A role for courts on presidential statements
Senate Judiciary Committee Chairman Arlen Specter, Pennsylvania Republican, would provide a significant role for the Supreme Court and lower courts in reaction to statements that Presidents make in signing new legislation into law. On Wednesday, Specter introduced S. 3731, “the Presidential Signing Statements Act of 2006,” to begin congressional consideration of the idea. The text of the bill is here. Specter’s statement on introduction of the measure can be found here; the statement is taken from the Congressional Record. President Bush has been drawn into a rising controversy over aggressive use of such statements, particularly to signal his unwillingness to follow some parts of new laws that he has signed.
Specter’s bill would create a rule of statutory interpretation, to be followed by the Supreme Court and all lower federal courts, that they may not rely upon a presidential signing statements in determining what a federal statute means. Specter noted that the Supreme Court’s reliance on such statements “has been sporadic and unpredictable.”
The proposal next would allow Congress to go into court — presumably, U.S. District Court — “to seek a declaratory judgment on the legality of presidential signing statements that seek to modify — or even to nullify — a duly enacted statute,” as Specter put it.
Finally, in a provision that would apply only to the Supreme Court, the bill would give Congress “the power to intervene in any case in the Supreme Court where the construction or constitutionality of any act of Congress is in question and a presidential signing statement for that act was issued.” Specter commented: “That way, if the Court is trying to determine the meaning or the constitutionality of an act, the Congress gets a voice in the debate.”
Some of these ideas track proposals made earlier this week by an American Bar Association task force, discussed here.
“That way, if the Court is trying to determine the meaning or the constitutionality of an act, the Congress gets a voice in the debate.”
So Congress wants to give itself the power of judicial review? In order to preserve the separation of powers?
Congress already has a voice in the debate — the statute itself (and the Congressional Record).
And individual Members of Congress are also entitled to submit amicus briefs as they see fit.
The Presentment Clause makes no provision for presidential signing statements, just as it makes no provision for a line-item veto. That ought to be the end of the discussion.
Comment by KipEsquire — July 27, 2006 @ 1:42 pm
“Congress already has a voice in the debate — the statute itself (and the Congressional Record).”
“The Presentment Clause makes no provision for presidential signing statements, just as it makes no provision for a line-item veto. That ought to be the end of the discussion.”
Does the Presentment Clause make provision for reliance on the Congressional Record?
Comment by Adam White — July 27, 2006 @ 3:58 pm
This invites courts, when the bill doesn’t go anywhere, to give more credit to signing statements than they currently do (very little, I believe).
Why stop at signing statements? Why not overrule Chevron and other rulings, and not give strong discretion to agency judgment? At some point, executives will have broad discretion to apply laws.
As with the courts, this will result in some de facto law making. There is a nailing jello to the wall quality here, isn’t there? Will courts to look at agency practice etc. to help interpret application of the law also be in trouble now?
This law also stretches the “case and controversy” standing rules … members of Congress tried to use the courts to defend their powers against “line item vetoes,” and the SC said no. They waited until a particular person was harmed.
This doesn’t bode well.
Comment by Joe — July 27, 2006 @ 6:26 pm
This whole thing seems a tad ridiculous. First, the president’s views on the meaning of what he is signing seems to be as important as legislative history (if you are one that thinks these things relevant). Second, are we really going to have a declaratory judgment every time the president decides to opine on the constitutionality of a particular law?
Comment by federalist — July 28, 2006 @ 2:38 am