Patterico's Pontifications

1/9/2006

Presidents Have to Um, Well, Sign Laws

Filed under: Dog Trainer — Patterico @ 6:24 am



L.A. Times editors write this morning:

In 1986, when he served in the White House Office of Legal Counsel, Alito wrote a memo arguing that the president should issue “interpretive signing statements” when signing legislation. Courts have long looked at “legislative intent” when necessary to clarify the meaning of a statute, but in his memo, Alito argued that a “president’s understanding of a bill should be just as important as that of Congress.” Senators should ask Alito exactly what he meant by this. On its face, the assertion threatens to undermine the fundamental constitutional principle that it is for Congress to write the laws and for the executive to, well, execute them.

It’s the “well” in that sentence that gets under my skin. It’s right up there with “um” on the annoyance scale.

How about the “fundamental constitutional principle” that a bill doesn’t become law unless the president, um, well, signs it?

Geniuses, these guys are not.

A ban on “um” and “well” in editorials!

34 Responses to “Presidents Have to Um, Well, Sign Laws”

  1. “Um” and “well” are used as means to to condescend to the perceived lesser intellectual capabilities of their readers. It’s just more of the same smug, “I’m just so much smarter than you” MSM attitude. I call it the “lecture mode” whereupon they deem to reveal some secret “truth” to we unwashed, backwards rubes out in the hinterlands.

    Unfortunately for them, “Joe Sixpack” sees right through their smug, self-satisfied, condescending twittery. It’s not an accident that their readership, and viewership in the case of the electronic media, is abandoning them for Fox News, the internet and talk radio.

    Doubly unfortunately, when in the “lecture mode” they are often either completely wrong or at the very least chosing to ignore inconventient facts. In short, though they claim to love “nuance”, their argument belies their claim. Your citation above is an example, as is the constant “reminder” that overturning Roe is equivalent to declaring abortion illegal.

    Finally, the “lecture mode” is really just another form of begging the question. It is simply circular reasoning by stealth.

    Harry Arthur (40c0a6)

  2. Well if I were guesstimating, I’d say the L.A. Times was just following the New York Times’ lead:

    At Hearings, Democrats Plan to Call Critics of Alito’s Integrity but taking a slightly different stance on their slander…

    russ (769b82)

  3. The President doesn’t draft legislation–he either permits it to become law or doesn’t. Presidential intent should remain, as it currently is, absolutely irrelevant to a statute’s meaning.

    Geek, Esq. (5dd2be)

  4. To further demonstrate the idiocy of the “Presidential intent” meme, should we also have statements of “Presidential intent” for:

    Bills that become law without the president signing or vetoing them; or

    Vetoes; or

    Pocket Vetoes?

    Nutty idea.

    Geek, Esq. (5dd2be)

  5. Article I.

    Section 1
    All legislative Powers herein granted shall be vested in a Congress of the
    United States, which shall consist of a Senate and House of Representatives.

    Alito apparently never read the first 25 words of the Constitution.

    Geek, Esq. (5dd2be)

  6. Alito is, unlike Scalia, happy to use legislative history and other such detritus.

    Signing statements, insofar as they are reflective of the executive understanding of what the law he’s signing is supposed to do (which, given that the executive branch must then go out and use the law, matters) fits well within that field, and is no less BS than using what some congressman said to an empty chamber to divine the meaning of the statute.

    Stop being such a chump.

    Angry Clam (fa7fff)

  7. Presidents have no legislative powers. The President may not draft, amend, or enact legislation. Period. End of story.

    We properly consider the intent only of those who actually enact the legislation.

    Simple logic.

    Geek, Esq. (5dd2be)

  8. You’re living in a world where the non-delegation principle actually has effect, Geek. In the real world, the executive has substantial legislative powers through delegation and the administrative state’s gap-filling authority.

    Angry Clam (fa7fff)

  9. The executive has powers to interpret and carry out legislative mandates, to the degree permitted by Congress, but no more.

    The President has never, and will never, have the ability to change the meaning of a statute that passes both Houses of Congress.

    And, if I’m not mistaken, the line-item veto was explicitly found unconstitutional.

    Geek, Esq. (5dd2be)

  10. But, here’s the thing, Geek: what is the meaning of the statute?

    Is it the plain language? Should we break out the canons of interpretation? Which ones, in that event? Should we look at the rantings of one random congressman, even when he wasn’t the author? Why him, rather than the ten others? How about news reports describing what the bill does? Given the lack of controls, or even relevance of all this crappola, signing statements seem to be one more piece in sorting out what, exactly, was meant when the President used his constitutional authority to sign the bill, and what his understanding was of the bill that he authorized rather than vetoed.

    Courts look to the President’s veto letters when interpreting statutes amended or passed via override, and this is little different.

    Furthermore, you have yet to address the point about the function of the executive regulatory state and that lawmaking’s expansive and binding authority.

    Angry Clam (fa7fff)

  11. The executive’s power to enforce and implement statutes is wholly different than the ability to determine the statute’s meaning. The executive may not vary from the legislature’s intent, which controls.

    The veto power is merely the ability to allow a bill as enacted to become law, or to not permit it to become so. The President does not change, alter, or have any say in what that statute actually means–that is a matter exclusively reserved for the Congress and the Courts, respectively.

    A Presidential signing statement has no more authority than a law review article.

    Reliance on legislative history is a very dubious practice–as Judge Leventhal said, it’s like looking over a crowd and picking out your friends.

    However, that’s at least a little defensible since the people quoted have the Constitutional authority to enact legislation.

    Geek, Esq. (5dd2be)

  12. As a collective whole Congress does. The individual congressman’s opinion doesn’t matter one iota.

    And you’re still selling short the vast area of regulatory/enforcement powers the executive has.

    And the whole argument is over what in god’s name the legislature intended, and how we’re to figure that out, not “president says one thing, law itself says another” like the old line-item veto days.

    Angry Clam (fa7fff)

  13. The Congressman gets to vote on the legislation–the President doesn’t.

    Presidential intent in permitting a bill to become law isn’t evidence of Congressional intent.

    I’m not selling the Executive’s regulatory and enforcement powers short–just noting that it is bound in whole part by what Congress intended. If Congress intends to delegate some latitude to the Executive in its regulatory enforcement power, so be it.

    To put it another way–Presidential intent in signing legislation becomes irrelevant, legally and practically, once that administration leaves office.

    Geek, Esq. (5dd2be)

  14. Clam, Clam , Clam – It’s perfectly simple. The intent of one out of 535 members of the legislative branch is very important, even if that person’s vote was immaterial in the passage of the legislation in question. On the other hand, the intent of the person who must approve of and sign the legislation “before it become[s] a Law” (which means that he can prevent it from becoming law despite the wishes of two thirds minus one of the members of either house) is “irrelevant.” Why is that so hard to understand?

    eddie haskell (51058c)

  15. The Congressman gets to vote on the legislation–the President doesn’t.

    The President gets to sign or veto the legislation-the Congressman doesn’t. Your point (other than the one on your head)?

    Look, I understand the theory that the law is what it is, not what the President thought he was signing. By that same logic, the law is what the Congress as a body voted on, not what any individual Congressman thought he was personally voting for, particularly in cases where there were enough votes for the bill to have passed without him. But to argue that one body’s “intent” is relevant to its meaning while the other’s is not is unsupportable. Either we care what Congress and the President thought they were doing, or we don’t. To pay attention to one while ignoring the other is nonsensical. If anything, the fact that the President had no power to draft the legislation is a reason to pay more attention to the President’s intent than that of any particular Congressman, or even enough Congressmen to constitute the needed majority. We don’t construe contracts of adhesion in favor of the drafting party, but in favor of the party that did not have the opportunity to draft them, and instead had to simply accept or reject them wholesale. [No, I’m not saying we should do that with statutes, merely pointing out that it would be less retarded than what Geek and the L.A. Times propose here.]

    To put it another way–Presidential intent in signing legislation becomes irrelevant, legally and practically, once that administration leaves office.

    No more or less relevant than that of any Congressman after he leaves office. The only situation where the President’s intent should be considered any less relevant than Congress’s is where Congress overrides a veto. Then, of course the President’s intent is just as irrelevant as that of any minority Congressman who opposed the bill.

    Xrlq (5ffe06)

  16. The Congressman gets to vote on the legislation–the President doesn’t.

    Of course he does. He either “votes” to approve the bill based on his understanding of what that implies for the country (including politically), or he vetoes the bill, again, based on his understanding of the implications. With respect to the veto, he offsets at the very least, 2/3 of the congress with his single “vote.”

    As for intent and interpretation, it’s entirely up to the executive as to how the law is “executed”. I would argue that the executive’s interpretation of the requirements of the law are not only relevant but perhaps even paramount. Should there arise a difference of opinion between the executive and the legislature as to the manner of execution, the judicial “referees” that difference.

    Secondly, I don’t believe Alito is suggesting that the executive’s view is solely determinant, only that it is a view worthy of consideration along with that of the legislature. At the very least the executive plays an important role in the enactment of a law if only from the balance of powers viewpoint.

    I must therefore respectfully submit that Alito and Clam are not off base in their assertion that we ought to consider the viewpoint of the executive in attempting to discern “original intent.”

    Harry Arthur (40c0a6)

  17. I’d like to make sure the record is clear that I think both “legislative history” and presidential signing statements are worthless and should not be used in a court to determine a statute’s meaning.

    That said, I fail to see how, given one, the other is so wholly out of bounds as to betray an utter lack of constitutional understanding on Judge Alito’s part.

    Were I in his shoes, and faced with a Court that loves legislative history, I too might urge the President to come out with signing statements. After all, they can’t hurt, and you never know if one judge might be like “hey, that makes sense.”

    Angry Clam (fa7fff)

  18. The Geek wrote:

    Presidents have no legislative powers. The President may not draft, amend, or enact legislation. Period. End of story.

    Uhhh, the President cannot submit draft legislation? That’s a new one on me! He has to find at least one congressman to introduce his draft legislation, but he certainly can draft it. More, he can propose amendments, again, through a congressman. The Geekster makes it sound like the president has no ability to draft or influence legislation before it hits his desk.

    The Geek also wrote:

    The Congressman gets to vote on the legislation–the President doesn’t.

    Boy, is that one wrong! The president cannot force passage of any bill which does not have majority support in both Houses, but he has a negative vote that outweighs those of 66 senators and 217 representatives.

    Dana (3e4784)

  19. Read the first 25 words of the Constitution, folks.

    Article I.

    Section 1
    All legislative Powers herein granted shall be vested in a Congress of the
    United States, which shall consist of a Senate and House of Representatives.

    This is not ambiguous language. Congress enacts legislation. The Executive has the ability to object, or to not object.

    But the Executive has ZERO right to determine the actual content of that legislation. That is a plenary power of Congress.

    Geek, Esq. (5dd2be)

  20. Clam, Clam , Clam – It’s perfectly simple. The intent of one out of 535 members of the legislative branch is very important, even if that person’s vote was immaterial in the passage of the legislation in question. On the other hand, the intent of the person who must approve of and sign the legislation “before it become[s] a Law” (which means that he can prevent it from becoming law despite the wishes of two thirds minus one of the members of either house) is “irrelevant.” Why is that so hard to understand?

    Read the first 25 words of the Constition, Eddie.

    Geek, Esq. (5dd2be)

  21. Constition

    Er, make that “the first 25 words of the Constitution.”

    Geek, Esq. (5dd2be)

  22. The first 25 words of the Constitution (well, the first 25 words of Article I, at any rate) don’t do what you say, though.

    “The legislative power” is a very amorphous thing. You’re arguing for a hardline, no one else can ever say what anything means rule.

    Better tell that to the judiciary.

    Angry Clam (fa7fff)

  23. Geek – You acknowledge that the president “can object or not object.” That is, he can cast a vote that more than equals the votes of 66 Senators and/or 217 Representatives. But, somehow, the reasons for or intent behind the president’s decision to “object or not object” is meaningless to you, but the intent or understanding of a person who has 1/66 or 1/217 of the power to “object or not object” to legislation is invaluable.

    BTW – I’m with Clam on the value of ANYONE’s intent, but to exalt Congressional intent alone while ignoring the other participant in the process is illogical and is not required by the “first 25 words.”

    eddie haskell (51058c)

  24. Clam, hopefully I did not misrepresent your opinion. I certainly didn’t intend to.

    I’m not sure where I stand on these “legislative history” statements. I would suggest, however, that for a judge to try to understand the intent of the “law makers”, both legislative and executive, rather than impose his or her notions, or even worse, those of other nations, on a particular law is at the very least an honorable attempt at judicial restraint.

    Harry Arthur (40c0a6)

  25. Those, um, cheap rhetorical devices

    Patterico castigates the Los Angeles Times for a chunk of verbal effluvia set in type: “On its face, the assertion threatens to undermine the fundamental constitutional principle that it is…

    dustbury.com (5a1bcd)

  26. No worries. I just wanted to make it clear where I stood vs. defending what I see as a fairly reasonable opinion of Alito’s given the circumstances in which it was issued.

    The problem with legislative history, and why it is actually a means to get around judicial restraint, since any random congressman can enter garbage into the record, and then it is simply a matter of choosing what you want. Plus, it allows the nebulous “purpose of the statute” to rear its ugly head and extend the statute beyond what it textually covers.

    Angry Clam (fa7fff)

  27. Ban “um” and “well” and op/ed writers will just start using “Hello??” instead.

    Matt (60aca6)

  28. The president cannot force passage of any bill which does not have majority support in both Houses, but he has a negative vote that outweighs those of 66 senators and 217 representatives.

    Quibble: That should be “66 senators and 289 representatives.” The two-thirds thing.

    McGehee (5664e1)

  29. Maybe I’m just being grumpy right now, but at times I get frustrated because you attorneys argue all around what should be done according to the law rather than taking it head on. Don’t get me wrong – your discussion here in the comments is fascinating and I do appreciate it.

    But what should be done in general about presidential power, if anything? This is the central question that you are really pussyfooting all around. Also, the partisanship comes through on both sides no matter how much you try to hide behind constitutional interpretation or intellectualism. (That’s one thing that makes it entertaining, actually.)

    Of course I’m biased, but it is beyond me why we need to give a president more power. A single person can go stone cold mad without warning (and no, I’m not implying Bush has – for you conclusion jumpers out there). Why not have an honest discussion as opposed to the façade?

    Like I say, all too often “philosophy is the giving of bad reasons for what you were going to believe anyway.” I believe that also applies to some discussions of law.

    Just sayin’.

    Psyberian (1cf529)

  30. Well, there are obvious practical effects to such debates, but you ought to keep in mind that finding the right answer extends beyond a single political administration, and, if we’re being serious about it being the correct understanding of the constitutional system, beyond administrations that we agree with.

    So, anyway, what should be done about presidential power? Not much. Remember the Roberts hearings, where the senators kept whining about how the Court ought to stop the President from doing anything and everything, but allow Congress to do whatever it wants (the expansive commerce clause demands)? The senators (and the representatives) need to get off their collective asses and stand up to the executive on their own terms- checks and balances doesn’t, and shouldn’t, always mean “run to the courts for help.” Basically, the Congress is acting like a little kid being pushed around on the playground who runs and tells on the other kid rather than just giving him a swift kick to the nuts.

    I agree, fundamentally, with the rule announced in Goldwater v. Carter (background: Barry was suing Carter for breaking a bunch of treaties with Taiwan in favor of Red China. Court told him to get bent and go make Congress do something about it)- the courts will not step in to political fights, even over the reach of the other branches’ powers, between the Congress and the Executive unless all room for political negotiation and compromise has broken down.

    That hasn’t happened in our current situation. Far from it- odds are that Congress would, if pushed to a vote, approve of all the President’s actions.

    So, I don’t think that I’m being a shill for the Bush Administration. I think that this is the proper way that the branches interact- I was pretty pleased with the way that the GOP congress handled the Clinton presidency, including cornering him on such things as welfare reform. I think that people whining about Executive overreach and demanding the courts do something about it are pissed because Congress, when the votes come in, agrees with the President.

    Win some elections, don’t file a lawsuit.

    Angry Clam (fa7fff)

  31. McGehee humbles me:

    The president cannot force passage of any bill which does not have majority support in both Houses, but he has a negative vote that outweighs those of 66 senators and 217 representatives.

    Quibble: That should be “66 senators and 289 representatives.” The two-thirds thing.

    I’m so ashamed, and humbly beg forgiveness. [-o

    Dana (a071ac)

  32. The Clamster wrote:

    So, anyway, what should be done about presidential power? Not much. Remember the Roberts hearings, where the senators kept whining about how the Court ought to stop the President from doing anything and everything, but allow Congress to do whatever it wants (the expansive commerce clause demands)? The senators (and the representatives) need to get off their collective asses and stand up to the executive on their own terms- checks and balances doesn’t, and shouldn’t, always mean “run to the courts for help.” Basically, the Congress is acting like a little kid being pushed around on the playground who runs and tells on the other kid rather than just giving him a swift kick to the nuts.

    I agree, fundamentally, with the rule announced in Goldwater v. Carter (background: Barry was suing Carter for breaking a bunch of treaties with Taiwan in favor of Red China. Court told him to get bent and go make Congress do something about it)- the courts will not step in to political fights, even over the reach of the other branches’ powers, between the Congress and the Executive unless all room for political negotiation and compromise has broken down.

    That hasn’t happened in our current situation. Far from it- odds are that Congress would, if pushed to a vote, approve of all the President’s actions.

    The editors of National Review suggested, as I related on my own site, that if the Congress is concerned that we might be mistreating prisoners, the Congress ought to pass legislation specifying what actually constitutes “torture” and mistreatment. Similarly, if the Congress wishes to more closely limit the President’s power in wiretapping or security or whatever, the Congress ought to get off its collective posterior and write specific legislation defining the limits.

    The simple fact is that most legislation calls upon the executive branch to enforce some particular thing, but leaves a great many of the particulars up to the legislative branch; we shouldn’t be surprised when the executive branch interprets a loosely written law in a fashion that some congressmen might not have intended.

    Dana (a071ac)

  33. “How about the “fundamental constitutional principle” that a bill doesn’t become law unless the president, um, well, signs it?”

    But signing is different than making a signing statement. The textualists like Scalia make some good arguments against uses of legislators statements. I think these arguments are at their peak against presidential statements. Alito is no textualist.

    actus (85218a)

  34. I know this is late, but I’ve been sick lately. Anyway, thank you for the comment Clam (# 30). You make some good points as always, but since this cold is making me even more weak minded than usual, I won’t even attempt a rebuttal right now. :0)

    Psyberian (1cf529)


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