Under the Radar - Does Scalia's Dissent in <em>Hamdan</em> Boost the Validity of Presidential Signing Statements?

July 31, 2006

By KJ Meyer Editor-at-Large
While most legal observers were paying attention to the profound implications that the majority opinion in Hamdan v. Rumsfeld might have on the Bush Administration's War on Terror, Justice Scalia's dissent may have quietly forged some new ground as well in boosting the clout of the executive in constitutional interpretation. In his dissent, Scalia cites to a statement issued by President Bush on Dec. 30, 2005 setting forth the administration's position that that Detainee Treatment Act essentially stripped courts of the power to hear "existing" detainee lawsuits.
By citing to this signing statement (and including its language in a footnote), Justice Scalia has laid the groundwork for adding presidential signing statements to the list of resources used in interpreting constitutional law. While signing statements have historically been used merely as administrative directives, and have made only minor appearances in passing in cases before, the process of establishing their validity and giving them weight equal to that of legislative history in now under way.

Presidential signing statements, which have traditionally provided general commentary on bills being signed into law, identify provisions of the legislation with which the president has concerns and can (1) provide the president's interpretation of the language of the law, (2) announce constitutional limits on the implementation of some of its provisions, or (3) indicate directions to executive branch officials as to how to administer the new law in an acceptable manner.
While signing statements have been used for much of our nation's history, the historically limited use and role of signing statements changed dynamically during the middle of the Reagan administration. In 1986, then-Attorney General Edwin Meese entered into an arrangement with the West Publishing Company to have Presidential signing statements published for the first time in the U.S. Code Congressional and Administrative News, the standard collection of legislative history. Attorney General Meese explained the purpose of the project as follows:

To make sure that the President's own understanding of what's in a bill is the same . . . or is given consideration at the time of statutory construction later on by a court, we have now arranged with the West Publishing Company that the presidential statement on the signing of a bill will accompany the legislative history from Congress so that all can be available to the court for future construction of what that statute really means.

Moreover, now - Justice Samuel Alito, who served in the Meese Justice Department, and while there championed giving presidential signing statements equal weight as legislative history in constitutional interpretation, sits on the Supreme Court. In this capacity he has lent further credence to their use by signing on to Justice Scalia's opinion.
All told, the number of signing statements issued up through the Clinton administration totaled 322. Conversely, President George W. Bush issued 435 signing statements in his first term alone. Through the use of presidential signing statements, the Bush Administration has quietly claimed the authority to disregard congressionally enacted laws more than 750 times since he took office. In doing so, he has asserted his constitutional prerogative to set aside any statute which he deems to conflict with his interpretation of the Constitution. In a Boston Globe interview, Bruce Fein, a deputy attorney general in the Reagan administration, said that ''This is an attempt by the president to have the final word on his own constitutional powers, which eliminates the checks and balances that keep the country a democracy,".
This is a distinct shift of constitutional power and may alter not only the traditional spheres of separation of powers, but circumvent the institution of judicial review by the Court. As Professor Neil Kinkopf points out, "the Supreme Court has repeatedly recognized, the Take Care Clause - which provides that the President 'shall take care that the Laws be faithfully executed' - establishes that the President does not hold the royal prerogative of a dispensing power, which is the power to dispense with or suspend the execution of the laws. The Take Care Clause, then, makes plain that the President is duty-bound to enforce all the laws, whether he agrees with them or not." Now the legal stepping stones are being put into place to cement the validity of signing statements into the future of constitutional interpretation. While failing to garner a majority in the Hamdan decision, two other members of the court, Justices Thomas and Alito, signed on to Scalia's dissent giving the use of signing statements as interpretive tools additional support. And although not a majority opinion, it may give lower federal courts justification to begin citing signing statements as well. Thus, the map sketched out two decades ago by Attorney General Edwin Meese, Justice Alito and others in the Reagan Administration's Justice Department, to use signing statements to influence constitutional interpretation in favor of the executive, is now finally beginning to see its emergence in the courts.
The aggressive use of these signing statements, which had largely gone unnoticed during the first few years of the Bush Administration, has begun encountering more resistance as of late, in large part as a result of reporting by the Boston Globe's Charlie Savage reporting on the issue. Just this week the ABA has released a task force report on presidential signing statements and the separation of powers specifically asking courts not to defer addressing the validity of signing statements in constitutional interpretation under the political question doctrine, a foreseeable problem. Separately Senator Arlen Specter (R-PA), Chairman of the Judiciary Committee, has introduced legislation in the Senate to "give the Congress standing to take into the federal courts situations where the President has issued such signing statements and to authorize the Congress to undertake judicial review of those signing statements with the view to having the President's acts declared unconstitutional."