference, then the ABA Task Force and your opponents are wrong, so again there's no controversy.

But is it really that simple? It may be. Consider the practical effect. If your argument, if you're brought into court, is going to be that you have the power to enforce or not enforce parts of laws however you'd like, can't you make that argument without having published a signing statement? I think it's obvious that you can, and I think that if the Bush administration figured out a reason to depart from Congress's intent long after having signed a bill, they don't strike me as the type to glumly do what Congress says because gosh, they forgot to get their signing statement right.

This blog was among those that warned you to be careful what you wished for with the Hamdan ruling: If you're going to try detainees you must do so in more traditional courts than military tribunals, but the right of the President to hold detainees without trial at all is unaffected. Similarly, the path of least resistance out of the use or overuse of signing statements is not to toe Congress's line, it's to stop publishing signing statements at all -- and then do whatever you want.

There is enough play in the joints of executive discretion that only the most flagrant and obvious disregard for Congress's intent would get an administration into court, and as we've discussed the same arguments, undiminished, would be available to it as are now. Signing statements are actually preferable to silence when it comes to knowing what the administration intends and is up to, if that's what you're all about.

I'm wholly in agreement with the ABA Task Force that the President should work harder to make Congress aware of his concerns during the process of developing legislation and should veto when he's not satisfied. But in fact signing statements are (or should be) as ineffective as legislative history in understanding what a law says and means. Even if effective, they're superfluous, doing administration watchdogs more good than anything else.

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