Presidential Authority Gone Wild?

Rita Molina is having trouble posting and asked me to put up the following interesting bit from her:

Can the President make legislative history?  Now my first inclination was to say - "Of course not!  He's not a legislator."  However, apparently the executive branch (as far back as 1986) has used "presidential signing statements" to contribute to legislative history.  See the intriguing article by Jennifer Van Bergen on findlaw:  http://writ.corporate.findlaw.com/commentary/20060109_bergen.html.  According to the article, the U.S. Supreme Court has even relied on those statements when interpreting laws.  Now it seems like that would bring up a whole range of issues, but the use of signing statements appears to have largely passed under the radar.  Question to any readers - could a governor do the same?  My extensive research into Oregon governors (which consisted of asking two Smart People) revealed a use of veto statements but no signing statements.

My (Ming) own though is that the use of signing statements to interpret law raises separation of powers concerns.  The role of the executive is to execute law, and not to interpret it, which is at least part of what's going on in a signing statement.  To the extent the president is interpreting law, is he not encroaching on the province of the judiciary?

Comments

[Charlie Hinkle]

I agree with Ming completely. If the president signs a bill that says "The apple is hereby declared to be the national fruit," and during the signing ceremony says, "I interpret this bill to mean that oranges will be the national fruit," his view cannot change the meaning of the bill. Of course, a member of the legislature should not be able to alter the meaning of a bill by making a similar statement in the course of legislative debate.

[Ed Trompke]

I disagree, at least in part. (This probably reflects a more Jeffersonian side of the debate.) The executive has a duty to interpret the constitution in the first instance when executing the laws. To deny the executive that prerogative would require the president to seek advisory opinions from the courts, prior to taking actions where an uncertainty as to constitutionality exists. Advisory opinions are not permitted, because they are not cases or controversies. However, the judiciary has authority to give the interpretation a second look, when an executive action, based on that interpretation, is challenged.

The Congress also may also give the executive action and interpretation a separate and independent second look, either by amending the law, or when the interpretation is raised in an impeachment context. For example, if the 4th amendment/war powers debate that Senator Specter’s committee is looking into were decided against the executive in the Congress, it might not matter what the Supreme Court thought about it. Congress would decide whether any executive action taken pursuant to that interpretation constituted a high crime or misdemeanor sufficient to warrant impeachment. And that kind of Congressional action should remain beyond the judicial power, no matter how much judicial activism might seem appropriate in the eye of a beholder.

But I agree that presidential contributions to "legislative" history should be considered by courts only sparingly. While executive action is a part of the legislative process, a court should consider presidential statements in limited cases, such as when considering the relevance of a presidential veto (of amendments to a law, primarily), the lack of a veto of a law, or if the executive statement purports to restate Congressional intent. The last case should not carry great weight.

If you want to discuss this, please post a comment. Don't email me.

[Chin See Ming]

Well, I agree, as a logical matter, that when the president applies law, he must first determine its meaning, that is, he has to interpret the law, either explicitly though statements, or implicitly, through conduct. In your impeachment example, as you say, that interpretation may never reach the courts as an issue.

It is when we go beyond the impeachment context, in a more typical challenge in the courts to the president's application of the law, that I think separation of powers concerns arise. Given that it's the courts responsibility to interpret the law, I just don't see why signing statements, when they purport to be explicit interpretations, should be given any weight.

[Ed Trompke]

We're not far apart. The legislative process contemplates that the executive must either sign a bill or veto it (including a pocket veto). That makes the executive part of the legislative process. This executive duty demonstrates a case where the constitution itself blends the powers of the two branches. There can be no separation of powers issue because the lack of separation arises out of the constitution itself, making it stand on equal ground with the separation requirement. (I guess there is nothing pure in our political system, least of all politics.)

Given that the executive is part of the legislative process, if the executive says he or she would veto a bill but for some interpretation that the executive gives the bill, then the statement has relevance to its construction. The statement may not be controlling, especially if it applies a strained reading to the language of the bill. And, the courts should not speculate as to the possible outcome of a vote to over-ride a contemplated veto. Lack of votes to sustain a veto may well be the "real" determining factor when deciding not to veto a bill. That is why courts should use caution when relying on presidential statements. They happen at the end of the process, do not influence debate and cannot result in modification of the bill. The satements will often be self-serving political blather. But they are part of the legislative history.

If the executive merely issues a statement that is not important as to whether or not the bill was vetoed, then the statement should generally be ignored. But, it may have importance, if, for example, it discusses a conference committee's action to find a compromise on terms of the bill.

In this example, and in other cases, there may be shades of relevance that are hard to generalize without application to specific facts. That may be what the Supreme Court did in the two cases cited in the article that prompted this discussion.

In any case, the issue is far from simple where two constitutional provisions bump into each other, one mandating separation of powers, and the other mixing the executive into the legislative process.

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