In late August 1985, Steven Calabresi and John Harrison sent a memo to Attorney General Edwin Meese recommending that the DOJ push to have Presidential signing statements reconceptualized as legislative history so that courts would give them weight in interpreting statutes. (“The President’s signing statement represents the basis on which a necessary participant gave his consent to legislation. It is even better than a committee report because it represents an entire branch’s view of the matter.”) They motivated their recommendation as a means of correcting “[t]he abuse of legislative history [through] which legislative power is usurped by activist courts, idealogically [sic] motivated congressional staffers and lobbying groups.”
The Calabresi-Harrison memo prompted a rash of correspondence, on September 3, 1985, from T. Kenneth Cribb, the Counselor to the Attorney General. To the Litigation Strategy Working Group he sent a memo seeking clarification of “the conceptual issues associated with the use of signing statements as guides to legislative interpretation.” From the Office of Legal Policy he sought a memo setting “forth the issues associated with the use of signing statements as aids to interpretation.” And to the Office of Legal Counsel he sent a memo asking, in effect, what are signing statements and where can I find them? (“I would very much appreciate it if you could take a moment to provide a brief description of the existing system for the drafting of signing statements, explaining our role and that of the White House Counsel … Also, do you know of anyone other than OLC who ever relies on signing statements? Are they accessible through any of the normal tools of legal research?”)
The response from OLC was relatively uninteresting. OLP was more interesting. In addition to recommending “the preparation of an article on the use of presidential signing statements, for publication … in an abbreviated form in a popular forum such as … the National Law Journal,”OLP replied that “we have been unable to find any caselaw, articles, or treatises which discuss this precise issue. Indeed, virtually the only reference to the use of statements made by the executive in approving legislation is [found in the context of gubernatorial signing statements].” Then, stepping onto, in effect, terra nova, it adumbrated three separate theoretical arguments in favor of according Presidential signing statements interpretive weight.
- “The Constitution requires as an essential step in the enactment of legislation that bills which have passed both houses of Congress be presented to the President for signature or for veto. Accordingly, one can adopt [the] position that a President’s signing statement – like a veto message for legislation that is subsequently amended – is, in fact, a part of the legislative history and should be relied upon in assessing legislative intent.”
- The memo also drew an analogy between Presidential interpretations and agency interpretations. “[T]here is widespread judicial reliance upon the interpretations and application of ambiguous statutes by administrative agencies, departmental heads, and other executive branch officials charged with the duty of administering and enforcing the legislation.” Likewise, then, the chief executive branch official’s interpretation deserves deference. (The analogy is most forceful if one accepts the Unitary Executive, one implication of which is that agencies – located, as they are, in the Executive Branch – are agents of the President. In that case, an agency interpretation just is a Presidential interpretation. The Reagan Administration was stocked with “Unitarians” – they were behind the Executive Order requiring all agencies to submit new regulations for review by the Office of Management and Budget.)
- Finally – a particularly bullshitty argument (or, more precisely, set of loosely related argument-fragments) – they urged that “[i]f a court adopts the “meaning of the statute” rather than the “intent of Congress” standard in interpreting ambiguous legislation, the relevance of a Presidential signing statement increases dramatically. The critical difference is that … the “meaning of the statute” test focuses upon an objective analysis of what other [sic] perceive it to mean – and that public perception would be influenced by the President’s interpretation of the statute. As such, the court is really asking what a reasonable person would infer from reading the statute in question. In this context, the interpretation of the legislation by the Chief Executive In a signing statement would be clearly relevant and significant in assessing the objective meaning of the statute, since it represents the first opportunity for construction of the legislation outside the walls of Congress.”
The Litigation Strategy Working Group’s reply was notable for two reasons. First, it essentially outlined the course of the entire scholarly debate that Meese’s having West Publishing categorize signing statements as legislative history precipitated. Second, it was written by Samuel Alito. Alito flagged the following theoretical problems.
- “In general, is presidential intent entitled to the same weight as legislative intent or is it of much less significance. As previously noted, presidential approval of legislation is generally just as important as congressional approval. Moreover, the President frequently proposes legislation. On the other hand, Congress has the opportunity to shape the bills that are presented to the President, and the President’s role at that point is limited to approving or disapproving. For this reason, some may argue that only Congressional intent matters for purposes of interpretation.” [The scholarly debate on this topic basically goes as follows: The President is usually a vital member of the enacting coalition, so from that point of view his intention deserves weight. But the Constitution explicitly confines his role to approving legislation or vetoing it – the actual act of lawmaking is, by the express terms of Article I, vested in Congress. Further, Congress haggles; it has no response to the President’s signature. So signing statements aren’t reliable expressions of a legislative intent so much as they are articulations of the executive’s legislative aspirations. But, on the other hand, the President is a repeat player in the legislative process, so he’s not going to screw Congress.]
- “If presidential intent is of little or no significance when inconsistent with congressional intent, what role is there for presidential intent? Is it entitled to the deference comparable to that customarily given to administrative interpretations?” [The debate: yes because the Unitary Executive versus no because there are major institutional differences between the President and Agencies.]
One final point is that the DOJ took OLP’s recommendation in September 1986. It had Douglas Kmiec reply, in the National Law Journal, to an op-ed by two law clerks criticizing the use of signing statements as legislative history. But OLP’s “we have been unable to find any caselaw, articles, or treatises which discuss this precise issue” became “[The suggestion that interpretive signing statements are in derogation of separation of powers doctrine] ignores the long history of presidential signing statements, misperceives their purpose, and fundamentally misunderstands the Constitution.” And no mention made of the ambition that started it all: curtailing the power of “activist courts [and] idealogically [sic] motivated congressional staffers” in favor of the President!
Anyway, I think the episode is kind of interesting as a window into the politico-legal policymaking process, and as a look at some still-active legal actors in a different context. (Calabresi is a Northwestern Professor; Harrison’s at UVA; Alito’s on the Supreme Court; Kmiec’s at Pepperdine, and was in the news most recently when he tried to reconcile his pro-life stance with his support for Obama.)
Update: A few good sources in case anybody’s that interested:
1. A packet containing most of the correspondence to which I adverted. [Everything except Alito’s memo & Kmiec’s op-ed. Alito’s memo is also on the web. I was only able to find Kmiec’s op-ed on microfilm, using which is the most Jason Bourne-like thing I’ll ever do.]
2. Alito’s memo.
3. Good broader historical article on signing statements.
4. Interesting, if ultimately unsuccessful, attempt to justify according signing statements interpretive weight. I particularly recommend section IV, which starts at page 32.