Today, Senator Arlen Specter, now Ranking Member of the Senate Judiciary Committee, has introduced legislation designed to tackle the use of the presidential signing statement. S. 1747, "The Presidential Signing Statement Act of 2007" comes with a fairly detailed press release by Senator Specter. According to Specter, his bill is designed to "protect the constitutional system of checks and balances" in the following ways:
- Prevent the president from using the signing statement "to alter the meaning of a statute" by ordering the courts--both federal and state--not to rely upon it when deciding a case;
- Allow Congress the opportunity to participate in any case where the "construction or constitutionality of an act of Congress is in question and a signing statement was issued when the act was signed."
To be honest, after reading the bill and the press release, I can only conclude that Senator Specter is more interested in publicity than addressing the signing statement. I also think this particular effort is misguided for a couple of reasons:
First, I don't think he can tell the Supreme Court what evidence a member may or may not rely upon when deciding a case. As it is, there is one side of the spectrum, represented by Justice Antonin Scalia, that eschews relying upon anything other than the plain meaning of the text. Therefore he and others do not use any legislative history other than the bill sitting before them. On the opposite side of Scalia, representing the other end of the spectrum, is Justice Stephen Breyer, who believes that a judge should avail himself to all pertinent material when deciding the meaning of law--which includes congressional reports, statements of floor managers, conference committee memos, floor debate, and even presidential bill signing statements.
Second, it is sporadic when a signing statement comes into play in the outcome of a decision, and even when it does, it often isn't crucial to deciding the case. For instance, in the Chadha decision, the Supreme Court simply noted a past practice of Presidents objecting to the use of a legislative veto. When Justice White finished the decision, the legislative veto died because it violated the Presentments Clause and Bicamerialism, and not because of the president's signing statement. Some other decisions rely upon the signing statement in greater detail. When President Reagan signed the "Gramm-Rudman" balanced budget bill, he objected to the use of executive powers by a legislative agent, which the Supreme Court used in deciding the case. However, in the Hamdan decision, the Supreme Court rejected President Bush's signing of the Detainee Treatment Act outright (see Scalia's dissent where he scolds the Majority for relying upon all sorts of extraneous congressional documents, but not the signing statement, pg. 12-13.). As Specter rightly notes in his release, the recent GAO Report on the signing statement noted that reliance by judges on the president's signing statement is sporadic at best. So why go to all the effort of passing "veto proof" legislation for something that isn't much of an issue anyway?
Third, Specter continues to miss the target--the influence of the Executive Branch agencies. He charges: "If the President is permitted to rewrite the bills that Congress passes and cherry pick which provisions he likes and does not like, he subverts the constitutional process designed by our Framers." I don't think it is cherry picking that is the problem. The problem is that some agencies abide by the challenges in the statement while others simply do not. The GAO Report clearly showed that in areas that are important to the President--particularly in large appropriations bills--the President and his staff will dedicate resources to seeing the challenge through. We need a complete picture of where those areas are. The GAO Report provided an opening that Congress does not seem to want to take. If the Congress really wants to clamp down on the use of signing statement to challenge or reconstruct, it has to have some sense of where those are likely to happen. That is step one. Thus Congress should commission the GAO to follow up on the recent Report, be more thorough and systematic. Then, after identifying where those areas are, it should write its bills so that they are "signing statement-proof." For instance, a number of signing statements--particularly of the type that allow the President reconstruction of language--where contentious battles between the House and the Senate take place that leaves provisions vulnerable. Case in point was the 1986 Immigration bill that I have referenced elsewhere. In that bill, a provision that was designed to protect individuals fired because of discrimination was crippled after the House and the Senate could not come to agreement over proof of discrimination. Thus when President Reagan signed the bill, he took advantage of that contentious debate and defined the provision so that burden of proof was on those who were fired, which was completely at odds with the sponsor of the provision. Thus writing particular provisions so that they are clear and get Executive Branch agents on record agreeing with the intent of Congress might be a start.
Fourth, Senator Specter and others should begin to take into consideration the power of the President to interpret the constitutional meaning of legislation he signs into law. This power, which is referred to as "coordinate construction" or "departmentalism" argues that each branch of government must decide on what is or isn't constitutional. Therefore when a president signs a bill with one provision that he feels violates the Constitution, he has every right to do that. In fact, he is obligated by the oath he takes when he is sworn into office to protect and defend the Constitution. This theory often gets dismissed as "Right-Wing fantasy" or part of the "Imperial Presidency," but it is clear that it has had advocates or proponents in every administration since Nixon. And what's more, there are now a number of Supreme Court Justices, not to mention lower-court judges, who are orphans of the Justice Department's Office of Legal Counsel (OLC) since Watergate who are also proponents of the theory. Certainly Chief Justice Roberts, Associate Justices Scalia, Alito, and Thomas are firm believers of the unitary executive, and with it the belief that the president is as obligated to protect the Constitution from unconstitutional acts as the Court is. It may even be too late for Congress to mount a legal challenge. Better yet--Congress should step up and be vigorous protectors of their prerogatives and of the Constitution, and to start by dispensing with bills such as this one by Senator Specter.
