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Professor Nicholas Quinn Rosenkranz
Senate Judiciary Committee Hearing:
June 27, 2006
Prepared Statement of
NICHOLAS QUINN ROSENKRANZ
I should say at the outset that I largely agree with the position put forth by Deputy Assistant Attorney General Michelle Boardman earlier this morning. As Ms. Boardman explained, Presidential signing statements are an appropriate means by which the President fulfills his constitutional duty to "take Care that the Laws be faithfully executed,"1 and this President's signing statements have not differed significantly from those of his recent predecessors.
Rather than reiterate Ms. Boardman's trenchant analysis, I will use my time in an attempt to separate out the various structural constitutional issues raised by signing statements. As you know, there has been significant confusion on this topic in the popular press; I hope that by disaggregating the various issues and discussing them dispassionately, we may at a minimum dispel some of the more hysterical assertions that have found their way into print.2
In addition, the Committee may be interested in possible legislative responses to the President's use of signing statements. While no proposals have, as yet, been introduced in the Senate, two Resolutions3 and a bill4 have been introduced in the House. Therefore, I will also address the constitutionality and the structural desirability of such measures.
I. Executive Interpretation
The most important and most common function of presidential signing statements is to announce--to the Executive Branch and to the public--the President's interpretation of the law.5 The propriety of such an announcement should be obvious. There is an oft-repeated canard that the President has no business interpreting federal statutes--his job is to execute the laws, and interpretation should be left to the courts.6 A moment's reflection reveals that this view is unsound. It is simply impossible, as a matter of logic, to execute a law without determining what it means.
A. Informing the Executive Branch of the President's Interpretation
Imagine, for example, a statute that imposes a tariff on the importation of "vegetables." Comes an eighteen-wheeler full of tomatoes. Is a tomato a vegetable? At the end of the day, maybe the Supreme Court will decide,7 but long before then, the executive branch is put to a choice: stop the truck at the border or let it through. There is no ducking the question; either choice implies an interpretation of the statute, an interpretation of the word "vegetable." And the President cannot simply flip a coin. He has a constitutional duty to "take Care that the Laws be faithfully executed,"8 and this faithfulness inherently and inevitably includes a good faith effort to determine what "the Laws" mean. In short, as the Supreme Court has explained, "[i]nterpreting a law enacted by Congress to implement the legislative mandate is the very essence of 'execution' of the law."9
Nor is the President obliged to leave the choice to individual Border Patrol agents. The Supreme Court has rightly said that the President can and should "supervise and guide [executive officers'] construction of the statutes under which they act in order to secure that unitary and uniform execution of the laws which Article II of the Constitution evidently contemplated in vesting general executive power in the President alone."10 And as Walter Dellinger, Assistant Attorney General for the Office of Legal Counsel under President Clinton, has explained, this is a "generally uncontroversial . . . function of presidential signing statements"--"to guide and direct executive officials in interpreting or administering a statute."11
B. Informing the Public of the President's Interpretation
Of course, the President need not make his interpretations public; he could quietly instruct the U.S. Border Patrol that a tomato is a vegetable and have done with it. But there are many good reasons why, in most circumstances, a public statement of interpretation is desirable. First, if the President's interpretation is public, then those who believe that his interpretation is erroneous can better and more quickly structure a challenge in court. Second, a public statement of interpretation reduces legal uncertainty. If people know the President's interpretation, they are better able to organize their affairs accordingly. Third, and perhaps most important, a public statement informs Congress of the President's interpretation, and if Congress disagrees, it may pass a bill clarifying the matter.
In short, in the United States, we have a strong preference for sunlight in government. Once it is clear that interpreting the law is essential to executing it, there can be no independent objection to the President making his interpretations public. This is the primary function of presidential signing statements, and President Clinton's Office of Legal Counsel was quite right to call this function "uncontroversial."12
II. The Canon of Constitutional Avoidance
The President interprets statutes in much the same way that courts do, with the same panoply of tools and strategies. His lawyers carefully study the text and structure of Acts of Congress,13 aided perhaps by dictionaries, linguistic treatises, and other tools of statutory interpretation. In addition, just like courts, they also apply well-established maxims of statutory interpretation, called canons.14
One canon in particular is of interest today. As Justice Holmes explained in 1927, "[T]he rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act."15 This is known as the canon of constitutional avoidance,16 and it "is followed out of respect for Congress, which we assume legislates in the light of constitutional limitations."17
This is the canon that the President is applying when he says, in signing statements, that he will construe a particular provision to be consistent with a particular constitutional command. Many of the presidential signing statements that have most exercised the press have taken this form,18 so it is crucial to understand what these statements do and do not say. These statements emphatically do not "reserve the right to disobey"19 the law. They do not "amount to partial vetoes."20 They do not "declare[ the President's] intention not to enforce anything he dislikes."21 And they do not declare that the statutes enacted by Congress are unconstitutional.
In fact, they declare exactly the opposite. As President Clinton's Office of Legal Counsel has explained, these sorts of signing statements are "analogous to the Supreme Court's practice of construing statutes, if possible, to avoid holding them unconstitutional . . . ."22 What these signing statements say, in effect, is that if an ambiguity appears on the face of the statute or becomes apparent in the course of execution, and if one possible meaning of the statute would render it unconstitutional, then the President will presume that Congress intended the other, constitutional meaning--and he will faithfully enforce the statute so understood.
Again, this amounts to nothing more than a straightforward application of a canon of statutory construction that was already well established when Justice Holmes elaborated it in 1927,23 a canon that finds its entire rationale in "a just respect for the legislature"24 and the faithfulness of Representatives and Senators to their constitutional oaths.25 If a statute is ambiguous, we--the President, the Court, the People--presume that Congress intended it to be constitutional.26
Now, it may be argued that this canon has grown too strong. After all, it is not used merely as a tie-breaker for ambiguous statutes. Even if dictionaries or other canons may point in the opposite direction, the canon of constitutional avoidance sometimes wins the day. As the Supreme Court explained in 1895, "every reasonable construction must be resorted to in order to save a statute from unconstitutionality,"27 and reasonable people may differ on what constitutes a reasonable construction.28 Moreover, the Supreme Court has held that "[a] statute must be construed, if possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score."29 This aspect of the doctrine is of more recent vintage30 and has been subject to quite compelling critique.31
For present purposes, though, it suffices to note that the President's application of this canon has been consistent with the interpretive doctrine espoused by the Court. If there is any plausible interpretation of a statute that would avoid a serious constitutional question, the President--like the Court--gives Congress the benefit of the doubt and adopts the constitutional interpretation.
III. Presidential Signing Statements in Court
An entirely separate issue is whether presidential signing statements are relevant to judicial interpretation of statutes. Courts sometimes use legislative history to resolve ambiguities in statutes32 (though this practice has been subject to withering criticism).33 The issue here is whether courts can and should put presidential signing statements to analogous use.
There are strong arguments on both sides of this question. On the one hand, one might say that judicial interpretation of statutes should seek to discover legislative intent, and the President is not a legislator. The President's power over bills is the power to "approve"34 or disapprove legislation; it is a simple, binary, up-or-down decision, subsequent to, and distinct from, the legislative process. Indeed, the Constitution makes clear that the veto power is not legislative power. It provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States,"35 not a Congress and a President; and it is "[t]he Congress," not the Congress plus the President, who "shall have Power . . . To make all Laws."36
On the other hand, one might say that this is an unduly formalistic view of the legislative process. In reality, the administration often drafts legislation, and even when it does not, the entire legislative machinery operates in the shadow of the President's veto power. On this view, the President's understanding of a bill as reflected in a signing statement is at least as important as the understanding of Congress reflected in legislative history. Moreover, any effort to glean the intent of Congress from legislative history is arguably quixotic: first, it is difficult to know how many Representatives and Senators agreed with any given portion of legislative history;37 and second, it is arguably incoherent to attempt to aggregate those individual intentions into a collective intent.38 By contrast, the President is just a single person, so his interpretive statement poses none of those problems. For this reason, the argument runs, presidential signing statements are more valuable because they are inherently reliable as an indication of presidential intent, whereas legislative history is less valuable because it is inherently unreliable as an indication of congressional intent.
My own view is the same as Justice Scalia's. I believe that the project of statutory interpretation is to discern "the original meaning of the text, not what the original draftsmen intended."39 And I believe that presidential signing statements--like legislative history--are of very little use in that project. In my view, absent instruction on this question from Congress,40 courts should rely on both equally--for the strength of their reasoning and nothing more.
IV. Legislative Responses
It follows from the analysis above that a general legislative response to the President's use of signing statements is probably unnecessary. Nevertheless, because at least three legislative proposals on this topic are pending in the House of Representatives, I shall address the balance of my testimony to the constitutionality and the wisdom of such proposals.
A. Requiring Congressional Notification
A Resolution that has been introduced in the House would provide:
If the President makes a determination not to carry out any duly enacted provision of a law (as indicated in a statement made by the President at the time of the enactment of the law or otherwise), not later than 10 days after the enactment of the law, the President shall submit a report to Congress informing Congress of the determination and including the President's reasons for making the determination, except that to the extent that the determination is based upon classified material, the President shall submit the report only to the congressional intelligence committees.41
Under this Resolution, legislation introduced in response to such a report would receive expedited consideration by the House of Representatives,42 and any Representative could require the General Counsel of the House to prepare "a report describing any legal action which may be brought to challenge the refusal by the President to carry out any duly enacted provision of the law."43
This Resolution is sensible. On very rare occasions, the President may determine that a statute is thoroughly unconstitutional, and that no saving construction is possible. Text, history, structure, and longstanding executive practice all demonstrate that in such circumstances, "the Constitution provides [the President] with the authority to decline to enforce" the law.44 This is, however, one of the President's most momentous powers, and when he exercises it, basic separation-of-powers principles suggest that the other branches should have notice and an opportunity to respond.45 The Resolution provides for notice to Congress, a fast-track legislative response, and the possible prospect of judicial review. All of this is commendable.
However, it must be noted that this Resolution would apply to only a tiny fraction of the President's "constitutional signing statements." As explained above, the canon of constitutional avoidance requires the President to construe statutes, if at all possible, to be consistent with the constitution. In the vast majority of cases--and in all the most controversial signing statements46 --the President implicitly declares his intention to apply the canon, choose the constitutional interpretation of the statute, and then faithfully execute the statute so interpreted. In none of these cases does the signing statement constitute "a determination not to carry out any duly enacted provision of a law,"47 and so in none of these cases would the House Resolution require him to file a report.
This is probably as it should be. In the vast run of cases in which a presidential signing statement is merely interpreting an Act of Congress, it is appropriate that no report should be required. Only in the very rare case in which the President expressly declines to enforce an Act of Congress should a report be necessary. In this sense, the House Resolution strikes the correct balance, and it may well be a worthy legislative initiative.
B. Limiting the Intra-Executive Branch Force of Signing Statements
Another bill that has been introduced in the House is far more problematic. It provides: "For purposes of construing or applying any Act enacted by the Congress, a Federal entity shall not take into consideration any statement made by the President contemporaneously with the President's signing of the bill or joint resolution that becomes such Act."48 It follows from the discussion above49 that this provision is almost certainly unconstitutional.
The term "Federal entity" includes executive officers and agencies, and the provision purports to forbid them from taking into account the President's signing statements when interpreting federal law. This the resolution cannot do, for the simple reason that it is the President's constitutional duty to "take Care that the Laws be faithfully executed."50 As the Supreme Court has explained, "[i]nterpreting a law enacted by Congress to implement the legislative mandate is the very essence of 'execution' of the law,"51 and the President "may properly supervise and guide [executive officers'] construction of the statutes under which they act in order to secure that unitary and uniform execution of the laws which Article II of the Constitution evidently contemplated in vesting general executive power in the President alone."52 The House Resolution would run afoul of this principle, by closing the ears of the Executive Branch to the President's contemporaneous53 interpretation of the law. For that reason alone, it would be unconstitutional.
C. Limiting Funds for Signing Statements
A different section of the same bill provides: "None of the funds made available to the Executive Office of the President, or to any Executive agency . . . from any source may be used to produce, publish, or disseminate any statement made by the President contemporaneously with the signing of any bill or joint resolution presented for signing by the President."54 This provision, too, is probably unconstitutional.
As discussed above, interpreting federal statutes--and ensuring uniform interpretation throughout the executive branch--is the very core of the President's duty to "take Care that the Laws be faithfully executed."55 And presidential signing statements are an essential tool in the performance of that duty. If Congress cannot require Executive officers to close their ears to presidential signing statements, then a fortiori it cannot forbid the President from making such statements in the first place.
Admittedly, the House Resolution does not purport to forbid signing statements simpliciter; it forbids only that any funds be used to produce, publish or disseminate them. And of course Congress does possess broad power over appropriations.56 But for Congress to use its power of the purse to impede a core executive function would raise serious constitutional concerns. If Congress lacks the power to forbid the President from issuing signing statements altogether (as it almost certainly does), then it arguably lacks the power to achieve the same result indirectly with a cunningly crafted spending restriction.57
At any rate, even if Congress concludes that it does have power to limit appropriations in this manner, the separation-of-powers implications are sufficiently serious that it would probably be wise to avoid a constitutional confrontation on this point unless absolutely necessary. This President's use of signing statements does not justify such a constitutionally contentious response.
D. Limiting the Judicial Use of Presidential Signing Statements
Once again, the House resolution provides: "For purposes of construing or applying any Act enacted by the Congress, a Federal entity shall not take into consideration any statement made by the President contemporaneously with the President's signing of the bill or joint resolution that becomes such Act."58 As discussed above, this provision is almost certainly unconstitutional to the extent that it applies to executive agencies and officers.59 But a federal court is also a "Federal entity," and to the extent that the provision applies to judicial interpretation, different constitutional issues arise. Can Congress forbid courts from using presidential signing statements as an aid in the interpretation of federal statutes?
This is a rich and difficult question, and to answer it, one must begin with the more general question: Can Congress tell courts what tools and methods to use when interpreting federal statutes? I considered this question at length in the Harvard Law Review four years ago,60 and I concluded that the answer is generally yes: Congress does have power to tell courts what methods to use when interpreting federal statutes. As I explained, "whatever judicial power exists over interpretive methodology must be common lawmaking power, which may be trumped by Congress."61 As a general matter, then, Congress has power to promulgate general rules of statutory interpretation, which would be binding on state and federal courts in the interpretation of federal law.
This is not the end of the analysis, however. Even if Congress generally has power over the interpretive methodology employed by courts, "[p]articular interpretive statutes . . . may raise more potent separation-of-powers objections."62 In other words, there is no general objection that mandating interpretive rules invades the judicial power, but the question remains whether this specific interpretive rule--courts shall not rely on presidential signing statements in interpreting acts of Congress--would impinge on the executive power.
I conclude that it probably would not. As explained above,63 the President's executive power inherently includes the power to interpret federal law in the first instance.64 Moreover, the President also has power to give interpretive instructions to executive officers.65 But it hardly follows that he has inherent and inalienable power to give such instructions to the courts. To be sure, courts often defer to executive agencies in their interpretations of federal statutes,66 and the President himself may be entitled to at least as much deference,67 but this is so only as long as Congress wishes to acquiesce in this rule.68 If Congress wished to forbid judicial deference to agency interpretations--or even presidential interpretations--of federal statutes, it could probably do so. A fortiori, Congress could forbid judicial reliance on one manifestation of presidential interpretation--the presidential signing statement.
The only question remaining is whether such a measure would be wise. My tentative answer is that it might be, but only as part of a comprehensive legislative scheme. I have argued at length that Congress has constitutional power69 over the tools and methods that courts use to interpret federal statutes, and that it should exercise this power. But a crucial aspect of my thesis is that Congress should approach this project comprehensively. As I explained:
The . . . most obvious advantage of a statutory interpretive regime is its potential for internal coherence. The Supreme Court is handicapped across this dimension by the Article III jurisdictional requirement of a case or controversy. Because the Court can only develop canons one by one, common law canons will be devised ad hoc, and will inevitably fail to form a coherent set. [By contrast,] [c]ongressionally adopted canons could form a true "regime"--a set of background interpretive principles with internal logical coherence.70
In conclusion, the recent brouhaha over presidential signing statements is largely unwarranted. Presidential signing statements are an appropriate means by which the President fulfills his constitutional duty to "take Care that the Laws be faithfully executed."71 And even the most controversial ones are, in truth, nothing more than the application of the well-settled canon of constitutional avoidance--a canon which, as Chief Justice John Marshall explained, was born of "a just respect for the legislature."72
I do not believe that any legislative response to the President's use of signing statements is necessarily called for. But if one is thought necessary, I would recommend something akin to H.J. Res. 89, which would simply require the President to notify Congress of any decision to decline to enforce a statute. In addition, I applaud Congress's interest in the proper judicial use of presidential signing statements in statutory interpretation, and I hope that this interest will blossom into a more comprehensive and general study of federal rules of statutory interpretation.
1- U.S. CONST. Art. II, § 3.