Bench Memos

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Senator Specter’s Bill on Presidential Signing Statements


This afternoon Senator Specter introduced S. 3731, the self-styled “Presidential Signing Statements Act of 2006”.  Having reviewed the bill and Specter’s floor statement in support of it, I offer the following observations:


1.  One part of the bill provides that no court, state or federal, shall rely on a signing statement in determining the meaning of a law.  I don’t think that I have any objection to this principle, though it’s disputable whether it’s the business of Congress to tell courts—at least state courts—what legal materials they should rely on.  What I find more interesting is that the very argument that the bill, in its findings section, makes against such reliance applies with equal force to legislative history:  it is only the bill, passed by both houses of Congress and signed by the President, that is law.  So I don’t see how anyone can support this bill and also support judicial use of legislative history in construing the meaning of statutes.


2.  Another part of the bill purports to authorize federal courts to “declare the legality of any presidential signing statement, whether or not further relief is or could be sought.”  If any such declaration would not be an advisory opinion beyond the bounds of the “cases or controversies” limitation of Article III of the Constitution, it would seem to be an extremely rare instance.  It would be helpful if the supporters of the bill would point to any signing statement by President Bush that would create an Article III case or controversy.  I doubt very much that they could do it. 


Certainly the two examples cited in Specter’s floor statement—concerning the PATRIOT Act and the so-called McCain Amendment—don’t suffice.  According to Specter, the President’s signing statement on the PATRIOT Act stated that he could withhold certain information from Congress if he decided that disclosure would “impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive’s constitutional duties.”  Is a federal court somehow supposed to address in the abstract whether, and to what extent, that statement is lawful?  That’s an impossible task to undertake.  And how can anyone dispute in the abstract, much less expect to litigate, President Bush’s statement that he would interpret the McCain Amendment “in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power.”


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