There’s been a lot of discussion in recent weeks of President Bush’s aggressive use of so-called ‘signing statements’. They got attention lately because of the one he signed which argued, in so many words, that he did not believe that the ‘McCain law’ barring torture was actually binding on him.
The point of these signing statements is to achieve for presidents something like what Congress does through so-called ‘legislative intent’. By one measure the law is just what is down there in black letter in the legislation itself. But courts will frequently also look at what Congress thought it was doing, what it intended to do, when it passed the law. So they’ll look at the debates which accompanied the legislation, stuff various members put into the Congressional Record, and so forth.
This process is easily abused. But that’s a separate matter. At least in principle, some review of legislative intent seems reasonable in interpreting legislation, though divining what the intent actually was is likely much easier said than done.
But back to signing statements. Again, the idea seems to be here to allow the president his own version of legislative intent, to imbed what he thinks the law means into the record, presumably for future courts to take into consideration or to justify at some later point how he chooses to implement the law.
Sam Alito, twenty years, wrote that “Since the president’s approval is just as important as that of the House or Senate, it seems to follow that the president’s understanding of the bill should be just as important as that of Congress.”
(As with John Yoo, this seems to me to be another example of how the greatest threat to our constitution may be the noodling of brainiac young lawyers who ply their wizbang ‘logic’ in the absence of what seems like just about any serious historical grounding in the traditions and practices of our system of government.)
But as Andrew Sullivan notes here and elsewhere, the president’s understanding of the law or interpretation of it is irrelevant. Indeed, to imagine that this is not so turns the whole structure of our government on its head.
Congress makes laws. The president has all sorts of power invested in him by the discretion he has in enforcing the laws. But what the laws are, what they mean, is entirely beyond his purview.
Parsing this out can just be an exercise in high school civics. And at the margins it may be a fine point. But there’s something big going on here.
This is the executive invading the territory of the Congress and to an extent also the judiciary. Now, I know I’m not the first one to say or realize this. There’s a body of literature and debate about this theory of the unitary executive.
But this bunkum about ‘signing statements’ is a good example, a good opportunity to point out how these theories are solecisms in the scheme of our constitutional structure. For all their chatter about originalism and the constitution, these folks are trying to import alien ideas into the fabric of our republican system of government.
