Bill Signing Statements – A Hurricane in a Teapot
Recent commentators, including my own erstwhile colleague, have noted President Bush’s appendage to bills signed into law, recently called “signing statements,” some of which written by President Bush are critical of the scope or reach of the law. Terry noted the ABA’s report on it. Terry’s comment was picked up by a prestigious national commentator.
However, regarding the whole controversy, I’m still searching for the materiality of the dispute. Can anyone cite a single instance in which the President or the Executive Branch violated a law based on a “bill signing statement?” Can anyone point to a single court that accepted the “bill signing statement” as part of the legislative history? Can anyone point to a single court that accepted the “bill signing statement” as the lawful basis for interpretation of the statute so passed, much less a constitutional challenge?
A “bill signing statement” is no more than a historical artifact in most instances, and it has never been used, successfully or otherwise, as determinative of policy insofar as I have ever heard or been made aware. They are printed in the Federal Register so they are publicly available for all eternity and can be debated by anyone that wants to do so.
This is hardly different than when Congressmen, regardless of partisan disposition, include criticisms of proposed statutes in the legislative history during hearings held on the statute, as part of floor debate, or simply as a unilateral insertion by a congressman in the Congressional Record. Lastly, at the most, it is a forum used by a President under the protection of the First Amendment, and has no more weight than a press release from the White House.
The practice has expanded under the present Bush presidency but it was not invented in this administration. Thus, why didn’t the American Bar Association leap onto the practice before now, or when it was used in prior administrations? I resigned from the American Bar Association for exactly this sort of nonsense, coupled with its then express advocacy of abortion upon demand and other forms of murder, without real consultation with the paying ABA membership. The ABA is once again wasting its resources and everyone’s time. In this instance, there is simply no issue.
There have been a number of “reservations” expressed by the nations chief executives to new laws. President Nixon used “impoundments” to try and control the spending of what he viewed was a runaway Congress. Congress would pass a law and a budget and Nixon simply refused to spend some or all of the money Congress allocated. It gave him a form of line item veto he used in an effort to control federal deficits. Also, because it was not an actual “veto,” it avoided Congressional overrides. My recollection is that Arthur Schlesinger’s book, The Imperial Presidency, had an excellent summary of “impoundments, but I no longer seem to have a copy of it at hand, and would hope to be corrected if I have erred in this citation, but my recollections of “impoundments” is, I am sure, correct. What the present Presidency is doing is a far cry from that and impoundments actually did raise a real spectre regarding separation of powers that the mere talk included in a “signing statement” simply does not. It would be interesting to compare the ABA’s “report” on impoundments, if there was one, to its report on “signing statements,” and see which contains the most lurid language. A political fingerprint might have been left behind, and for the ABA, that would not be surprising or beneath them.
Moreover, federal agencies of the Executive Branch are given deference by courts in the interpretation of the statutes of which they are responsible for enforcement. However, deference does not mean abdication, and courts are not hesitant about overriding federal agency statutory interpretation that is wrong or twisted. A presidential “signing statement” is no more important than a federal agency interpretation and would not cause any greater furor during enforcement of a statute.
Any academician responsibly reviewing the impact of “signing statements” would have to compare them to “impoundments,” federal agency statutory interpretation, and White House press releases to determine if there is in the differences any difference.
The ABA is angry because the Bush Administration gives little credence to ABA certifications of the qualifications of presidential federal judicial appointments. The ABA is a private lobbying organization and an inferior one, in my view, to others, such as the American Center for Law & Justice. If the ACLJ, or a similar organization, were to develop a “membership” of attorneys in addition to its donative supporters, it would one day, I am sure, rival the ABA as spokesman for the nations attorneys. Thus, the ABA has no special right to be acknowledged on judicial appointments or anything.
The ABA has a large paying membership, 410,000 according to the AP’s Gina Holland, largely because law firms and corporations pay the dues for employed attorneys. Although, 410,000 is not much more than 10% of the nations attorneys and indicates the ABA’s slipping influence in the legal community. The membership would shrivel if attorneys had to pay the dues themselves, much less if attorneys took a hard look at the advocacy of the organization. I resigned from the ABA while I was an employee attorney and had a law firm paying the dues for me, simply because the ABA’s stance on moral issues, in my view, was inconsistent and in too many cases, contrary to my moral beliefs. It is unlikely the report noted by Terry was any more representative of the feelings of the paying ABA membership.
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