Redstate

By Dana R Pico Comments (6) / Email this page » / Leave a comment »

On July 26th, I copied My Letter to Senator Specter to my site. Perhaps what I received is a general response to however many people wrote in to the Honorable Gentleman from Pennsylvania, but at least the response did address the issue.

Subject: Re: Senator Specter's bill to sue President Bush
Date: 8/28/2006 12:00:53 P.M. Eastern Standard Time
From: Senator_Specter@Specter.Senate.gov
Reply To:
To: editor@commonsensepoliticalthought.com

Dear Mr. Pico:

Thank you for contacting my office regarding the use of presidential signing statements and executive power. I appreciate your interest in this important matter and value your opinion.

As Chairman of the Senate Judiciary Committee, I have held a hearing exploring the use of presidential signing statements. It is widely agreed that there are legitimate uses for signing statements. For example, Presidents may use signing statements to instruct executive branch officials how to administer a law. They may also use them to explain to the public the likely effect of a law. And, there may be many other legitimate uses. However, the President cannot use a signing statement to rewrite the words of a statute nor can the President use a signing statement to selectively nullify those provisions he does not like.

To address the constitutional issues involved in the use of presidential signing statements, I have introduced a bill, The Presidential Signing Statements Act of 2006. This bill does not seek to limit the President's power and this bill does not seek to expand Congress's power. This bill simply seeks to safeguard our Constitution. It does so in three ways. First, it prevents the President from issuing a signing statement that alters the meaning of a statute by instructing federal and state courts not to rely on presidential signing statements in interpreting a statute. Second, it allows Congress to request judicial review of specific signing statements and determine the legality on a case by case basis. Third, it grants Congress the power to intervene in any Supreme Court case where the construction or constitutionality of a statute is in question and a signing statement for that statute was issued.

Thank you again for contacting me and expressing your views on this important issue. It is important to me to keep abreast of the views of my constituents, and I appreciate you offering me your opinion. Should you have any additional questions on this issue or another issue, please do not hesitate to contact my office or visit my website at www.specter.senate.gov .

Sincerely,
Arlen Specter

I have several problems with the Senator's response.

First, it prevents the President from issuing a signing statement that alters the meaning of a statute by instructing federal and state courts not to rely on presidential signing statements in interpreting a statute.

That is the entire purpose of the signing statements, to allow the courts to consider the president's intent in signing the bill, just as courts, when the text of a law is open to interpretation, consider the intent of the Congress, through its records and debates. The president is part of the legislative process, in that his consent is required for legislation to become law; his intentions ought to carry just as much weight as the intentions of the legislature.

Senator Specter's bill explicitly recognizes this, in Section 2, §6:

In some cases, such as Bowsher v. Synar, 478 U.S. 714, 719 n.1 (1986), the Supreme Court has relied on presidential signing statements as a source of authority, while in other cases, such as the recent military tribunals case, Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006), it has conspicuously declined to do so.

Mr Specter argued that:

(T)he President cannot use a signing statement to rewrite the words of a statute nor can the President use a signing statement to selectively nullify those provisions he does not like.

That is the way our liberal friends wish to view signing statements, but that isn't a power the president has claimed. As the senator has already noted, the courts can take the president's intentions into consideration in a case in court, but they also can decline to consider such signing statements.

In §7, the bill states:

As the Hamdan case demonstrates, the Justices of the Supreme Court appear to disagree with one another on the propriety of reliance on presidential signing statements in the interpretation of Federal law. The Supreme Court, with its nine competing perspectives and its jurisdictional restriction to cases and controversies, may remain unable to resolve this difference of opinion and establish a clear rule abjuring such reliance.

Oh, good grief! If that is the standard to be applied, we might as well get rid of the Supreme Court, because they rarely all agree on something, and as the recent case of Lawrence v Texas (2003) indicates, even a precedent as recent as Bowers v Hardwick, (1986) can be overturned when the composition of the Supreme Court changes.

Second, it allows Congress to request judicial review of specific signing statements and determine the legality on a case by case basis.

This is a complete change of the governing relationship between the three branches of government. The courts do not engage in advisory judgement; they handle only cases of actual dispute. If the Congress wishes to dispute a signing statement, it should follow our long established legal tradition of waiting until there is an actual dispute at law, and then either file suit or participate, amicus curiae, in such.

Section 5 is the operative part of the legislation:

Any court of the United States, upon the filing of an appropriate pleading by the United States Senate, through the Office of Senate Legal Counsel, and/or the United States House of Representatives, through the Office of General Counsel for the United States House of Representatives, may declare the legality of any presidential signing statement, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.

That is a complete departure from our common legal history, and treads upon the courts' determinations of legal standing. From the Department of Justice Civil Resource Manual:

The "case or controversy" clause of Article III of the Constitution imposes a minimal constitutional standing requirement on all litigants attempting to bring suit in federal court. In order to invoke the court's jurisdiction, the plaintiff must demonstrate, at an "irreducible minimum," that:
1. he/she has suffered a distinct and palpable injury as a result of the putatively illegal conduct of the defendant;
2. the injury is fairly traceable to the challenged conduct; and
3. it is likely to be redressed if the requested relief is granted.

In addition to the constitutional requirements of Article III, courts have developed a set of prudential considerations to limit standing in federal court to prevent a plaintiff "from adjudicating 'abstract questions of wide public significance' which amount to 'generalized grievances' pervasively shared and most appropriately addressed in the representative branches." Speculative claims that a proposed governmental action may result in injury to a plaintiff are insufficient to confer standing. The required injury must be both real and immediate, not conjectural or hypothetical.

Translation: the case must be a real one, not an advisory opinion, and the courts are not the proper venue for determining the outcome of political questions. Senator Specter's bill would reverse a sound legal separation of many years' history from such things.

Third, it grants Congress the power to intervene in any Supreme Court case where the construction or constitutionality of a statute is in question and a signing statement for that statute was issued.

The operative part of the bill is Section 6, amending Title 2, Chapter 9D, Sec. 288o(c):

Congressional Right To Submit Clarifying Resolution- In any suit referenced in subsection (a) (any action, suit, or proceeding in the Supreme Court of the United States, wherein the construction or constitutionality of any Act of Congress in which a presidential signing statement was issued), the full Congress may pass a concurrent resolution declaring its view of the proper interpretation of the Act of Congress at issue, clarifying Congress's intent, and/or clarifying Congress's findings of fact. If Congress does pass such a concurrent resolution, the Supreme Court shall permit the United States Congress, through the Office of Senate Legal Counsel, to submit that resolution into the record of the case as a matter of right.'.

A presidential signing statement is written, obviously, when the bill is signed into law. Senator Specter's bill would allow the Congress, by concurrent resolution, to submit its view of the meaning of the legislation after the legislation has been signed into law, possibly many years, and several Congresses after the law was passed.

That is an absolutely repugnant provision. Were it to become law, that would mean that the current Congress could make a statement, which "shall" be part of the Supreme Court's considerations, for a law signed by Andrew Jackson, Franklin Roosevelt or Richard Nixon, all of whom issued signing statements. The referenced §a does not require that the presidential signing statement be an issue at all, but merely that one had been issued. If this bill were passed and signed into law, any act to which a presidential signing statement was issued would be subject to revisionism of congressional intent by Congress, regardless of whether the signing statement was an issue, and regardless of how many years had passed!

It is certainly proper, when the legal interpretation of a statute is in question, for the courts to examine the intent of the legislature that passed the law; such is part of our legal tradition. And as the bill itself acknowledges, presidential signing statements have also been used by the courts, to determine the intent of the president who signed it into law. But the idea that one Congress could issue a statement as to the intent of a previous Congress is far more of a rewriting of the law than anyone has accused President Bush of having done.