Two Questions about [or Types of] "Signing Statements"

[RJLipkin at aol.com]

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 
not secret).
 



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 
it. 
 
        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?
 
Bobby

Robert Justin Lipkin
Professor of Law
Widener  University School of Law
Delaware
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