BETTER READ THE FINE PRINT
I've been thinking about Scumbya's rather underdeveloped sense of restraint when it comes to his appendage of so-called "Presidential signing statements" to legislation that has been crafted and approved by both Houses of Congress.
Admittedly, Bush is not the first President to use such statements (although they are of relatively recent mintage; he has used them far more than any other President; and he has used them on bills that have been the subject of substantial inter-branch tension - as opposed to his predecessors, who chiefly used them for bills with arcane language and of no particular constitutional significance).
A little history: It is said that Samuel Alito himself came up with the idea of a Presidential signing statement. Alito, it is said, stated in the mid '80's, "Courts are always looking to Congressional intent in interpreting the meaning of a bill. Why can't the Executive - a co-equal branch - provide its own view of what a bill means?" While Alito enthusiastically endorsed the signing statement concept, it did not originate with him.
His rationale for their existence, though, points out not only the danger of courts giving weight to such statements, but the inherent pointlessness of such statements:
When Congress debates over how to construct the language of a bill in Committee, in Conference, etc., it does so for the purpose of arriving at a finished product that reflects a consensus of representatives of the people who are charged with writing laws. Given that words are imprecise, and that people in Congress are not constitutional scholars, the legislative history of a bill, as recorded in the Congressional record, is often consulted by judges to divine what Congress really meant when it employed a certain phrase, concept or idea. Note, though, that Congress, neither by passing the bill, nor by speaking about it, is committing the ultimate act of "interpretation" - that is to say, specifically declaring that the bill is constitutional and applies to all citizens and must be enforced. Congress cannot do this, as a legal and practical matter, because to do so would violate the rule of Marbury v. Madison ("It is emphatically the province of the judiciary to say what the law is"), and because not only can it not enforce a bill (its lacking the sword to do so), enforcement is specifically delegated to another branch. Thus, committing the ultimate act of interpretation is so much bluster - practically speaking, Congress achieves nothing by it. Were a court to give weight to this kind of statement, the context under which judicial review is conducted would disappear and the very concept of "judicial review" would have no meaning. After all, how much does it matter what the text really says when Congress has declared the text is constitutional no mattter what it says?
Article I's "Presentment Clause" prescribes an amazingly simple role for the President in the "how a bill becomes a law" process. If the President proposes legislation, he can make his intent behind the legislation as clear as a whistle; all he is required to do, though (and that which he must do) is submit the legislation to Congress, who, if it rejects the President's interpretation and/or the clear langauge of the bill, votes against it, and the bill dies there and then - Congressional "intent" thus becomes irrelevant since no bill ever becomes the basis of a court challenge.
If Congress proposes legislation that is approved by both Houses, that legislation is no longer a work in progress, to be debated upon by a deliberative body representing the people, a body that must explain, justify and rationalize its own wording. The debating has already taken place within Congress, as it should have. Once the debate is over, what we have is a finished product.
This brings us to the real problem with Presidential signing statements: if a President, who "should" be concerned with the constitutionality of a bill, believes the bill's wording is unambiguous, then he should either sign or veto it - after all, since the judiciary says that only it can interpret laws, and that ANY statute that is clear on its face cannot have something read or written into it - there is no statement for the President to "sign in" to such a bill. (The McCain anti-torture amendment was clear on its face). If the President believes that a bill is ambiguous, he, as a matter of institutional competency, may not add his own statement to clear up the ambiguity. He is free to look at the Congressional record to divine meaning, and if this does not work, he can veto the bill.
This is not what Bush is doing. What he has done with, for example, the McCain anti-torture amendment, is that he has attempted to enact a de facto veto of the bill to which the amendment is attached. Clinton v. City of New York held that the line item veto is unconstitutional, because the Presentment Clause is clear: if a President approves a bill, he shall sign it; if not, he shall veto it - the very fact that a signing statement that uses language that disapproves, with clear verbiage, of the clear intent of clear words, exists, means the President has decided to unilaterally exercise a third, forbidden choice which the Constitution, having explicitly addressed this subject, does not give him. Bush's signing statement, in this case, should be regarded as an unconstitutional line item veto.
Say it were not, though. Say a judge actually attempted to give weight to this statement. There is no body of "signing statement interpretation" that the judge can consult, no canons of construction that exist, to help him divine what weight, if any, clear or unclear Presidential words can be given. If a judge were to give full effect to the signing statement, the judge would be in effect allowing the executive to write laws. The executive can make rules that flesh out statutes; it cannot write laws, since that would usurp Congress' function. See, e.g., Bowsher v. Synar. Moreover, for a judge to give this full effect would be for the judge to implicitly overrule Marbury v. Madison - the judge, by saying the signing statement controls, would not be saying what the law is, he would be saying that the President is the law. In other words, he would not be judging. While it is (and should be) true that a judicial act cannot be grounds for impeachment, the judge here would not be committing a judicial act - he would be committing a non-judicial one - surely an impeachable offense. If the Supreme Court held that signing statements should be given full weight, then every federal judge in the country would be bound by this impeachable act and should all be impeached. This would leave us with no judiciary. Not that Bush wants this. But the logical consequences of what he wants leave us with this result.
The "pointless" part of the signing statement is this: regardless of whether a judge decrees that the signing statement is law, if the possibility exists that a signing statement can become law, the deliberative exercise engaged in by Congress when it develops a bill becomes pointless, as does the veto power and the pocket veto power. Did the Framers intend for all of THESE things to become pointless? Yes, I'm sure they did. That's why they put them all in the Constitution and left the part about the President having the power to unilaterally alter the text of duly passed statutes out.
Finally, another logical absurdity arises if signing statements are given full effect. Since giving full effect destroys the horizontal structure, branch by branch, why should not vertical structure (time) have no meaning any more? Why cannot a subsequent President (who would presumably restock the federal judiciary one by one, as they take their oaths to defend the actual Constitution) declare either a) that we still have three co-equal branches of government, and that the signing statement is invalid, or b)declare that the signing statement is invalid, only to impose another one in its place?
Lunacy begets lunacy, and enough is enough.
Admittedly, Bush is not the first President to use such statements (although they are of relatively recent mintage; he has used them far more than any other President; and he has used them on bills that have been the subject of substantial inter-branch tension - as opposed to his predecessors, who chiefly used them for bills with arcane language and of no particular constitutional significance).
A little history: It is said that Samuel Alito himself came up with the idea of a Presidential signing statement. Alito, it is said, stated in the mid '80's, "Courts are always looking to Congressional intent in interpreting the meaning of a bill. Why can't the Executive - a co-equal branch - provide its own view of what a bill means?" While Alito enthusiastically endorsed the signing statement concept, it did not originate with him.
His rationale for their existence, though, points out not only the danger of courts giving weight to such statements, but the inherent pointlessness of such statements:
When Congress debates over how to construct the language of a bill in Committee, in Conference, etc., it does so for the purpose of arriving at a finished product that reflects a consensus of representatives of the people who are charged with writing laws. Given that words are imprecise, and that people in Congress are not constitutional scholars, the legislative history of a bill, as recorded in the Congressional record, is often consulted by judges to divine what Congress really meant when it employed a certain phrase, concept or idea. Note, though, that Congress, neither by passing the bill, nor by speaking about it, is committing the ultimate act of "interpretation" - that is to say, specifically declaring that the bill is constitutional and applies to all citizens and must be enforced. Congress cannot do this, as a legal and practical matter, because to do so would violate the rule of Marbury v. Madison ("It is emphatically the province of the judiciary to say what the law is"), and because not only can it not enforce a bill (its lacking the sword to do so), enforcement is specifically delegated to another branch. Thus, committing the ultimate act of interpretation is so much bluster - practically speaking, Congress achieves nothing by it. Were a court to give weight to this kind of statement, the context under which judicial review is conducted would disappear and the very concept of "judicial review" would have no meaning. After all, how much does it matter what the text really says when Congress has declared the text is constitutional no mattter what it says?
Article I's "Presentment Clause" prescribes an amazingly simple role for the President in the "how a bill becomes a law" process. If the President proposes legislation, he can make his intent behind the legislation as clear as a whistle; all he is required to do, though (and that which he must do) is submit the legislation to Congress, who, if it rejects the President's interpretation and/or the clear langauge of the bill, votes against it, and the bill dies there and then - Congressional "intent" thus becomes irrelevant since no bill ever becomes the basis of a court challenge.
If Congress proposes legislation that is approved by both Houses, that legislation is no longer a work in progress, to be debated upon by a deliberative body representing the people, a body that must explain, justify and rationalize its own wording. The debating has already taken place within Congress, as it should have. Once the debate is over, what we have is a finished product.
This brings us to the real problem with Presidential signing statements: if a President, who "should" be concerned with the constitutionality of a bill, believes the bill's wording is unambiguous, then he should either sign or veto it - after all, since the judiciary says that only it can interpret laws, and that ANY statute that is clear on its face cannot have something read or written into it - there is no statement for the President to "sign in" to such a bill. (The McCain anti-torture amendment was clear on its face). If the President believes that a bill is ambiguous, he, as a matter of institutional competency, may not add his own statement to clear up the ambiguity. He is free to look at the Congressional record to divine meaning, and if this does not work, he can veto the bill.
This is not what Bush is doing. What he has done with, for example, the McCain anti-torture amendment, is that he has attempted to enact a de facto veto of the bill to which the amendment is attached. Clinton v. City of New York held that the line item veto is unconstitutional, because the Presentment Clause is clear: if a President approves a bill, he shall sign it; if not, he shall veto it - the very fact that a signing statement that uses language that disapproves, with clear verbiage, of the clear intent of clear words, exists, means the President has decided to unilaterally exercise a third, forbidden choice which the Constitution, having explicitly addressed this subject, does not give him. Bush's signing statement, in this case, should be regarded as an unconstitutional line item veto.
Say it were not, though. Say a judge actually attempted to give weight to this statement. There is no body of "signing statement interpretation" that the judge can consult, no canons of construction that exist, to help him divine what weight, if any, clear or unclear Presidential words can be given. If a judge were to give full effect to the signing statement, the judge would be in effect allowing the executive to write laws. The executive can make rules that flesh out statutes; it cannot write laws, since that would usurp Congress' function. See, e.g., Bowsher v. Synar. Moreover, for a judge to give this full effect would be for the judge to implicitly overrule Marbury v. Madison - the judge, by saying the signing statement controls, would not be saying what the law is, he would be saying that the President is the law. In other words, he would not be judging. While it is (and should be) true that a judicial act cannot be grounds for impeachment, the judge here would not be committing a judicial act - he would be committing a non-judicial one - surely an impeachable offense. If the Supreme Court held that signing statements should be given full weight, then every federal judge in the country would be bound by this impeachable act and should all be impeached. This would leave us with no judiciary. Not that Bush wants this. But the logical consequences of what he wants leave us with this result.
The "pointless" part of the signing statement is this: regardless of whether a judge decrees that the signing statement is law, if the possibility exists that a signing statement can become law, the deliberative exercise engaged in by Congress when it develops a bill becomes pointless, as does the veto power and the pocket veto power. Did the Framers intend for all of THESE things to become pointless? Yes, I'm sure they did. That's why they put them all in the Constitution and left the part about the President having the power to unilaterally alter the text of duly passed statutes out.
Finally, another logical absurdity arises if signing statements are given full effect. Since giving full effect destroys the horizontal structure, branch by branch, why should not vertical structure (time) have no meaning any more? Why cannot a subsequent President (who would presumably restock the federal judiciary one by one, as they take their oaths to defend the actual Constitution) declare either a) that we still have three co-equal branches of government, and that the signing statement is invalid, or b)declare that the signing statement is invalid, only to impose another one in its place?
Lunacy begets lunacy, and enough is enough.
posted by EnterCenter at 12:55 PM
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