Alito on Presidential Signing Statements

An article in the Washington Post describes an idea that Samuel Alito had when working for the Reagan administration:

As a young Justice Department lawyer, Supreme Court nominee Samuel A. Alito Jr. tried to help tip the balance of power between Congress and the White House a little more in favor of the executive branch.

In the 1980s, the Reagan administration, like other White Houses before and after, chafed at the reality that Congress's reach on the meaning of laws extends beyond the words of statutes passed on Capitol Hill. Judges may turn to the trail of statements lawmakers left behind in the Congressional Record when trying to glean the intent behind a law. The White House left no comparable record.

In a Feb. 5, 1986, draft memo, Alito, then deputy assistant attorney general in the Office of Legal Counsel, outlined a strategy for changing that. It laid out a case for having the president routinely issue statements about the meaning of statutes when he signs them into law.

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"Since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress," Alito wrote. He later added that "by forcing some rethinking by courts, scholars, and litigants, it may help to curb some of the prevalent abuses of legislative history."

The Reagan administration popularized the use of such statements and subsequent administrations continued the practice. (The courts have yet to give them much weight, though.)

President Bush has been especially fond of them, issuing at least 108 in his first term, according to presidential scholar Phillip J. Cooper of Portland State University in Oregon.

The Alito memo can be found here.

The Post is very misleading in giving the impression that Alito was the first person to "outline[] a strategy" for having Presidents issue signing statements. An academic article by Christopher Kelley offers examples starting with Monroe, and continuing through Jackson, Roosevelt, Truman, and Carter.

For example, one 1978 budgetary law included an amendment that prohibited "the use of funds under this Act to carry out [President Carter's] amnesty program" for Vietnam draft resisters. When Carter signed the law, he stated that he objected to the amendment "because it interfered with his pardon power, was an unconstitutional bill of attainder, and denied due process of the law." And as it turned out, "the Carter administration ignored the amendment and processed all of the [amnesty] applications." This decision was unreviewable in court, because no one had standing to complain.

Another good example is Roosevelt's statement on signing the Emergency Price Control Act of 1942:

Roosevelt objected to a section of the bill that was a 'protectionist measure for farmers' in the United States. Roosevelt stated: " . . . there is nothing contained therein which can be construed as a limitation upon the existing powers of governmental agencies . . . ." Roosevelt further demanded that the provision be removed and if the Congress did not remove it, he would treat it as a nullity. Roosevelt had solicited and received advice from the Dean of the Oregon Law School regarding what powers were afforded him during a time of war, particularly what rights did he have to ignore sections of laws he determined interfered with the war error. The Dean told him that "if you decide that a certain course of action is essential as a war measure, it supersedes congressional action."

Some might say that while previous Presidents issued signing statements (including some that indicated an intent to ignore the law in question), no one before Alito had thought that such signing statements should be used by courts when construing the law. But that's not true either: In United States v. Lovett, 328 U.S. 303 (1946), Congress included a provision in an appropriations act specifically naming three federal employees who should not be paid any further salaries, due to their "subversive activities." The Supreme Court held that the law was unconstitutional, and in so doing, cited President Roosevelt's signing statement: "The Senate yielded, as I have been forced to yield, to avoid delaying our conduct of the war. But I cannot so yield without placing on record my view that this provision is not only unwise and discriminatory, but unconstitutional."


The Post is also coy in referring to the practice of "subsequent administrations." Clinton actually used presidential signing statements (105 times) more often than Reagan (71 times), who is credited by the Post with having "popularized" the practice. Here's a summary from the Kelley article:

Even though President Clinton was blessed with unified party control when he came to office, his staff in the OLC early on was busy defending unique presidential powers, particularly the signing statement. * * *

In using the constitutional signing statement, Clinton was similar to the Bush administration in issuing most in the area of foreign policy (52%), precisely where presidential power is at its zenith. But even where the power of the presidency is clearest, President Clinton was still willing to use the constitutional signing statement from the high profile to the mundane, often to achieve what could not be achieved after veto bargaining had taken place. And like the Bush administration, President Clinton in at least three separate instances asked the OLC to issue opinions either buttressing the president's authority to decline to enforce provisions of a statute or to direct inferior officers on how to implement the terms of a constitutional signing statement . . . .

For the Clinton administration, the signing statement was an important cornerstone of presidential power, as outlined by Walter Dellinger in his 1993 OLC memo. It would become particularly important after the 1994 midterm elections when the Congress became Republican and more polarized.

The Kelley article also points out that Walter Dellinger wrote the following in a very interesting memo to Clinton's counsel Abner Mikva:

The President has enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency. Where the President believes that an enactment unconstitutionally limits his powers, he has the authority to defend his office and decline to abide by it, unless he is convinced that the Court would disagree with his assessment. If the President does not challenge such provisions (i.e., by refusing to execute them), there often will be no occasion for judicial consideration of their constitutionality; a policy of consistent Presidential enforcement of statutes limiting his power thus would deny the Supreme Court the opportunity to review the limitations and thereby would allow for unconstitutional restrictions on the President's authority.

Some legislative encroachments on executive authority, however, will not be justiciable or are for other reasons unlikely to be resolved in court. If resolution in the courts is unlikely and the President cannot look to a judicial determination, he must shoulder the responsibility of protecting the constitutional role of the presidency. This is usually true, for example, of provisions limiting the President's authority as Commander in Chief. Where it is not possible to construe such provisions constitutionally, the President has the authority to act on his understanding of the Constitution.

* * * [Discussion of the Supreme Court's Myers decision]

The Court in Myers can be seen to have implicitly vindicated the view that the President may refuse to comply with a statute that limits his constitutional powers if he believes it is unconstitutional.

Wow. I wonder what Dellinger thinks of the notion that President Bush can ignore FISA if he believes that it unconstitutionally limits his powers to defend the country.

Finally, the Post is not quite accurate in stating that the "courts have yet to give them [signing statements] much weight." Besides the United States v. Lovett decision discussed above, Walter Dellinger's first Office of Legal Counsel memo, as requested by the Clinton administration, pointed out several other examples:

It may therefore be appropriate for the President, when signing legislation, to explain what his (and Congress's) intention was in making the legislation law, particularly if the Administration has played a significant part in moving the legislation through Congress. And in fact several courts of appeals have relied on signing statements when construing legislation. See United States v. Story, 891 F.2d 988, 994 (2d Cir. 1989) (Newman, J.) ("though in some circumstances there is room for doubt as to the weight to be accorded a presidential signing statement in illuminating congressional intent, . . . President Reagan's views are significant here because the Executive Branch participated in the negotiation of the compromise legislation."); Berry v. Dep't of Justice, 733 F.2d 1343, 1349-50 (9th Cir. 1984) (citing President Johnson's signing statement on goals of Freedom of Information Act); Clifton D. Mayhew, Inc. v. Wirtz, 413 F.2d 658, 661-62 (4th Cir. 1969) (relying on President Truman's description in signing statement of proper legal standard to be used in Portal-to-Portal Act).

Of course, it might be the case that few decisions have even raised the issue of presidential signing statements; or that other decisions have actually held that such statements are irrelevant. I wonder if the Washington Post journalists have any idea.

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Addressing the Alito memo, Texas law professor Sandy Levinson writes:

[W]hat should courts do when faced with conflicting legislative and executive understandings, assuming that one doesn't ignore both a la Scalia. The answer, presumably, is to give priority to the President. If that's not what Alito means, it's hard to figure out exactly what he does mean to say. If one combines this rule with a version of James Bradley Thayer's "clear mistake rule" for exercising judicial review over presidential actions, then this is clearly a go-ahead for a basically unfettered President.

There are two things that are wrong with this analysis. First, Levinson does not specify why he thinks Alito believes in Thayer's "clear mistake rule" as to presidential interpretive statements. Second, now that we can read the memo for ourselves, there's no need to speculate about what Alito "presumably" meant. Alito never argued that one should give "priority" to the President. Quite the contrary. His memo listed five "primary obstacles" to the use of presidential signing statements, and the most significant was number 5:

Because presidential intent has been all but ignored in interpreting the meaning of statutes, the theoretical problems have not been explored. For example: In general, is presidential intent entitled to the same weight as legislative intent or is it of much less significance? . . . What happens when there is a clear conflict between the congressional and presidential understanding? Whose intent controls?

Alito was posing those questions, not answering them. And notably, later in the memo, Alito recommends, "We should concentrate on points of true ambiguity, rather than issuing interpretations that may seem to conflict with those of Congress."

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A lot of bloggers appear to think that it is obviously wrong -- too obvious to need an argument -- for a court to give any weight to the statutory interpretation offered by a President. The closest thing that I've seen to an argument is this blogger's point that the Constitution grants all "legislative power" to Congress, and the President can do nothing other than say yes or no.

Well, that's rather unconvincing. The President may not have "legislative" power, but he has the final word on whether a bill becomes law. So one might, with equal plausibility, say that because the President has the final word, the only thing that matters is not congressional intent, but what the President thought he was signing.

Imagine a situation that is something like this: The President vetoes or threatens to veto a bill, after which Congress rewrites it to conform to the President's desires. Then the President signs it along with a statement that reads something like this, "I believe this bill to have been rewritten so that it accomplishes X [or so that it doesn't ban Y, etc.]. On that interpretation, I hereby sign this bill."

Then, if the question arose in court as to whether the law accomplished X [or banned Y, etc.], why wouldn't that signing statement be as enlightening as any other item from the legislative history? If not for the President's interpretation, as set out in the signing statement, that bill would never have become law in the first place.

For some concrete examples, why wouldn't the following presidential signing statements be relevant to indicate what the President thought he was signing?

Andrew Jackson, on May 30, 1830:

Gentlemen: I have approved and signed the bill entitled "An act making appropriations for examinations and surveys, and also for certain works of internal improvement," but as the phraseology of the section which appropriates the sum of $8,000 for the road from Detroit to Chicago may be construed to authorize the application of the appropriation for the continuance of the road beyond the limits of the Territory of Michigan, I desire to be understood as having approved this bill with the understanding that the road authorized by this section is not to be extended beyond the limits of the said Territory.

Well, ok, that one is not over a monumental issue, but it is generally viewed as one of the first of the genre.

Here's a more important one: On signing the Antiterrorism and Effective Death Penalty Act of 1996, Clinton issued a signing statement that contained a lengthy section on how the courts should interpret various provisions of that bill:

Some have expressed the concern that two provisions of this important bill could be interpreted in a manner that would undercut meaningful Federal habeas corpus review. I have signed this bill because I am confident that the Federal courts will interpret these provisions to preserve independent review of Federal legal claims and the bedrock constitutional principle of an independent judiciary.

Section 104(3) provides that a Federal district court may not issue a writ of habeas corpus with respect to any claim adjudicated on the merits in State court unless the decision reached was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court. Some have suggested that this provision will limit the authority of the Federal courts to bring their own independent judgment to bear on questions of law and mixed questions of law and fact that come before them on habeas corpus.

In the great 1803 case of Marbury v. Madison, Chief Justice John Marshall explained for the Supreme Court that "[i]t is emphatically the province and duty of the judicial department to say what the law is." Section 104(3) would be subject to serious constitutional challenge if it were read to preclude the Federal courts from making an independent determination about "what the law is" in cases within their jurisdiction. I expect that the courts, following their usual practice of construing ambiguous statutes to avoid constitutional problems, will read section 104 to permit independent Federal court review of constitutional claims based on the Supreme Court's interpretation of the Constitution and Federal laws.

Section 104(4) limits evidentiary hearings in Federal habeas corpus cases when "the applicant has failed to develop the factual basis of a claim in State court proceedings." If this provision were read to deny litigants a meaningful opportunity to prove the facts necessary to vindicate Federal rights, it would raise serious constitutional questions. I do not read it that way. The provision applies to situations in which "the applicant has failed to develop the factual basis" of his or her claim. Therefore, section 104(4) is not triggered when some factor that is not fairly attributable to the applicant prevented evidence from being developed in State court.

Preserving the Federal courts' authority to hear evidence and decide questions of law has implications that go far beyond the issue of prisoners' rights. Our constitutional ideal of a limited government that must respect individual freedom has been a practical reality because independent Federal courts have the power "to say what the law is" and to apply the law to the cases before them. I have signed this bill on the understanding that the courts can and will interpret these provisions of section 104 in accordance with this ideal.

If a President signs a bill on the understanding that it has a particular meaning, why isn't that at least as relevant as the fact that a congressional report contains a few citations that were inserted by a congressional staffer and that no one else (in all likelihood) ever read? (That's what Scalia was complaining about in this opinion.)