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August 2, 2006

ABA Examining Signing Statements

CNN reports that the ABA is taking the position that President Bush's "signing statements" -- statements made when a bill is enacted into law that express his "interpretation" or view of the enactment -- violate separation of powers.  Signing statements of course are relatively new, but Bush was not the first President to execute them.  However, I've read that Bush has signed bills accompanied by such signing statements more than all the other presidents -- combined.

Their impact on statutory interpretation is, to say the least, unclear.  Although I haven't exhaustively looked, I only found one student note on the topic.  Kristy L. Carroll, Comment, Whose Is It Anyway?: Why and How Courts Should Use Presidential Signing Statements When Interpreting Federal Statutes, 46 CATH. U. L. REV. 475, 476-77 (1997) (tracing history of signing statements from 1830 to 1997).

That lack of attention may be changing.  In the Hamdan case, Justice Scalia refered to the President's signing statement in castigating the majority for relying upon statements made during the legislative debates over the bill at issue in that case.  For a textualist like Scalia, this seems quite an odd move:  to Scalia, what the text says -- and not what a legislator thought it says -- is what counts.  Why, therefore, does the signing statement matter?  It raises the interesting question noted by the student -- whose statute is it?  An intentionalist would likely say: it's Congress's, and reject the signing statement.  A purposivist might be more willing to look at it, but a textualist like Scalia should, I would think, ignore it.


August 2, 2006 in Current Affairs | Permalink


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a long time ago - 10 - 20 years ago - I read an article in the National Law Journal, or something like that, which criticized the use of signing statements in interpreting statutes. It persuaded me, but it didn't seem like a particularly important issue at the time. One of the arguments in the article was based on a contract analysis -- the statute is an offer by Congress, and the president can accept or reject the offer, but he can't use a signing statement to reject the offer and the "accept" his counteroffer, because the legislature has no opportunity to reject the counter-offer. Or something like that.

Posted by: Davis | Aug 10, 2006 3:57:17 PM

Good luck with the new blog.

Posted by: anonymous | Aug 11, 2006 6:10:19 AM

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