Thursday, January 18, 2007

An Introductory Lesson on Signing Statements

We're all familiar with Bush's controversial "signing statements," which have been decried as impinging on legislative power. The real issue here, however, is what they mean, or what they are worth. No one disputes -- Bush included -- that Congress has absolute legislative authority. Congress makes the laws. They become effective when signed by the President. No one disputes that, when interpretation of laws becomes necessary as a result of disputes over their application, the arbiter of this interpretation is the judiciary. No one disputes the fact that we all are bound by those laws, presidents, congresspeople and judges included. That's Civics 101.

Any law student will tell you that a judge's job in interpreting statutory language is fairly prescribed. Their are well-known canons of interpretation and construction which guide the procedure of such interpretation. First, for instance, if a statute is unambiguous, then it must simply be applied as written. If there is an ambiguity, the appropriate tool is to look to what's called "legislative history" which is material that reflects the intent of the law's drafters. Typically this material is found in hearing transcripts and other texts produced by the leglislature (Congress, in the case of federal laws). There is no canon of construction that looks to the intent of either of the other two branches -- executive or judicial -- to interpret the meaning of statutory language. Indeed, conservatives often point this out insofar as they decry "judicial activism" -- which is a judge interpreting a law according to his own view, rather than the view of the legislature who drafted the law. This is exactly the argument that informs us that the President's signing statements are worthless. They may not be considered by judges (or Justices) when they interpret statutes of disputed meaning. They are, in my view, worth no more than any other citizen's take on a statute that governs him or her. Indeed, if it makes folks feel better, everyone should start issuing "signing statements" as to how or why or when the law that was passed does not apply to them.

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