Alito and presidential signing statements

Just yesterday I posted a note and some questions on Bush’s recent signing statement, in which he reinterprets a ban on torture as not meaning what it says. Now I ran across a Washington Post article from yesterday that notes that Associate Justice nominee Samuel Alito is a fan of signing statements.

In a memo from February 5, 1986, Alito outlined a strategy for

having the president routinely issue statements about the meaning of statutes when he signs them into law.

Such “interpretive signing statements” would be a significant departure from run-of-the-mill bill signing pronouncements, which are “often little more than a press release,” Alito wrote. The idea was to flag constitutional concerns and get courts to pay as much attention to the president’s take on a law as to “legislative intent.”

“Since the president’s approval is just as important as that of the House or Senate, it seems to follow that the president’s understanding of the bill should be just as important as that of Congress,” Alito wrote.

The quote from Alito’s memo is remarkable. While it is true that the President’s approval is “just as important as that of the House or Senate” inasmuch as all three institutions must consent to the same text of a bill (ignoring bills passed over a veto), it does not follow from that fact that the “president’s understanding of the bill should be just as important.” Congress consists of two chambers, numerous members, and committees. It debates alternate versions, strikes amendments, and replaces provisions. It thus has a lengthy record of why it approved one version and not others that were considered. However, under our constitution, the President is provided a take it or leave it option. If he does not like the bill, he can veto it, and thus re-start the transactional process, leading–maybe–to a new bill emerging from Congress that he’ll like better. But there is no such thing as sign light–taking this provision, blocking that, and reinterpreting others. Many presidential systems give the president such authority, thereby inserting the president more directly into the lawmaking process. But not ours. (I expand this idea a bit in a comment at Lawyers, Guns, and Money.)

The Post article quotes from an article by Phillip J. Cooper in the September, 2005, Presidential Studies Quarterly (now added to my must-read list), noting that the Bush administration

has very effectively expanded the scope and character of the signing statement not only to address specific provisions of legislation that the White House wishes to nullify, but also in an effort to significantly reposition and strengthen the powers of the presidency relative to the Congress.

This adds another item to the list of reasons why Alito should be given a very long and skeptical look by the US Senate in exercise of its constitutional power of advice and consent, two of which I have identified here previously:

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