Kevin Drum writes: “Of course, the whole point of legislative history is that it happens before a bill is passed, and is thus part of the compromise and debate that fashions the bill in the first place. Presidential signing statements, by contrast, are unilateral statements that are not debated—or even seen—by anyone before they pop out of the Oval Office like Athena from the forehead of Zeus” (emphasis his). But legislative history includes plenty of materials inserted after the fact, including congressional “statements” that weren’t actually made during the debate and which few congressmen will have seen before they vote.
It may be helpful to separate some of these issues. First, consider signing statements as attempts to influence the judicial interpretation of laws. If you consider both legislative histories and presidential statements as guides to the courts in their search for a law’s meaning, there is a rough parity. The legislative history provides evidence about what legislators thought they were voting for, and the signing statements provide evidence about what presidents thought they were letting become law. Now it may be that courts shouldn’t pay much attention to either type of evidence. But I just don’t see how signing statements are more nefarious than legislative histories.
Second, signing statements may also express a kind of presidential order to his subordinates about how a law should be interpreted. Again, this doesn’t strike me as bad in principle, since executive agents will usually need to make some decision about how to apply a law before any adjudication takes place.
Third, a signing statement may express a president’s view that a law can be interpreted in more than one way, and that he chooses to interpret it in the way that accords best with (his sense of) the Constitution. His interpretation of the statute or the Constitution in a particular signing statement may be wrong or even far-fetched, but if so the problem is more the incorrectness of the interpretation than its encasement in a signing statement. Also, as much as possible, the president should work with Congress to clear up any ambiguities beforehand.
Fourth, a signing statement may express a president’s belief that parts of the law he is signing are unconstitutional and his desire that his subordinates ignore those portions of the law. This strikes me as a trickier question. In general, if a president thinks that a bill violates the Constitution, he ought to veto it (as Glenn Reynolds writes). I am quite open to the possibility that the president has used signing statements in this way too often. He probably has, just as he hasn’t vetoed enough legislation. I just don’t think that this misuse of signing statements renders signing statements a bad idea in general. I don’t think Sam Alito, in endorsing signing statements in the 1980s, should be taken to have endorsed this use of them; nor do I think that anyone who thinks that courts should consider these statements as they seek to determine the meaning of a law should be taken to have endorsed this use of them.