Sign on the Line

There's been a lot of comment about presidential signing statements recently, including this post. I've been giving the matter some more thought.

The idea behind such statements is to create an executive counterpart to legislative history, the reports of congressional committees and statements by senators and congressman at hearings or on the floor that are sometimes used by judges to interpret the meaning of laws. In law school, I had a couple of truly eminent professors (one of them a giant in law teaching; his younger colleague later Dean of Harvard Law School) who thought that legislative history was, to use a technical term, hooey. There are 535 members of Congress, they said. How can the statement of one or a few of them really express what is in the minds of the whole body? Good point.

Be that as it may, however, the concept of deciphering legislative intent has some intellectual basis, because it is Congress that writes the laws. The President's interpretation of the law, as expressed in a signing statement, has not comparable intellectual weight. The President's responsibility is to sign the law or veto it; his role in debating meaning is fulfilled in a veto message, if any.

To a great extent, the president's signing statement is a guide to how his administration will interpret the law--which as the executive branch, it is entitled to do. There are, really, limited circumstances in which an administration is required to do something. The President cannot raise revenue--that's on of the bases of the separation of powers--but it's hard for Congress to force him to spend it. (About the only way to do that is to tell the President that he cannot spend money for something he dearly wants unless he spends the money for whatever it is that he's resisting.) Congress may make some act a crime, but the administration can decide to give prosecution a priority so low that for all practical purposes the offense will not exist.

There are, it seems to me, two great objections to signing statements. One is the possible use of them by future administrations or by courts in interpreting statutes. Now it is true that a court or government official may take the considered opinion of anyone into consideration--law review articles are a common example--in deciding what a particular provision means. But it is clear that proponents of signing statements mean to exalt them by attaching the prestige (low though it is these days) of the presidency to them. I do not believe this to be a matter of much significance, because I doubt that such statements will change minds--judges or later presidents are much more likely to quote signing statements as justification for doing what they are going to do anyway.

A much greater difficulty arises when the President expresses his intent to do something that Congress has forbidden. The example most often heard today is Bush's statement that the statute outlawing the use of torture on detainees will not limit his authority as commander in chief. If the President is saying that he considers himself free to go on abusing people in custody, there is a real problem. Still, the greater objection will arise when and if the government actually does torture a detainee.

In the end, I suspect, presidential signing statements will be seen as meaningless or, worse, dumb, in exposing the President's intent to do wrong to public view even before he does it.
They are likely to fade into history. (When they occasion some great constitutional crisis, one of you out there will be sure to remind me.)