Two Questions about [or Types of] "Signing Statements"
Mark Tushnet
tushnet at law.georgetown.edu
Sun Jan 8 10:49:55 PST 2006
I think it may be worth distinguishing analytically between two
types of signing statements (and therefore worth looking for
different histories). The first is the "unconstitutional provision"
statement, of the sort Gordon Silverstein quotes. This statement
might be significant to a departmentalist account of constitutional
interpretation, and might have some influence on judicial
interpretation, but -- putting the question of non-enforcement to
one side because it's been discussed already -- is
indistinguishable from any "expert" opinion on constitutionality.
The second is the interpretive signing statement, in which the
President asserts that, as he understands it, the statute *means*
thus-and-so. Here the question is whether this is different from
statements about statutory meaning made in, for example,
committee reports -- or statements on the Senate floor. If it's no
different, of course, that would mean to some that both types of
statement should be ignored, but to others that both have some
weight. (The only difference that's come up in conversations that
I've had is that legislative statements are subject to challenge
before the statute is sent to the President --and if challenged,
might be given diminished weight -- whereas the President's
statement cannot be challenged [does that mean it automatically
has full weight, or actually less than full weight?]; are there any
others?)
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I discuss this in a book called IMBALANCE OF POWERS: CONSTITUTIONAL
INTERPRETATION AND THE MAKING OF AMERICAN FOREIGN POLICY (Oxford, 1996):
***********
The tradition of signing legislation (making it law), but attaching an
Executive interpretation, or understanding, to that law, seems to have
started with Truman. In 1946 and 1947 Truman attached his own interpretation
to two labor laws. As Arthur Krock noted, Truman had "twice expanded in
unusual fashion his part in the legislative process." (NYT, May 16, 1947)
The objective was to establish an alternative understanding of the law
should the law ultimately wind up in litigation. This approach has become a
staple of presidential action, and it was particularly common in the 1970s
as Presidents consistently signed (and followed) laws that were predicated
on legislative vetoes -- but just as consistently, they attached signing
statements disputing the constitutionality of the restriction. As President
Ford noted in signing the National Emergencies Act in 1976, "I support the
purposes of the enrolled bill. One of its provisions, however, would purport
to permit the Congress to terminate a national emergency by a concurrent
resolution. This feature of the bill is unconstitutional." But, Ford added,
he considered the veto provision "as separable from the rest of the bill,
and would therefore expect the other provisions relating to emergency powers
to remain in force." (Set 14, 1976) Though the Court has fairly consistently
maintained that signing statements in no way release the Executive from
executing the laws as written. (In Lear Siegler v. Lehman and U.S. senate v.
Lehman - 842 F.2d 1102 (1988), the courts ruled that the President has NO
authority to determine which part of the law to 'faithfully execute' ..
later cases indicate that the Court is willing to grant the President a
great deal of latitude in the interpretation of statutes, barring the most
explicit language from Congress. (see Japan Whaling Assoc v. American
Cetacean Society, 478 U.S. 221 (1985).)
********
- Gordon
***************************************
Gordon Silverstein
Assistant Professor
Department of Political Science
210 Barrows Hall
The University of California
Berkeley, CA 94720
ph: 510-642-4683
fx: 510-642-9515
email: gsilver at berkeley.edu
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<DIV><SPAN class=3D187311818-08012006><FONT color=3D#0000ff>I discuss =
this in a book=20
called IMBALANCE OF POWERS: CONSTITUTIONAL INTERPRETATION AND THE MAKING =
OF=20
AMERICAN FOREIGN POLICY (Oxford, 1996):</FONT></SPAN></DIV>
<DIV><SPAN class=3D187311818-08012006><FONT=20
color=3D#0000ff></FONT></SPAN> </DIV>
<DIV><SPAN class=3D187311818-08012006><FONT=20
color=3D#0000ff>***********</FONT></SPAN></DIV>
<DIV><SPAN class=3D187311818-08012006><FONT=20
color=3D#0000ff></FONT></SPAN> </DIV>
<DIV><SPAN class=3D187311818-08012006>
<P class=3DMsoNormal=20
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style=3D"FONT-SIZE: 12pt; FONT-FAMILY: Arial; mso-bidi-font-weight: =
bold">The=20
tradition of signing legislation (making it law), but attaching an =
Executive=20
interpretation, or understanding, to that law, seems to have started =
with=20
Truman. In 1946 and 1947 Truman attached his own interpretation to two =
labor=20
laws. As Arthur Krock noted, Truman had "twice expanded in unusual =
fashion his=20
part in the legislative process.” (NYT, May 16, 1947) The =
objective was to=20
establish an alternative understanding of the law should the law =
ultimately wind=20
up in litigation. This approach has become a staple of presidential =
action, and=20
it was particularly common in the 1970s as Presidents consistently =
signed (and=20
followed) laws that were predicated on legislative vetoes -- but just as =
consistently, they attached signing statements disputing the =
constitutionality=20
of the restriction. As President Ford noted in signing the National =
Emergencies=20
Act in 1976, "I support the purposes of the enrolled bill. One of its=20
provisions, however, would purport to permit the Congress to terminate a =
national emergency by a concurrent resolution. This feature of the bill =
is=20
unconstitutional." But, Ford added, he considered the veto provision "as =
separable from the rest of the bill, and would therefore expect the =
other=20
provisions relating to emergency powers to remain in force.” (Set =
14, 1976)=20
Though the Court has fairly consistently maintained that signing =
statements in=20
no way release the Executive from executing the laws as written. (In =
Lear=20
Siegler v. Lehman and U.S. senate v. Lehman – 842 F.2d 1102 =
(1988), the courts=20
ruled that the President has NO authority to determine which part of the =
law to=20
‘faithfully execute’ …. later cases indicate that the =
Court is willing to grant=20
the President a great deal of latitude in the interpretation of =
statutes,=20
barring the most explicit language from Congress. (see Japan Whaling =
Assoc v.=20
American Cetacean Society, 478 U.S. 221 (1985).)</SPAN></P>
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bold"></SPAN> </P>
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style=3D"FONT-SIZE: 12pt; FONT-FAMILY: Arial; mso-bidi-font-weight: =
bold"><SPAN=20
class=3D187311818-08012006>********</SPAN></SPAN></P>
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<P class=3DMsoNormal=20
style=3D"MARGIN: 0in 0in 0pt; mso-pagination: widow-orphan"><SPAN=20
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class=3D187311818-08012006></SPAN></SPAN> </P>
<P class=3DMsoNormal=20
style=3D"MARGIN: 0in 0in 0pt; mso-pagination: widow-orphan"><SPAN=20
style=3D"FONT-SIZE: 12pt; FONT-FAMILY: Arial; mso-bidi-font-weight: =
bold"><SPAN=20
class=3D187311818-08012006>- Gordon</SPAN></SPAN></P>
<P class=3DMsoNormal=20
style=3D"MARGIN: 0in 0in 0pt; mso-pagination: widow-orphan"><SPAN=20
style=3D"FONT-SIZE: 12pt; FONT-FAMILY: Arial; mso-bidi-font-weight: =
bold"><SPAN=20
class=3D187311818-08012006></SPAN></SPAN> </P>
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class=3D187311818-08012006></SPAN></SPAN> </P>
<P class=3DMsoNormal=20
style=3D"MARGIN: 0in 0in 0pt; mso-pagination: widow-orphan"><SPAN=20
style=3D"FONT-SIZE: 12pt; FONT-FAMILY: Arial; mso-bidi-font-weight: =
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bold"><SPAN=20
class=3D187311818-08012006>
<P><FONT size=3D2>***************************************<BR><BR>Gordon=20
Silverstein<BR>Assistant Professor<BR>Department of Political =
Science<BR>210=20
Barrows Hall<BR>The University of California<BR>Berkeley, CA =20
94720<BR><BR>ph: 510-642-4683<BR>fx: 510-642-9515<BR><BR>email:=20
gsilver at berkeley.edu<BR><BR>***************************************</FONT=
>=20
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