More on Signing Statements

I wrote last week about this relatively new phenomenon of signing statements, where the President uses a bill-signing ceremony to make a proclamation basically determining what parts of the law by which he will or will not abide. This was used last week in reference to John McCain's anti-torture amendment, where the President's signing statement basically said "I won't torture, unless I want to, and then I will." McCain has responded that he will use strict oversight to counteract the signing statement, but it's unclear where that would go legally. From a "strict constructionist" perspective it would seem that the text of the law is the law, and that Presidents aren't able to pick and choose what laws they will follow and what laws they will overrule. But in our current climate, anything is possible. After all, in the next couple weeks we might confirm the guy who came up with this nonsense to the Supreme Court:

In a Feb. 5, 1986, draft memo, Alito, then deputy assistant attorney general in the Office of Legal Counsel, outlined a strategy for changing that. It laid out a case for having the president routinely issue statements about the meaning of statutes when he signs them into law.

Such "interpretive signing statements" would be a significant departure from run-of-the-mill bill signing pronouncements, which are "often little more than a press release," Alito wrote. The idea was to flag constitutional concerns and get courts to pay as much attention to the president's take on a law as to "legislative intent."

This played out in an extreme expansion of signing statements from the Reagan years onward. Reagan used 71. Bush I doubled up to 146 in half the time. Clinton did it 105 times. Our current President ballooned to 500, more than all other Presidents combined.

I don't understand the difference in using this little subversion as opposed to directing the Justice Department to sue over the unconstitutionality of provisions in a particular law. Alito sees it as getting the executive view on record before ever going to the courts. It's almost a pre-emptive strike on the inevitable judicial review that will occur when delaing with Congressional laws and their implementation by the executive.

But it's more than that. It's an attempt to go around Congress and bury the legislative intent in the process. I recall Clinton doing this with regard to the Communications Decency Act:

President Clinton and the Justice Department say they don't "intend" to prosecute people who put abortion information on the Net. And that's good enough, according to a federal judge in Brooklyn who threw out a challenge to a law that prohibits making such information available to minors.

The little-known provision, part of the Communications Decency Act, took effect when the CDA was signed in February 1996. Nine abortion rights groups and individuals filed a lawsuit to block the provision. Soon after, the Justice Department specifically said it wouldn't prosecute online producers of abortion material.

Justice Charles Sifton issued his decision on March 12, saying that the government's promise not to prosecute was grounds to dismiss the case. He said the government is good for its word because, for example, it has never prosecuted a statute passed in 1897 that made it illegal to cross state lines with information about products "intended to induce abortion."

That precedent would tend to make one believe that these signing statements are accepted Constitutional practice and settled law. That decision was not a Supreme Court ruling, however, which I think we need. This is basically an end run around a line-item veto. I'm pretty sure I don't like it, and the President needs to have his power checked by either signing the laws passed by Congress or vetoing them. You shouldn't be able to have it both ways. This is certainly not what the Founders foresaw: note the NINE uses of the practice in the first 100 years of the Republic. I wouldn't want any President to have this kind of power. We have seen Presidential power expand and contract over the years. It was at an ebb after Watergate, then shot back up more recently. It's time to get a ruling on this, once and for all. I'd like to see the "textualists" like Scalia argue that a President can interpret Congressional legislation any way they want.