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Slate's Jurisprudence: Presidential Signing Statements

ALEX CHADWICK, host:

This is DAY TO DAY. I'm Alex Chadwick.

MADELEINE BRAND, host:

And I'm Madeleine Brand. In a few minutes, a walk through the musical history of the South Bronx.

CHADWICK: First this, the Senate judiciary committee today voted to confirm Samuel Alito as the next Supreme Court justice. It was a party line vote and not a surprise. The nomination now moves to the full Senate.

One issue that did bother the Democrats who voted against Mr. Alito was the so-called presidential signing statement. These are documents in which presidents note their objections to bills that they are signing, and during the hearing, Senator Edward Kennedy asked Mr. Alito about his support of signing statements that President Reagan used to issue.

Senator Edward Kennedy (Democrat, Massachusetts): You urged the President to adopt what you describe as a novel proposal, to issue statements at undermining the courts' use of legislative history as a guide to the meaning of the law. You wrote these words: the President's understand of the bill should be just as important as that of Congress.

CHADWICK: So does the presidential signing statement really, actually carry legal weight, and should it? Dahlia Lithwick has been looking into these questions. She's the legal analyst for the online magazine, Slate, and for DAY TO DAY, and she joins us again now. Dahlia, welcome back, and first please explain what a presidential signing statement is and give a couple of recent examples.

Ms. DAHLIA LITHWICK (Legal Analyst, Slate): Well, it's interesting Alex, this is something that is very, very pervasive in the Bush presidency and yet has flown almost completely under the radar, partly because I think everyone thinks it's very complicated. It's not that complicated. It's just a statement by the President that's appended to a bill that he's signing into law, and you can think of it sort of as a note from Linus' mom, you know, that she used to put in his lunchbox. And it says, essentially, I dissent. I'm signing this law. I'm not going to veto it, but here's my constitutional interpretation of the law. Here are the parts of the law that I don't agree with, and an example is, you'll recall that the President, to much fanfare last December, said in fact, he was not going to veto John McCain's anti-torture legislation that passed so overwhelmingly and with bipartisan support.

CHADWICK: Yeah, I remember the debate about that one, and he didn't like it, but he went ahead with it anyway.

Ms. LITHWICK: Well, right, that was the part that happened with fanfare. What happened without fanfare, Alex, was on December 30th, late at night, right before the New Years' long weekend, the President went ahead and signed it but then he attached a little statement essentially nullifying the parts that applied to him. He said, the President is going to quote, "construe this bill in a manner consistent with the constitutional authority of the President to supervise a unitary executive," remember those words? And essentially he was saying, this law, this anti-torture law only applies to me except to the extent that it doesn't apply to me when I decide that it doesn't apply to me or my agents.

CHADWICK: Dahlia, haven't these statements been around for awhile, but they're only getting a lot of attention now. Why is that?

Ms. LITHWICK: Well, they've been around for awhile, but they haven't been used a whole lot. From the Monroe administration to the end of the Carter administration, apparently, a total of 75 statements ever. Now we're looking at the Bush administration, and one scholar is counting that within the first term of his presidency, President Bush issued over a hundred signing statements. In those signing statements, he took issue with 505 different provisions of law. So it's a question of just extent. He uses them over and over and over again to effectively nullify the legislation that he's ostensibly signing into law.

CHADWICK: But this wasn't a big issue - at least, I don't think it was, when Justice Roberts was just confirmed last October.

Ms. LITHWICK: That's right, Alex. It became an issue in the Alito confirmation hearings, not the Roberts hearings because Alito was part of a young cadre of lawyers in the 1980s Reagan administration who were pushing very, very hard back against congressional attempts to limit the President's powers, and a young attorney in 1986 called Sam Alito signed off on a memo that essentially said, hey, these signing statements, instead of making them into quote, what he said, "little more than a press release," we should give them some legal force. We should use them to sort of layout the President's interpretation of the law and then someday when the courts come to interpret them, the courts should give them equal weight to the congressional intent. It was a very bold strategy that he was putting forward, essentially saying the Presidents view of the constitutionality of this bill is as compelling as Congresses view.

CHADWICK: Is this issue going to wind up someday before the Supreme Court?

Ms. LITHWICK: Well, the courts have dealt with this to some degree, but I don't think they've dealt squarely with one of these situations. That's going to be, I think, something that the courts are going to have to grapple with, and it makes the prospect of an Alito confirmation all that much more fraught, Alex, because what it says is here's a guy who's going to be on the court who feels very, very strongly that the President is right and that the President's view of what a law means is as compelling as the view of the Congress that enacted it. That's quite a radical notion, and having people on the Court that hold that notion certainly will be very helpful, I think, to the President someday.

CHADWICK: Opinion and Analysis from Dahlia Lithwick. She covers the Supreme Court for the online magazine Slate and for DAY TO DAY. Dahlia, thank you again.

Ms. LITHWICK: My pleasure. Transcript provided by NPR, Copyright NPR.

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