There’s not much I can add to Ed Whelan’s cogent remarks (here, here, and here) on the decidedly non-cogent work of the ABA’s task force on presidential signing statements. But herewith a few thoughts on the subject.
1. The press is still slinging around dubious figures in its reporting on this story. In a story filed Tuesday morning by the AP’s Laurie Kellman, we are told that “Bush has issued at least 750 signing statements during his presidency.” As Ed notes, the ABA task force buried in a footnote the correction that this figure of 750 is a count of the number of discrete provisions to which the president has referred in his signing statements—not a count of the number of the statements themselves. The task force’s footnote says that the updated figure for individual provisions as of July 11 is now 807, and it cites one source, apparently the same source all reporters use for the highest figure possible: Christopher Kelley, a young visiting assistant professor of political science at Miami University in Ohio, where he also wrote his doctoral dissertation on signing statements. Kelley’s website says the figure is 805, not 807, but he adds the cautionary note that “this number is a rough approximation.” Kelley blames that on the president’s practice of “fudg[ing] the numbers,” but it is more accurate to say that the president sometimes makes interpretive statements about the duties of the executive branch that may, quite reasonably, be brought to bear on an indeterminate number of statutory provisions in a single bill. It isn’t the president’s duty to make scholars’ tabulations easier! The true total number of acts of Congress to which the president has attached signing statements of any kind, including perfectly innocuous applause noises, is 133. That’s according to a source the ABA task force itself cites, the American Presidency Project run by John Woolley and Gerhard Peters at UC-Santa Barbara. But 133 sounds a lot less alarming than 750.
2. According to the AP story linked above, Senator Specter has apparently greeted with enthusiasm the worst part of the ABA report, the legislative proposal that Ed discusses in Part III of his critique below. Even more than the FISA revision Specter has proposed, this legislation would invite the judiciary to issue advisory opinions where no case or controversy presents itself under Article III of the Constitution. A federal judiciary that recognized its own constitutional limitations would invalidate the legislation at the first opportunity. Hamdan reminded us that there are five justices who will refuse to recognize those limitations on the flimsiest pretext, so a proper judicial response can’t be taken for granted. Ed is right. It’s hypocritical for the ABA to call for the president to veto any bill that contains the slightest unconstitutional particle, then to propose that he sign a bill that contains obvious and grave constitutional defects. But it is no surprise that Arlen Specter, the senator most slavishly devoted to government by judiciary since Stephen A. Douglas, is for this crazy idea.
3. One interesting aspect of this latest foray of Specter’s into legislative draftsmanship is that, according to Reuters, he has enlisted Bruce Fein (an ABA task force member) to assist in the drafting. This shows exceedingly poor judgment on Specter’s part. On June 27, as I’ve noted before, he presided over a Senate Judiciary hearing in which testimony was taken from five witnesses on the subject of signing statements. Leaving aside Michelle Boardman of DOJ, who represented the administration’s view, the balance of the testimony was still in the administration’s favor, both quantitatively and qualitatively. And Fein’s testimony that day was—bluntness is called for here—conclusory, simplistic, ill-reasoned, and not quite competent for a lawyer of his knowledge and experience. For the chairman to be most impressed with Fein, of all the witnesses he heard that day, is a bad sign indeed. But then if he had been persuaded by the better witnesses that day, he wouldn’t be moving on this silly legislation at all.
4. Ramesh Ponnuru’s excellent article yesterday on the sleight-of-Hamdan pulled on Justice Stevens regarding the legislative history of the Detainee Treatment Act should underscore a point for any discussion of signing statements. Stevens thought it made a great deal of difference when a legislator’s statement was made about a bill’s meaning. Was it made before the final vote on the bill, or made afterward and then inserted into the record to appear like it was made earlier? It could make a difference. But as Ramesh pointed out, legislators often try to manipulate legislative history in order to manipulate judicial decision-making, which is a good reason to agree with Justice Scalia’s general position that legislative history ought not be relied upon. Yet if it is not to be abandoned, the practice of looking to legislative history ought to include looking to any applicable presidential signing statements as well, for interpretive purposes. They are always coterminous with the enactment of the legislation itself, and are issued in the open, in the full light of day. And they represent the views of the only public official who has two responsibilities with respect to statutes, a legislative one and an executive one—to decide whether they shall become law, and to say how he shall act to carry them out in harmony with all his other official responsibilities. It makes no sense to give President Bush’s understanding of the Detainee Treatment Act, for instance, less interpretive weight than the views (whenever given) of Senator Graham or Senator Levin.