Academic journal article Harvard Law Review

Context-Sensitive Deference to Presidential Signing Statements

Academic journal article Harvard Law Review

Context-Sensitive Deference to Presidential Signing Statements

Article excerpt

Presidential signing statements have made headlines over the past year, beginning when a 1986 statement penned by then-Deputy Assistant Attorney General Samuel A. Alito, Jr. was published and scrutinized during the 2006 Senate hearings on his nomination to the Supreme Court. (1) At the end of June 2006, the much awaited Supreme Court decision in Hamdan v. Rumsfeld (2) ignored a Bush Administration signing statement asserting that the Court lacked jurisdiction over the case. The conflict escalated in late July 2006, when the American Bar Association (ABA) released a report declaring that some of President George W. Bush's signing statements threaten the rule of law and urging Congress to act to curb such abuses. (3) Senator Arlen Specter responded by introducing a bill, currently pending before the Senate Judiciary Committee, that would prohibit any state or federal court from relying on a presidential signing statement "as a source of authority" (4) and would grant Congress standing to seek declaratory judgments on the legality of specific signing statements. (5) A similar bill is pending before the Committee on Government Reform in the House of Representatives. (6)

The arguments in favor of judicial reliance on signing statements in statutory interpretation have not changed greatly since now-Justice Alito wrote his memorandum twenty years ago. The original and primary justification offered by proponents for their use is that these statements are part of "legislative" history because a bill must be signed by the President before it can become law. (7) By this logic, "the President's understanding of [a] bill should be just as important as that of Congress." (8) This justification has been the subject of ongoing scholarly debate, with each administration drawing fire from politically opposed commentators for its use of signing statements. (9) The second justification for the use of signing statements in statutory interpretation was portended by Alito: "Is [a signing statement] entitled to the deference comparable to that customarily given to administrative interpretations?" (10) This question of deference to signing statements has increased in relevance with the rise of the administrative state over the past two decades and with the increasing importance of the Chevron (11) doctrine in modern statutory interpretation. (12)

This Note takes a step back from both the endorsement of signing statements offered in Alito's memorandum and the ABA's condemnation of such statements. This Note argues instead that presidential signing statements should be examined as simply another species of statutory interpretation. Courts should adopt a flexible approach to the amount of deference accorded signing statements by applying doctrinal tools developed in the areas of statutory interpretation and administrative law and by extending such deference only to the extent that these statements promote deliberation, transparency, and comparative institutional competency.

Specifically, this Note argues that the two most common rationales for judicial reliance on statutory interpretation in signing statements are incorrect: a signing statement offering the President's interpretation of a statute should not be considered part of the legislative history of that statute, and it should not receive Chevron deference as though it were an administrative interpretation. Part I discusses the history of presidential signing statements, including their uses, justifications, and consideration by the judiciary. Part II challenges the assertion that a signing statement is part of a bill's legislative history, arguing that because a signing statement is issued after the opportunity for meaningful dialogue and debate about the statute's meaning has passed, it is instead comparable to post-enactment legislative history and should receive little deference from the judiciary. Part III analogizes signing statements to agency enforcement guidelines and policy statements, which were specifically prohibited from receiving Chevron deference in United States v. …

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