Friday, May 05, 2006
The Road to Hell is paved with good intentions....and signing statements
Michael Kinsley has some good things to say in today’s Op-Ed, Constitutional Cafeteria. Media Blog on National Review Online is mainly positive in its review of his column and I share its overall concurrence with Mr. Kinsley’s point that the Press is invoking a double-standard.
“Michael Kinsley catches the press in another double standard: Journalists object to Bush's "signing statements" in which he formally declares his constitutional interpretation of a bill as it becomes law; yet they insist on following their interpretation of the First Amendment when it comes to protecting sources, even though the courts have consistently ruled that they are wrong:”
Unfortunately, that’s not the only point Mr. Kinsley is making:
“.."signing statements," in which the president offers his interpretation of an act of Congress as he signs it into law. This was an innovation of the Reagan administration, intended to give courts something other than a law's legislative history -- that is, Congress's side of the story -- in any future dispute. Bush often signs a law and at the same time says that parts of it are unconstitutional. Sneaky!”
Fair enough; many conservatives have blasted the President on this very issue. However, our problem is not in his identifying a law as “unconstitutional” but in his signing of same anyway – most notably (and disturbingly) when he signed McCain-Feingold. Mr. Kinsley implies this has happened more than once although I am unaware of any other instance. The president has intimated he can ignore provisions of laws that would contravene his Presidential authority (particularly as Commander-in-Chief) but that’s not the same as saying (parts of) a law are inherently unconstitutional.
Then this gratuitous slam at President Reagan:
“What was dangerous about the Reagan administration's signing statements initiative was the claim that a president is entitled to govern according to his or her own interpretation of the Constitution even after the courts have ruled. This is a recipe for near-dictatorial executive power, not to mention governmental chaos in which no fundamental issue can ever be resolved.”
Of course, this is sheer hyperbole as President Reagan claimed no such thing. What did occur back then was that now-Justice Alito, while working with the Office of Legal Counsel in DOJ, drafted a memo outlining the use of a “…Presidential Signing Statement to Make Fuller Use of the President's Constitutionally Assigned Role in the Process of Enacting Law.” Alito 1986 Memo
Presidents have long issued signing statements but normally not as some formalized strategy toward future interpretation of the law. But by the mid-eighties, it was clear that many courts were using the nebulous “legislative intent” standard in interpreting statutes. To do so, they would go back to the legislative history, including some of the pre-passage debate. Realizing this, legislators could gear statements just for such an eventuality. Presidential signing statements, then, were just a counteract measure to get, on record, what a president thought he was signing. In other words, it was simply a protective reaction to the courts use of non-statutory language to interpret a statute.
“Michael Kinsley catches the press in another double standard: Journalists object to Bush's "signing statements" in which he formally declares his constitutional interpretation of a bill as it becomes law; yet they insist on following their interpretation of the First Amendment when it comes to protecting sources, even though the courts have consistently ruled that they are wrong:”
Unfortunately, that’s not the only point Mr. Kinsley is making:
“.."signing statements," in which the president offers his interpretation of an act of Congress as he signs it into law. This was an innovation of the Reagan administration, intended to give courts something other than a law's legislative history -- that is, Congress's side of the story -- in any future dispute. Bush often signs a law and at the same time says that parts of it are unconstitutional. Sneaky!”
Fair enough; many conservatives have blasted the President on this very issue. However, our problem is not in his identifying a law as “unconstitutional” but in his signing of same anyway – most notably (and disturbingly) when he signed McCain-Feingold. Mr. Kinsley implies this has happened more than once although I am unaware of any other instance. The president has intimated he can ignore provisions of laws that would contravene his Presidential authority (particularly as Commander-in-Chief) but that’s not the same as saying (parts of) a law are inherently unconstitutional.
Then this gratuitous slam at President Reagan:
“What was dangerous about the Reagan administration's signing statements initiative was the claim that a president is entitled to govern according to his or her own interpretation of the Constitution even after the courts have ruled. This is a recipe for near-dictatorial executive power, not to mention governmental chaos in which no fundamental issue can ever be resolved.”
Of course, this is sheer hyperbole as President Reagan claimed no such thing. What did occur back then was that now-Justice Alito, while working with the Office of Legal Counsel in DOJ, drafted a memo outlining the use of a “…Presidential Signing Statement to Make Fuller Use of the President's Constitutionally Assigned Role in the Process of Enacting Law.” Alito 1986 Memo
Presidents have long issued signing statements but normally not as some formalized strategy toward future interpretation of the law. But by the mid-eighties, it was clear that many courts were using the nebulous “legislative intent” standard in interpreting statutes. To do so, they would go back to the legislative history, including some of the pre-passage debate. Realizing this, legislators could gear statements just for such an eventuality. Presidential signing statements, then, were just a counteract measure to get, on record, what a president thought he was signing. In other words, it was simply a protective reaction to the courts use of non-statutory language to interpret a statute.
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There's a real difference between signing McCain-Feingold while believing it's fundamentally unconstitutional and signing a law that has one constitutionally problematic provision (for example, one that tries to limit the President's power to remove a government official). Reagan signed the reauthorization of the independent counsel law in 1987 while believing it was unconstitutional, and, like Bush's signing of McCain-Feingold, this is a really big problem, in my view. It's a violation of his oath of office.
It's true that one purpose of signing statements is to counteract legislative history, which courts really shouldn't use in the first place, but I think there are others. For one, it's a statement of the executive branch's interpretation going way to the top of the executive branch. Which means it tells all subordinate executive officials how they have to interpret the law. And the executive branch, unlike the legislative branch, actually has the constitutional responsibility to interpret the law.
I'm not totally sure what Kinsley is thinking of with respect to Reagan. Two possibilities: Reagan refused to enforce certain provisions of law that he thought were unconstitutional. He also, for a short time, engaged in intra-circuit non-acquiescence -- refusing to accept a court of appeals ruling as controlling. Later, that policy was abandoned, and it became a perfectly normal policy of INTER-circuit non-acquiescence, in which the government doesn't simply accept the first court of appeals decision when it litigates in other circuits. One of my favorite names for a legal doctrine -- non-mutual offensive collateral estoppel -- doesn't apply against the government.
It's true that one purpose of signing statements is to counteract legislative history, which courts really shouldn't use in the first place, but I think there are others. For one, it's a statement of the executive branch's interpretation going way to the top of the executive branch. Which means it tells all subordinate executive officials how they have to interpret the law. And the executive branch, unlike the legislative branch, actually has the constitutional responsibility to interpret the law.
I'm not totally sure what Kinsley is thinking of with respect to Reagan. Two possibilities: Reagan refused to enforce certain provisions of law that he thought were unconstitutional. He also, for a short time, engaged in intra-circuit non-acquiescence -- refusing to accept a court of appeals ruling as controlling. Later, that policy was abandoned, and it became a perfectly normal policy of INTER-circuit non-acquiescence, in which the government doesn't simply accept the first court of appeals decision when it litigates in other circuits. One of my favorite names for a legal doctrine -- non-mutual offensive collateral estoppel -- doesn't apply against the government.
Wow - I guess you've given thgis subject some thoughtbefore today...I agree as to alternative purpose; during the Clinton administration they became a way of countering the steamroller that Gingrinch et al. must have seemed to the President and keeping the presidency 'relevant'.
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