Academic journal article
By Kinkopf, Neil
The William and Mary Bill of Rights Journal , Vol. 16, No. 1
Over twenty years ago, Attorney General Edwin Meese touched off a contentious debate by proposing that judges take presidential signing statements into account when interpreting statutes. To facilitate this proposal, the Attorney General persuaded West Publishing Company to include presidential signing statements in the legislative history it published in the U.S. Code Congressional and Administrative News (U.S.C.C.A.N.).1 Attorney General Meese's position was fairly straightforward: the President is a significant actor in the legislative process. The Constitution authorizes the President to recommend to Congress "such Measures as he shall judge necessary and expethent."2 Moreover, a bill may not become a law unless it has been presented to the President and has been either approved by him or passed by Congress over the President's veto.3 Constitutional formalities aside, the President is a vitally important actor in the legislative process. The President exercises a great deal of agenda-setting power, especially when the President's party holds a majority in Congress. The President is in a position to offer incentives and disincentives to help persuade legislators to vote in favor of the President's legislative priorities. The President, as head ofthe executive branch, controls much of the information that forms the basis of legislative decisionmaking. In these and other ways, the President is extremely powerful in the legislative arena. Thus, if a court is attempting to determine the legislative intent behind a piece of legislation, the published views of the President would seem to be potentially probative. This innovation was largely developed by a young Justice Department attorney named Samuel Alito.4
The controversy that the Meese and Alito proposal generated soon died down. More recently, the Bush administration has followed a practice that has brought signing statements back to broad public attention, but for different reasons. The Bush administration has used signing statements to issue an unprecedented number of constitutional objections to new laws - 1042 by the end of 2006.5 While there is nothing new in a President using a signing statement to convey his constitutional objections to a provision of a bill that the President just signed into law, the sheer number of such constitutional objections issued by the Bush administration has made the practice noteworthy. There have been two major objections to this use of signing statements. First, the American Bar Association, among others, has condemned the practice on the grounds that the President is constitutionally obligated to veto a bill if the President believes that the bill contains an unconstitutional provision.6 Second, President Bush's signing statements have often been taken to express a refusal to be bound by provisions of law he believes to be unconstitutional.7 Some commentators take the position that the President is bound by the duty to take care that the laws be faithfully executed8 to execute every statute regardless of his view of the statute's constitutionality.9
In this Article, I will not address these controversies.10 Rather, I want to address the issue raised by the Meese proposal but in the specific context of the Bush administration's signing statements. Should the judiciary or anyone outside the executive branch11 use President Bush's signing statements12 as a guide to the meaning of statutes? The short answer is no.
One possible reason for a negative answer is that it is categorically improper to consider presidential signing statements as an element of legislative history. This argument was urged against the Meese proposal and takes two forms.13 First, formally, the President is not part of the legislature, and therefore, signing statements cannot be considered part of the legislative history.14 Second, pragmatically, signing statements are easily manipulated so as to reflect not so much the legislative intent as the preference of the President. …