Saturday, December 24, 2005
Setting The Record Straight--The Presidential Signing Statement
Before beginning, let me thank profusely MHM for alerting me to this discussion of a presidential signing statement.
The "New York Times" editorial board responded to new information released on Samuel Alito's tenure at the Justice Department during the Reagan administration. The editorial focuses on two particular issues--Alito's defense of domestic wiretaps and for defending a "bald proposal for grabbing power for the president" by way of a "signing statement" designed to say "what the law means."
What the "New York Times" is referring to is a memo that Alito circulated in 1986 looking for novel ways in which the president could use the bill signing statement in order to advance his policy preferences, in addition to its usage to protect presidential prerogatives.
The presidential bill signing statement consists of a statement the president releases after signing a bill into law. The first instance of a bill signing statement occurred during the Monroe administration, when President Monroe objected to congressional interference regarding the president's commander-in-chief prerogative. It wasn't until the 1970s that the signing statement took on meaning. In the aftermath of Watergate and the attack upon the "imperial presidency," it became more difficult for the president to execute presidential prerogatives. Both Presidents Ford and Carter had wrecked, or "imperiled" presidencies as a result of this assault. Thus the Office of Legal Counsel within the Department of Justice looked to creative ways in which to turn back the assault on presidential prerogatives. One of these battles was a fight over the constitutionality of the legislative veto. Both the Ford and Carter administrations began to use the signing statement to excise or nullify any legislative veto provision found in bills that the president signed. In fact, by the end of the Carter presidency, so many nullifications were issued that the Congress added a provision to a Justice Department appropriations bill in 1978 that required the attorney general to inform Congress on any and every instance of nullification. As the Carter presidency ended, the Carter Justice Department decided to take a stand to determine whether the legislative veto was constitutional. The case, INS v Chadha, ended up falling to the Reagan administration to pursue since Carter lost the 1980 election. When the Supreme Court issued it's decision in the case, it cited a historical legacy of presidential defiance via the signing statement as a basis for striking down the legislative veto as an unconstitutional violation of the "Presentments Clause." Thus the Reagan administration sensed that the signing statement may carry more authority than simply a glorified press release, but rather a device in which the executive branch could exert more control over the bills signed into law.
The Reagan administration go further confirmation on the signing statement's importance when the Supreme Court utilized Reagan's signing statement of the deficit reduction bill "Graham-Rudmann" that nullified the role the comptroller general was authorized into executive branch functions. The comptroller-general is a legislative agent, and when the Congress empowered it with executive functions (implementation of appropriated funds) it violated the separation of powers provision in the Constitution.
It was because of the significant role the signing statement was afforded in the Reagan administration that their attention turned to other ways to expand its use. In 1985, a "Legislative Strategy Group" was given the task of expanding this role for the signing statement. It is at this point that Samuel Alito, then an assistant attorney general, is given this responsibility. He urged the administration to use the signing statement as a means of agency direction turing the rule making process. In 1984, the Supreme Court ruled that when agencies implemented legislation, it should always first look towards legislative intent. However, as was often the case, due to the conflict over certain language, agency heads would be faced with provision of a bill that are not clearly defined. The Supreme Court ruled that when faced with this problem, the agency should use "reasonable agency discretion" to implement the provision. This, according to the Legislative Strategy Group, was the perfect place for a signing statement. Agency heads should always be implementing legislation in the manner in which the president preferred, and no one else. Hence, by inserting the signing statement into the "Legislative History" section of the "United States Code Congressional and Administrative News."
Thus, in late February 1986, attorney-general Ed Meese III proclaimed at a speech at the National Press Club that the administration had made an agreement with the folks at Westlaw who published the "United States Code..." to have the bill signing statement added to the legislative history of a bill to insure that the president's interpretation was given equal weight to congressional intent. In fact, at the time, most of the concern for the president's action centered on the bold attempt by the presidency to influence judicial decisions, when in fact that was a smokescreen for the real intent--influencing administrative decisions, and if it did influence judicial decisions as well, then that was a bonus (see Garber, Marc N. and Kurt Wimmer. "Presidential Signing Statements as Interpretations of Legislative Intent: An Executive Aggrandizement of Power." in The Harvard Journal on Legislation. 24:363-395. 1987).
The work of Alito and the others in the Legislative Strategy Group was of a big help to the president, but mostly to Presidents Bush, Clinton, and Bush. In fact, if the "New York Times" really wants to see a "bald proposal for grabbing power," then it should look to the OLC defense of the signing statement during the Clinton administration, as I have referenced before, but to those who forgot, you can read this and this.
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The "New York Times" editorial board responded to new information released on Samuel Alito's tenure at the Justice Department during the Reagan administration. The editorial focuses on two particular issues--Alito's defense of domestic wiretaps and for defending a "bald proposal for grabbing power for the president" by way of a "signing statement" designed to say "what the law means."
What the "New York Times" is referring to is a memo that Alito circulated in 1986 looking for novel ways in which the president could use the bill signing statement in order to advance his policy preferences, in addition to its usage to protect presidential prerogatives.
The presidential bill signing statement consists of a statement the president releases after signing a bill into law. The first instance of a bill signing statement occurred during the Monroe administration, when President Monroe objected to congressional interference regarding the president's commander-in-chief prerogative. It wasn't until the 1970s that the signing statement took on meaning. In the aftermath of Watergate and the attack upon the "imperial presidency," it became more difficult for the president to execute presidential prerogatives. Both Presidents Ford and Carter had wrecked, or "imperiled" presidencies as a result of this assault. Thus the Office of Legal Counsel within the Department of Justice looked to creative ways in which to turn back the assault on presidential prerogatives. One of these battles was a fight over the constitutionality of the legislative veto. Both the Ford and Carter administrations began to use the signing statement to excise or nullify any legislative veto provision found in bills that the president signed. In fact, by the end of the Carter presidency, so many nullifications were issued that the Congress added a provision to a Justice Department appropriations bill in 1978 that required the attorney general to inform Congress on any and every instance of nullification. As the Carter presidency ended, the Carter Justice Department decided to take a stand to determine whether the legislative veto was constitutional. The case, INS v Chadha, ended up falling to the Reagan administration to pursue since Carter lost the 1980 election. When the Supreme Court issued it's decision in the case, it cited a historical legacy of presidential defiance via the signing statement as a basis for striking down the legislative veto as an unconstitutional violation of the "Presentments Clause." Thus the Reagan administration sensed that the signing statement may carry more authority than simply a glorified press release, but rather a device in which the executive branch could exert more control over the bills signed into law.
The Reagan administration go further confirmation on the signing statement's importance when the Supreme Court utilized Reagan's signing statement of the deficit reduction bill "Graham-Rudmann" that nullified the role the comptroller general was authorized into executive branch functions. The comptroller-general is a legislative agent, and when the Congress empowered it with executive functions (implementation of appropriated funds) it violated the separation of powers provision in the Constitution.
It was because of the significant role the signing statement was afforded in the Reagan administration that their attention turned to other ways to expand its use. In 1985, a "Legislative Strategy Group" was given the task of expanding this role for the signing statement. It is at this point that Samuel Alito, then an assistant attorney general, is given this responsibility. He urged the administration to use the signing statement as a means of agency direction turing the rule making process. In 1984, the Supreme Court ruled that when agencies implemented legislation, it should always first look towards legislative intent. However, as was often the case, due to the conflict over certain language, agency heads would be faced with provision of a bill that are not clearly defined. The Supreme Court ruled that when faced with this problem, the agency should use "reasonable agency discretion" to implement the provision. This, according to the Legislative Strategy Group, was the perfect place for a signing statement. Agency heads should always be implementing legislation in the manner in which the president preferred, and no one else. Hence, by inserting the signing statement into the "Legislative History" section of the "United States Code Congressional and Administrative News."
Thus, in late February 1986, attorney-general Ed Meese III proclaimed at a speech at the National Press Club that the administration had made an agreement with the folks at Westlaw who published the "United States Code..." to have the bill signing statement added to the legislative history of a bill to insure that the president's interpretation was given equal weight to congressional intent. In fact, at the time, most of the concern for the president's action centered on the bold attempt by the presidency to influence judicial decisions, when in fact that was a smokescreen for the real intent--influencing administrative decisions, and if it did influence judicial decisions as well, then that was a bonus (see Garber, Marc N. and Kurt Wimmer. "Presidential Signing Statements as Interpretations of Legislative Intent: An Executive Aggrandizement of Power." in The Harvard Journal on Legislation. 24:363-395. 1987).
The work of Alito and the others in the Legislative Strategy Group was of a big help to the president, but mostly to Presidents Bush, Clinton, and Bush. In fact, if the "New York Times" really wants to see a "bald proposal for grabbing power," then it should look to the OLC defense of the signing statement during the Clinton administration, as I have referenced before, but to those who forgot, you can read this and this.
