Wednesday, August 09, 2006

Article on Signing Statements

This article strikes me as the best and most sensible thing I've read on signing statements:
Presidential Signing Statements and Executive Power

Duke Law School
University of Chicago - Law School
July 2006

U of Chicago, Public Law Working Paper No. 133

* * *

The critics confuse the medium and the message. The signing statement is a tool for expressing a president’s view of a statute. The fact that presidents may use signing statements to advance erroneous views about their constitutional powers or the meaning of a statute is not grounds for criticizing the tool, just as policy disagreement about the use of the veto would not be grounds for criticizing the President’s veto power. Like all tools, the signing statement can be used for good or for ill. Confusion about this point is evident in the debate about whether Bush has challenged “too many” statutory provisions in signing statements, when the appropriate but neglected question is whether Bush’s views about executive power are justified.

* * * The signing statement is no more offensive than the memorandum, the
executive order, and the proclamation, and no one seems to want to ban them. Whatever one’s views of presidential power, the president has the right and perhaps even a constitutional obligation to state his opinion about the meaning of a statute and whether it violates the constitution. If it is more convenient to state this opinion in a signing statement than in some other type of document, that is hardly an objection. Indeed, stating his views about legislation at the earliest possible point increases transparency about the executive’s intentions, which enable those who are affected by the statute to adjust their behavior accordingly, and those who disagree with the President to mobilize resources to litigate or obtain a legislative revision.

If courts do give weight to signing statements, then critics of the signing statement should more appropriately complain about judicial than about presidential practice. But to the extent that courts legitimately defer or give weight to the executive’s position on some issue, and this is very common as we have discussed, then it seems that use of the signing statement should be encouraged rather than criticized. When the president expresses his view in advance rather than in litigation, there is less of a chance that the view is opportunistic or politically biased, as courts have recognized. The signing statement should thus be preferred to the litigation position.


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