Presidential Signing Statements

PRESIDENTIAL SIGNING STATEMENTS….Twenty years ago, as a lawyer in the Reagan administration, Samuel Alito pioneered the use of presidential signing statements as a way of expanding executive power at the expense of Congress. Since then, though, these statements have been largely ignored by the Supreme Court.

Today Samuel Alito is on the Supreme Court, and the Boston Globe’s Charlie Savage points out that the dissent in the Hamdan case includes the following from Antonin Scalia:

“Of course in its discussion of legislative history the court wholly ignores the president’s signing statement, which explicitly set forth his understanding that the [Detainee Treatment Act] ousted jurisdiction over pending cases,” Scalia wrote.

In a footnote, Scalia also included the text of Bush’s signing statement on the law. In the statement, Bush instructed government lawyers to file briefs arguing that the new law stripped courts of the power to hear “existing” detainee lawsuits, although the text of the law did not say it was meant to apply retroactively.

Alito and Clarence Thomas joined the dissent, and Chief Justice John Roberts probably would have as well if he hadn’t recused himself from the case. The pioneer of the presidential signing statement is apparently busy lobbying his colleagues to give these statements the same weight they traditionally give to legislative history.

Of course, the whole point of legislative history is that it happens before a bill is passed, and is thus part of the compromise and debate that fashions the bill in the first place. Presidential signing statements, by contrast, are unilateral statements that are not debated ? or even seen ? by anyone before they pop out of the Oval Office like Athena from the forehead of Zeus.

So how does this play out? Currently, legislation is written as a compromise not just between legislators, but between legislators and the president. It’s Congress that debates the bill, but the president influences its wording partly by appeals to fellow party members and partly by threats of a veto. That negotiation is all part of the bill’s legislative history.

But if the Supreme Court decides that post-debate signing statements should also be routinely considered as part of a bill’s legislative history, then surely Congress will start to insist on negotiating these statements before legislation is sent to the president for his signature. I’ll bet John McCain wishes he had done that on the torture bill that George Bush so casually gutted after months of arduous negotiation.