Today’s Washington Post has one more item of interest, an article about Samuel Alito’s role in sketching, in 1986, the Reagan administration’s strategy of issuing presidential “interpretive signing statements” declaring the executive branch’s understanding of the bills the president signed into law. If Congress’s committee reports and published debates were going to be routinely used by courts in interpreting the meaning of statutes, Alito reasoned, then the president too should be able to influence such interpretation by formally stating his view of a law’s relationship to the Constitution. This would be particularly important, of course, in cases where a law might impinge on the executive power under the Constitution as the president understood it.
Alito’s idea caught on in the Reagan years, and has remained very popular with presidents ever since, especially with the current President Bush. And it’s interesting that this Post article should pick up today on this particular legacy of Alito’s executive branch work, since President Bush just issued an important signing statement on Friday regarding the McCain and Graham amendments to the defense appropriations bill. At the lefty legal blog “Balkinization,” Washington attorney Marty Lederman has a post on the signing statement that conveys the good news that the president is not taking the McCain amendment lying down, and may plan to make the most of the Graham amendment. Of course, Lederman doesn’t think this is good news, but it is.
The Post story notes that “courts have yet to give [presidential signing statements] much weight” since Alito proposed this strategy 20 years ago. That’s too bad. Justice Scalia makes a compelling case that the “legislative record” behind a statute is worse than useless, arguing that it is only the statute itself that can recommend itself to a court’s attention as a guide to its meaning. But if courts don’t follow Scalia’s view here–and they generally don’t–then they should give as much weight to the executive’s understanding as to the legislature’s.