I come at the Constitution as an outsider. I don’t know the secret handshakes that the con law guys know. Santa was nice enough to bring our house a copy of National Treasure, and I am now convinced that the interesting side of the Constitution may be the one without the (visible) text. I also bring a West Wing sensibility to the legislative process. In 43 minutes—we netflix West Wing—President Jed Bartlet knocks together a few congressional heads and justice is done as new legislation emerges.
Notwithstanding that, sometimes it is hard not to put fingers to keyboard and so here I find myself. Presidential signing statements are much in the news given the hearings concerning the possible confirmation of Judge Sam Alito to the U.S. Supreme Court. In today’s New York Times, Adam Liptak has a detailed discussion of presidential signing statements and the topic appears in the excerpts from yesterday’s testimony (in particular that by Duke Professor Erwin Chemerinsky).
Here is my question: how do we think legislative history would operate if we had a tricameral legislature? That is, three humps rather than two (even the private law folks know the bad public law jokes). Suppose our legislature consisted of three chambers: how would we write legislative history? As you can guess, I think the answer to that tells us something about how we should think about presidential signing statements.
We should orient for a second. Google tells me that genuine tricameral legislatures are quite rare. (Go to this paper by Alun Preece and search it on tricameral for info.) But as my colleague Judge Richard Posner has noted frequently (see here and search Lexis for his published work on this), the U.S. Constitution embraces a form of tricameralism. Domestic legislation emerges through one of two paths. One path requires unanimity: the President, Senate, and House all agree on new legislation. That path only requires a majority vote in each of our legislative chambers and agreement by the President. Alternatively, the Senate and House can pass legislation without the consent of the President if two-thirds of the members of each chamber vote in favor of the legislation.
Imagine how legislative history would operate in our hypothetical tricameral legislature. Note this is not a question about how we should use legislative history, but rather how we should write legislative history. My question is not whether Justice Scalia is right in shunning legislative history or whether we should consult legislative history as frequently as we now consult Google. Instead the question is how should legislative history be written, and much more narrowly, what role would each chamber should play in writing that history?
Suppose that our tricameral legislature required unanimity: no legislation was passed unless each chamber voted in favor. Presumably each chamber would play a co-equal role with regard to legislative history. We would have a House report, a Senate report, and a third-chamber report, as well as perhaps a joint report of the three chambers.
In this framework, the case for presidential signing statements as having co-equal status as legislative history as the House and Senate reports seems straightforward. At least two differences between the hypo and our reality. First, you might say that Congress has an agenda-setting power: Congress presents the bill to the President, and the question is whether that presentment power privileges the position of Congress as to the text. Should we think that Congress has more or less control over the text given that it moves first and the President moves second? The game-theorist in me is skeptical about a claim that this sequence matters. Congress should do, as we would put it in the game-theory world, backwards-induction on the President. If the President has the power to block a bill, Congress needs to take that into account when it drafts it; if the President doesn’t have that power, the President doesn’t matter for the process.
That takes us to the second difference between the pure tricameral hypo and how the federal government is organized. Our dual-path process for domestic laws complicates matters considerably. We can now imagine at least three legislative states:
· State 1: Legislation enacted where each of P, S and H consents, and where the votes in S and H are majority votes but a least one chamber lacks a super-majority in favor.
· State 2: Legislation enacted with a unanimous P, S and H (like the first case), but where both S and H have super-majorities in favor.
· State 3: Legislation enacted over the veto of the President.
Presidential signing statements might have different status in each of these cases. In states two and three, the consent of the President is irrelevant. He wasn’t needed for enactment and it isn’t obvious that his statements regarding the legislation should be taken seriously. But in state one, the President is essential to the passage of the legislation. Suppose that the President issued a presidential signing statement with a particular interpretation of an opaque phrase, noting further, that on a contrary interpretation, he would have vetoed the legislation. Could this be pretextual? Of course, but we have genuineness concerns with all legislative history, and it isn’t clear that presidential signing statements are peculiarly suspect.
Note another complicating factor. As a legislator, your vote only matters directly if you are pivotal, that is, if your vote actually determines whether the legislation passes or fails. This means that in actual voting in Congress many votes are free. As a result, members may not vote their actual preferences but instead vote in a way that maximizes their political opportunities. This means that a member who actually supports legislation and who would vote in its favor if she were pivotal may vote against the legislation if it will pass anyhow and a nay vote would play better with the constituents at home.
In the three-state legislative framework described above, whether legislation passes with a majority vote or a super-majority vote might alter the legislative history status of a presidential signing statement. It seems unlikely that an individual legislator would be willing to invest in a politically costly vote to marginalize a possible presidential signing statement, but if she would do that, that might be interesting in and of itself.