Presidential Signing Statements and Congressional Oversight

Two thousand and six was the year of the presidential signing statement. This constitutional cause celebre commenced on the penultimate day of 2005, when President George W. Bush signed a defense appropriations bill into law and simultaneously issued a signing statement cryptically declaring that the McCain Amendment - a provision in the bill prohibiting "cruel, inhuman, or degrading treatment" of any persons in U.S. custody anywhere1 - would be construed "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief ... [in order to] protect[] the American people from further terrorist attacks."2 What did this mean? In response to press inquiries, senior administration officials confirmed that the purpose of the language was to reserve the right to authorize harsher methods of interrogation in situations concerning national security.3 Thus, "never" became "maybe sometimes."4 Professor Marty Lederman quipped that the President's December 30th signing statement was "the commander-in-chief version of 'I had my fingers crossed.'"5 Senator McCain, among others, was not amused.6 Four months later, the signing statement again made front page news (and was the focus of myriad op-ed pieces) after Charlie Savage published an extended article in The Boston Globe chronicling President Bush's apparently unprecedented use of constitutional signing statements.7 In June, American Bar Association (ABA) President Michael Greco appointed a bipartisan, blue ribbon task force to review and report on the matter, which it in turn did near the end of July.8 In the meantime, the Senate Judiciary Committee held a hearing at which the administration's use of signing statements was attacked by Republican and Democratic senators alike.9 Then, in the immediate wake of the release of the ABA Task Force Report,10 the Chair of the Senate Judiciary Committee, Arlen Specter, took to the Senate floor to introduce a bill (Senate Bill 3731) entitled the Presidential Signing Statements Act of 2006.11 Both the ABA Task Force's recommendations and Senator Specter's bill had as their centerpiece congressional creation of a cause of action for a federal court' s declaratory judgment concerning the legal validity of future presidential signing statements.12 The ABA Task Force Report, crafted by a bipartisan committee, proved contentious in a most bipartisan manner, drawing fire from not only the administration's stalwart allies but from its critics as well.13 Although Senate Bill 3731 died with the 109th Congress, Senator Specter reintroduced a revised version ofthe bill during the 1 10th congressional session.14 But the debate to date has largely side-stepped the wisdom ofthe proposed resort to federal judicial declaration. Indeed, the successful push in August 2006 at the ABA' s annual meeting to amend the resolutions the Task Force proposed, prior to their adoption by the ABA's House of Delegates, left the fifth resolution undisturbed.15 That resolution called upon Congress to authorize suits for declaratory judgments on the legal validity of future signing statements.16 This Essay argues, however, that the proposed legislation would be ill-advised and counter-productive. Worse, it would exacerbate the underlying institutional infirmities that have brought us to the present precipice. The inclination to facilitate immediate resort to the judiciary for resolution of a dispute between the political branches about the President' s constitutional obligations is premised on an unidentified, unjustified (and in my view unjustifiable) assumption about the relative roles of Congress and the Court. Specifically, the fifth ABA resolution and Senate Bill 3731 share the premise that the Court, rather than Congress, is responsible for ensuring that the President remains subject to the rule of law.17 This premise has matters backwards. Congress has far greater competence and legitimacy than do the courts to undertake the awesome task of compelling presidential compliance with the Constitution and laws of the United States. …