Lifelike Pundits: Signing Statement Silliness

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August 17, 2006

Signing Statement Silliness

Of late there has been a much-ado-about-nothing in the media regarding signing statements. (1) (2) President Bush has been accused of using signing statements more than any other President, and of therefore somehow eroding the checks and balances in the Federalist system. I'm going to take the position that signing statements are neither relevant nor new, and that they pose no danger to the Republic by an increase in frequency.

To begin with, you must understand that signing statements have no legal force. None whatsoever. They are frippery, with about as much significance to the legal process as the stripes on the sleeves of the late Chief Justice William Rehnquist. Signing statements are things that a president writes (or says) when he signs a bill into law, and they usually are emotive things like ‘This law respects the great importance of our waterways.’ Every once in a while a president will sign a bill, and the signing statement will say ‘This is a good bill except for section XYZ, which I believe is unconstitutional and therefore I will not enforce it.’

This is not a veto. It is an opinion by the Chief Executive who is tasked with defending the Constitution that a part of the law is injurious to the Constitution. The law is still a good law. The law can still be enforced, by government entities or private parties, depending on its nature. The law is still on the books for the next presidential administration.

The question can be raised, but what about this administration? Can a president refuse to enforce a section of law? The answer is yes; it is called executive discretion. Many laws on the books are not actively enforced by government entities due to priorities in other areas. For example, the FBI may assign only one agent, or even no agents, to deal with a certain category of crime that they feel is non-existent, or of low-priority, compared to other categories of crime. The only checks on executive discretion are elections and the impeachment process (and possibly the Senate confirmation process).

Next one would ask whether this statement of intended executive discretion (which is all this is, an honest statement of how the executive intends to act) is in fact corrosive to the checks and balances system that is at the core of our system of government. The thing to keep in mind is that signing statements are not new. President Monroe used them. For almost two centuries, presidents have signed bills into law while saying that they do not believe part of the bill is constitutional. The Republic still stands.

That President Bush is being accused of using these signing statements more than other administrations is not necessarily true, but irrelevant besides. If it is a constitutional thing to do, then the frequency of occurrence does not suddenly make it unconstitutional.

This is really the core of my position. If it is constitutional, it is constitutional regardless of how often it happens. For example, if administrative agencies are constitutional (because the non-delegation doctrine has been rejected, see Mistretta v. U.S., and then note that the author of the Mistretta dissent wrote Whitman v. American trucking Assoc., Inc.), then the number of agencies are not a constitutional issue for the courts, they are left to the political process (see the 1980 presidential election). The frequency of signing statements is irrelevant.

In any event, I think that the number of such statements issued is more accurately tabulated by the provisions so designated compared to the number of provisions passed. In other words, the percentage will tell more than the number, and given the current administration’s reluctance to use a veto, the second side of that ratio is probably higher than many people suspect. I believe that if someone were to tabulate that, they would not get the ‘750 laws’ figure.

The Senate is weighing legislation to fast-track judicial review of laws in response to signing statements here. The ABA disagrees with me here. The Federalist Society agrees with me here. A law professor compares the Clinton administration and the Bush 43 administration regarding the matter here. Laurence Tribe weighs in here. For whatever it’s worth, Wikipedia’s entry is here.

Oh, and a plug for my friend’s role-playing game that just debuted at GenCon is here…not that it has anything to do with my post.

Posted by Charles at August 17, 2006 01:12 AM

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Comments

Great stuff!!!

I just came downstairs (called in to the office today) and saw that some judge knocked down the warrantless surveillance...

This is another gift to the GOP and Bush needs to send his judges to the Senate for confirmation tomorrow!

Posted by: aaron at August 17, 2006 01:53 PM

I'm trying to go through the opinion now, it's 44 pages. I might be able to put a post about it today or tomorrow.

But yes, politically it is not a good thing for the Democrats.

Posted by: Charles at August 17, 2006 02:40 PM

UPDATE:

Law.com (the best source of legal news, IMHO) has a piece here on the matter, as apparently Justice Scalia asked about a signing statement regarding the Americans with Disabilities Act.

Posted by: Charles at August 17, 2006 02:43 PM

Can the president ignore a bill declaring war?

Posted by: paul at August 17, 2006 08:35 PM

paul,

http://www.c-span.org/guide/congress/glossary/pktveto.htm

http://en.wikipedia.org/wiki/Pocket_veto

http://www.senate.gov/reference/glossary_term/pocket_veto.htm

Posted by: Charles at August 18, 2006 12:29 PM

fine, this way then. Say Mr. Pres signs Dec of War against Japan, Taiwan, and China, but because his wife is Japanese, doesn't go to war with Japan.

Posted by: paul at August 18, 2006 01:03 PM

I can't do this anymore. I simply cannot talk to paul. I have no idea what these questions had to do with my post.

Goodbye paul, have fun.

Posted by: Charles at August 18, 2006 01:20 PM

You said "Can a president refuse to enforce a section of law? The answer is yes; it is called executive discretion"

I was just wondering if that went to declaration of war. So easily confused you are.

Posted by: paul at August 18, 2006 02:14 PM

(I don't know why I am doing this, it's not like he listens...)

paul, do you really equate declaratons of war with multi-provisional statutory enactments?

Posted by: Charles at August 18, 2006 03:56 PM

I'm asking you what you think, and where you draw the line on what the president may and may not ignore, is all.

Posted by: paul at August 18, 2006 03:59 PM

I think that as a practical matter a president can do whatever they want, but they'll get impeached if the push the line too far. As a legal matter a president has more of a right to interpret the constitutionality of a provision than he does to decide not to declare war. The declaration of war is solely reserved to the legislative branch, the responsibility to interpet statutory language in a way that does not offend the Constitution is shared among all three branches, with the judicial branch having the ability to trump the other two.

Posted by: Charles at August 18, 2006 04:31 PM

Aren't there 100s of Blue Laws in this country that no one enforces - and if they were enforced would be immediately struck down as unconstitutional?

You cannot just say a law is unconstitutional until the law is enforced. There must be a party who is affected by the law.

What about this?

Posted by: aaron at August 19, 2006 06:38 PM

I would have to see the Blue law in question to answer that.

In general whether or not one can say a law is unconstitutional or not before the matter is enforced is one of standing in a court.

This is not a judgement sought in court, it is an expression of opinion. This is not an opinion of someone to strike down the law, the law is still good. This is not just any plaintiff, this is the President, who took an oath to "preserve, protect and defend the Constitution."

Signing statements do not say that a law is unconstitutional - legally. They can't, they have no legal force. Signing statements say that a law is unconstitutional - as a matter of opinion. It just so happens to be that the opinion of this person matters when it comes to discretionary enforcement.

I recall that there were cases where the standing requirement was waived by the USSC when it suited them, but I really, really hope that the above answer sufficed and you won't make me go back and look at 3 year's worth of notes. ;-)

Posted by: Charles at August 20, 2006 12:44 AM

Since the Supreme Court does not hear "test" cases, it would be impossible to determine if an unenforced blue law is constitutional or not.

Posted by: paul at August 20, 2006 09:34 AM

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