The question of executive signing statements has been in the news much as of late, and I have been asked on several occasions to state my current views on the subject. I come to this subject as one who has been consistently critical of President Bush’s aggressive interpretation of the inherent executive power as a way to escape the limitations of Congressional controls over his power found in Article I of the Constitution. Those concerns are obviously manifest in connection with the assertions of the President’s Commander in Chief Power (when that exact phrase is not in the Constitution) in control over military affairs, where I think that the President is grievously mistaken that his control over military matters is sufficient to negate the explicit power of Congress to “make rules for the government and regulation of the land and naval forces.”
I confess to taking a similarly bleak attitude toward any executive signing statements, which in my view carry the risk of skewing matters too heavily in favor of executive power.
In taking this position, I do not mean to single out the President for special treatment even if he has used this practice more than his predecessors. I take a similar dim view of efforts by members of Congress to massage the legislative history, often by post-enactment reconstructions of legislative history, in order to get a leg up in the disputes over statutory interpretation that always lurk down the road. It is not that these statements are necessarily wrong, even if often prompted by opportunistic motives. Rather it is that they should be used by courts only for the truth of the matter stated therein, which means that they should be given no more weight in litigation or administration than the same argument made by some third party in a law review article or op-ed. There is too much risk of abuse in allowing the attitudes of a single participant to a complex process to take the whip hand on critical points of interpretation.
The dangers are, however, greater when the President speaks. He speaks for an entire branch of government that is under his direct control. There are no rival interpretations as with legislative history. And more to the point, the President has the capability of instructing his inferior officers to follow his interpretation of the rules in ways that force any one who takes issue with him to make a direct challenge in court no matter how great the deviation between the statutory language and the statement.
One could argue that this delicate state of affairs exists with or without signing statements. If so, then why the big deal? But the point runs in both directions. If the signing statements are no big deal, then why does the President insist on making them with their quasi-official status? On this point I have an uneasy feeling which I hope proves wrong, which relates to the larger question of the status of judicial review.
To recap, the early decision in Marbury v. Madison (1803) rested on this neat procedural irony. Chief Justice Marshall introduces the doctrine of judicial review that allows the Court to strike down statutes that are not within the power of Congress to enact. But there is this odd feature. The remedy in that case was to do nothing, because on the ground Marshall’s decision held only that the Court did not have the power to order the President or Secretary of State to do anything, including issuing Marbury his coveted commission. That reading left open the question of what would happen if the decision of the Supreme Court required it to order the executive to do something, like enforce a desegregation decree in Little Rock in the 1950s. Now the Executive has to heed the Court’s order, or so the modern reading of judicial review requires. The use of the signing statements, I fear, could be the opening wedge to a Presidential claim that whatever the Court holds will limit his ability as President to use courts as a means to enforce our policies, but will not stop the President from acting unilaterally. So the President could continue to order wiretaps and surveillance in opposition to FISA after a Court said that he has exceeded his powers, even if he cannot use any evidence so obtained in a criminal prosecution. Judicial review, for all its rickety foundations, has served us well. The large question behind the short-term debate is whether the renewed interest in Executive Signing statements marks a change in Presidential attitude toward some pretty fundamental separation of powers questions. Let us hope it does not.