Ramesh’s excellent article from this morning got me thinking about these executive signing statements. On first blush, it’s hard to understand what the big deal is. Personally, I’m a fan of Justice Scalia’s view that legislative history is to be avoided in when judges construe statutes. I don’t see why a presidential statement at signing should be any different.
But neither do I see it as any worse. That legislative history should be avoided is a minority view on the bench. If we’re going to have judges giving weight to what members of congress professed to think they were enacting, why should what the president thought he was signing be thought any less significant? And if the Supreme Court is going to look to European courts when it interprets the Constitution, why should anyone be troubled if it looks to what the President of the United States said when it interprets some piece of legislation POTUS signed.
But on the more general question of whether these signing statements are a good thing, I wonder. At the end of the day, what really matters is the words of the statute itself. If they are clear, all the posturing around their enactment is legally irrelevant. From a policy standpoint, though, it seems to me that these signing statements have a dangerous potential to encourage presidents to sign legislation that they shouldn’t sign.
President Bush, for example, should not have signed a bill with the McCain amendment (on cruel, inhuman and degrading treatment) in it. That law – like McCain/Feingold, another law POTUS signed knowing he shouldn’t have – is bad. I thought it was strange that a lot of people worried about the McCain amendment seemed cheered by the signing statement, which indicated that POTUS believed he had authority to ignore the law in an appropriate case.
But that’s a delusion. It may have made POTUS feel better about signing a bad bill – and thus made it easier for him to do so. But it’s the words of the law, not the words of the signing statement, that have effect. Seems to me that at least when the point of a signing statement is to attempt to undercut the force of a law, a president should be issuing a veto, not a signing statement.