Whilst buried by my Cato Supreme Court Review duties, I missed an opportunity to weigh in on the summer blog debate over presidential signing statements (i.e., the president's practice of announcing how a bill will be interpreted by the executive branch).
My general views track Marty Lederman, Walter Dellinger, et al.'s analysis in this post, which concludes that most common complaints about signing statements are overblown.
There is one problem that Lederman et al. don’t mention: the risk that courts will defer to signing statements when the law is ambiguous. Currently, the Court gives deference to agencies’ interpretation of ambiguous laws, under a narrow set of conditions set out in cases like United States v. Mead. In Mead, the Court underscored that judicial deference to the executive is controlled by Congress. Courts defer to the executive when the law is unclear based on a background assumption — a legal fiction, really — that this deference is what Congress wants when it passes an ambiguous law.
The Court has never decided whether the president deserves the same deference as the agencies under his control. Courts certainly won’t give any deference to presidential constitutional interpretations, just as they don’t give deference to the constitutional interpretations of agencies. But it's possible that future courts might defer to some nonconstitutional signing statements, and the explosion of signing statements in this administration suggests the president is perhaps making a bid for recognition of some such future deference. If that bid is successful, the president’s interpretation would act as a kind of "super-legislative" history, trumping competing legislative history by members of Congress when the text of a law is unclear.
Under Mead, Congress has the power to command courts not to defer to signing statements. Sen. Arlen Specter (R-Pa.) has introduced a bill to do just that and, if this were all the bill did, it would deserve the support of all who care about maintaining a balance of power between the president and Congress. Unfortunately, the bill is saddled with some additional provisions that are constitutionally problematic.
Here's what these additional portions of the bill say:
SEC. 5. CONGRESSIONAL STANDING TO OBTAIN DECLARATORY JUDGMENT.
Any court of the United States, upon the filing of an appropriate pleading by the United States Senate, through the Office of Senate Legal Counsel, and/or the United States House of Representatives, through the Office of General Counsel for the United States House of Representatives, may declare the legality of any presidential signing statement, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.
SEC. 6. CONGRESSIONAL RIGHT TO INTERVENE OR SUBMIT CLARIFYING RESOLUTION.
(a) Notice to Congress- In any action, suit, or proceeding in the Supreme Court of the United States, wherein the construction or constitutionality of any Act of Congress in which a presidential signing statement was issued, the Supreme Court shall certify such fact to the Office of Senate Legal Counsel and to the Office of General Counsel for the United States House of Representatives.
(b) Congressional Right To Intervene- In any suit referenced in subsection (a), the Supreme Court shall permit the United States Senate, through the Office of Senate Legal Counsel, and/or the United States House of Representatives, through the Office of General Counsel for the United States House of Representatives, to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of the Act's construction and/or constitutionality. The United States Senate and House of Representatives shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality.
(c) Congressional Right To Submit Clarifying Resolution- In any suit referenced in subsection (a), the full Congress may pass a concurrent resolution declaring its view of the proper interpretation of the Act of Congress at issue, clarifying Congress's intent, and/or clarifying Congress's findings of fact. If Congress does pass such a concurrent resolution, the Supreme Court shall permit the United States Congress, through the Office of Senate Legal Counsel, to submit that resolution into the record of the case as a matter of right.'.
Ironically, these provisions are far more constitutionally problematic than the signing statement itself. There are three ways to read these portions of the bill:
First, Specter's bill might be read to invite judicial deference to Congress's post-enactment interpretations, when introduced into the record by Senate leg counsel, as the word "clarifying" may suggest.
Second, perhaps the bill's provisions are protective, allowing Congress to defeat executive reliance on presidential signing statements very quickly, shutting off the window of opportunity created by lengthy delays in private litigation.
Or perhaps, finally, the bill is simply designed to allow Congress a say in court, leaving courts free to treat Congress's views as they wish, much as they can consider a law review article or amicus brief.
The first interpretation is clearly problematic under cases like INS v. Chadha and Bowsher v. Synar, which hold that Congress can’t assign itself, or its subsets, the power to issue controlling interpretations of laws it passes. Intepretation is an executive and judicial function, not a legislative one. Therefore, Congress cannot delegate to itself the power to issue authoritative interpretations of unclear laws. If it disagrees with the way a law is implemented, its recourse is to clarify its intent by passing a new law. Bowsher v. Synar, 478 U.S. 714, 733 (1986). A necessary corollary is that Congress's clarifying resolutions deserve no judicial deference.
Perhaps it might be argued that a bicameral resolution endorsing a signing statment would meet the requirements of bicameralism and presentment outlined in Article I, Section 7 of the Constitution, in effect amending the bill. But presentment envisons an order of decisionmaking in which Congress initiates a statutory amendment, presenting it, in turn, to the president — an order of proceeding that restrains the creation of new law, since it is more difficult for Congress to act swiftly.
The second and third interpretations are less clearly problematic as a matter of first principles, but they raise separation of powers problems under current caselaw. They arguably assign an executive power — the power to represent the general legal interests of the United States in the proper enforcement of the law, as opposed to concrete interests of a house or member of Congress in legislative rights and privileges — to Article I legal counsel who are removable entirely at the discretion of Congress, something Bowsher says is a no-no. Moreover, and relatedly, after Raines v. Byrd, it's hard to see how Congress can grant its own counsel "party" status in litigation without violating the case or controversy requirement of Article III, since Congress has no concrete stake other than its general interest, shared with the public, in the proper interpretation of the laws.
I'm sympathetic to the Specter bill's goal — to cut off the signing statement as a wedge for expanding executive power — but it's on strongest ground in its simple command to courts to ignore presidential signing statements.