Alito on signing statements

The increasing use of presidential signing statements began in the Reagan Administration and continued into the administrations that followed.  The primary historical use of signing statements was to point out constitutional problems and direct the executive branch in how to deal with them.  So has there been a great increase in unconstitutional legislation?  Quite possibly, but there is another reason why the use of signing statements has grown.

When interpreting the law, courts frequently go back to its legislative history to get a sense of its authors’ intent. This leads to an imbalance between the branches of government, because the legislative and judicial branches both get their say regarding the meaning of the law, but not the executive branch. To address that imbalance, Samuel Alito (then Deputy Assistant Attorney General) proposed in a 1986 memo (pdf) to expand the use of signing statements:

Our primary objective is to ensure that Presidential signing statements assume their rightful place in the interpretation of legislation. In the past, Presidents have issued signing statements when presented with bills raising constitutional problems. [Office of Legal Counsel] has played a role in this process, and the present proposal would not substantively alter that process.

The novelty of the proposal previously discussed by this Group is the suggestion that Presidential signing statements be used to address questions of interpretation. Under the Constitution, a bill becomes law only when passed by both houses of Congress and signed by the President (or enacted over his veto). Since the President’s approval is just as important as that of the House or Senate, it seems to follow that the President’s understanding of the bill should be just as important as that of Congress. Yet in interpreting statutes, both courts and litigants (including lawyers in the Executive branch) invariably speak of “legislative” or “congressional” intent. Rarely if ever do courts or litigants inquire into the President’s intent. Why is this so?

Part of the reason undoubtedly is that Presidents, unlike Congress, do not customarily comment on their understanding of bills. Congress churns out great masses of legislative history bearing on its intent–committee reports, floor debates, hearings. Presidents have traditionally created nothing comparable. Presidents have seldom explained in any depth or detail how they interpreted the bills they have signed. Presidential approval is usually accompanied by a statement that is often little more than a press release. From the perspective of the Executive Branch, the issuance of interpretive signing statements would have two chief advantages. First, it would increase the power of the Executive to shape the law. Second, by forcing some rethinking by courts, scholars, and litigants, it may help to curb some of the prevalent abuses of legislative history.

Alito accurately predicted that Congress would not take kindly to the proposal:

It seems likely that our new type of signing statement will not be warmly welcomed by Congress. The novelty of the procedure and the potential increase of presidential power are two factors that may account for this anticipated reaction. In addition, and perhaps most important, Congress is likely to resent the fact that the President will get in the last word on questions of interpretation.

I’m not aware of an occasion in which an expanded signing statement has been tested in court, so it’s too soon to say whether Alito’s experiment has succeeded.

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