Two Questions about [or Types of] "Signing Statements"
RJLipkin at aol.com
RJLipkin at aol.com
Sun Jan 8 14:09:35 PST 2006
In a message dated 1/8/2006 3:14:48 PM Eastern Standard Time,
marty.lederman at comcast.net writes:
The President should not construe a statute in a way that would come as a
shock to the legislature that voted for it -- particularly not in secret.
That's what happened with the NSA violations of FISA, and it's what has happened
now with the McCain Amendment signing statement (except that the latter was
Marty's entire response is helpful. And I agree with him about NSA, FISA,
and secrecy. But I am not at all sanguine about criteria that invokes the idea
of "reasonableness" on grounds that transcend this particular situation.
But let's bracket that for now.
Consider a statute involving equality in government contracts.
Suppose further that the entire history of the legislation pretty clearly
suggests that Congress did not intend race preferences. Suppose further that the
statute although limited to government contracts involves a number of provisions
about different kinds of contracts--military, infrastructure, inner city
renewal, service, and so forth; it is not some gargantuan omnibus bill about
many different projects replete with pork.
One provision says something to the effect that the bill requires
the appropriate agency to regard each bidder equally and to review all bids
fairly. The President happens to be a vigorous supporter of affirmative action.
Consequently, the President issues the following signing statement: "I
intend to interpret and enforce the 'fairness and equality' provision so that it
does not preclude taking into account as one factor (giving a plus to)
minorities traditionally discriminated against even if their bids are not quite as
good as the bids of others. And finally suppose the President enforces the
statute pretty close to the way Congress intended except for 5% of the cases
where he or she instructs the appropriate agency head to permit a minimal number
of race based contracts. Or if this confuses interpretation with
enforcement, suppose the President expresses his or her interpretation of the provision
in a manner consistent with the above hypothetical but has not yet enforced
Does Marty find it sinister or reasonable for the President in the
above hypo to stick to his or her interpretation arguing that Congress stated
its intent textually through the use of the terms "fair" and "equal," and the
proper interpretation of those terms permit a minimal number of race based
contracts. (Let's not now argue about whether these terms lend themselves to
such an interpretation. Obviously some say no, others say yes.)
Congress doesn't view these terms to be ambiguous. There's simply a
sharp difference between how it regards the language and how the President
regards it. (In others words, recall how Dworkin interprets the EPC as
incorporating general moral principles about equality and concludes (wrongly in my
view) that even if the Framers thought equality and segregation compatible, the
best understanding of the former precludes segregation. Hence, Dworkin
insists fidelity to the constitutional text and to the original meaning of the
EPC, renders segregation constitutionally impermissible. I hope this reference
to Dworkin is helpful; if not, ignore it.) Perhaps the President's
interpretation is sharply different from Congress', but is it unreasonable? Moreover,
any relative savvy congressperson would realize that the kind of controversy
involved here is systemic in constitutional law and probably also in
statutory construction. Hence, no savvy legislator would be shocked, only angry.
In sum, it seems something along the lines of the above hypothetical
is perfectly conceivable. There's an interpretive dispute between Congress
and the President, not because "fair" and "equal" and necessarily ambiguous,
but rather because they are "essentially contested." Are Presidents--in good
faith or not--permitted to exploit or (more neutrally) use the fact that
these are essentially contested terms to alter the Congress' intent--if you asked
congresspersons one at a time whether the statute precludes race conscious
criteria from be used to implement the statute?
Robert Justin Lipkin
Professor of Law
Widener University School of Law
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