The President’s Intent – Presidential Signing Statements

The President’s Intent – Presidential Signing Statements


When people disagree on what a law means,
it falls to the courts to determine how a law will be interpreted. Key to that
determination is what is known as intent what the Congress meant for the law to
do when it was passed. For most of U.S. history, only the intent of Congress was
considered by courts. However, President Ronald Reagan ordered the publication of
signing statements, giving his interpretation of laws. It was the
President’s desire that courts take into account his intent. The question of
intent figures prominently in a dispute between President Bush and Congress over
a signing statement concerning the treatment of prisoners. Members of
Congress point to a law passed in the fall of 2005 called the
McCain Anti-Torture Amendment. They say it was their intent that all forms of
torture or degrading treatment of prisoners be outlawed. This has been a
gray area for the courts over time. In this gray area, the question is who
should set the rules. In the short term, surely the president can. In the longer
term, the people should, through their elected representatives. We are their
elected representatives. President Bush signed the bill, but he issued a signing
statement, saying he intended to enforce the law based on his interpretation of
the Constitution. He said because the Constitution gives the president the
sole power to wage war, he has the final say over the treatment of prisoners.
Joining us now to talk about intent and signing statements are Judge Patricia
Wald. She served on the US Court of Appeals for the District of Columbia
Circuit from 1979 to 1999, serving as chief
judge from 1986 to 1991. She was a member of
the President’s Commission on the intelligence capabilities of the US
regarding weapons of mass destruction. Judge Wald also participated in a
committee that studied presidential signing statements for the American Bar
Association, the nation’s largest group representing lawyers. Also joining us is Nicholas Quinn Rosenkranz an Associate Professor of Law at Georgetown
Law School. During the first administration of President
George W Bush, he worked in the US Justice Department’s Office of Legal
Counsel. The office advises the president on constitutional issues and helps draft
presidential signing statements. Professor Rosenkranz has testified
about signing statements before both the House Judiciary Committee and the Senate
Judiciary Committee. Welcome to you both. Thanks, Gwen. Professor Rosenkranz, when we
talk about intention, what does the Constitution mean for Congress’s
intentions to count, the president’s intention to count, whose counts more? Well
it’s a great and a difficult question. When I should say there are some people
who don’t believe that intention is the primary focus of statutory
interpretation. What do you mean by that? Some believe that the that when you’re trying
to figure out what a statute means. that your primary guide should be the words
of the statute. So the text that Congress chose to pass, the text that the
president chose to sign, and that trying to figure out what each
congressman meant, or thought in their head when they were voting for the bill or
writing parts of the bill is not the- both not the point, and also almost
impossible to to get out, to figure out. So a president in deciding whether to
sign a bill should just set aside what Congress’s intention is? When Congress
passes a law, these days it may be a thousand pages long and it may have the
most complex kinds of situations in it. It’s not always possible for them to
think of all of the possible situations that that law may apply to. They may not
be able to articulate precisely what they mean. They’re ordinary people those
congressmen. We’re going to look at what they said officially, when they were
passing the law and they have regular ways to say that. They have House reports,
and Senate reports which are issued at the time that people are voting on the
bill. Those two bodies come together an issue a conference report, which is
supposed to embody what they think about the bill from both sides of the houses.
You both thought your copy of the Constitution with you,
you’re established average of the bar highly accomplished. Professor
Rosenkranz is there anything in the Constitution that gives us guidance on
this issue about whose intention Congress, or the president should be
paying attention to when it comes to enforcing laws? The Constitution gives us
a mechanism for making a bill into a law. Congress writes a text of a bill and one
house votes on that text, the other house votes on the text, president signs that
text.That’s what the Constitution says about what becomes law. So intent is an
extra-constitutional concept? Well so these committee reports that Judge
Wald is referring to, the Congress does these, each house of Congress does
develop these reports as they’re developing legislation, but these reports
are not referenced in the Constitution and they are not voted on by both houses
of Congress and they are not signed by the president, so they are they are
extra-constitutional in that sense they are not law of the land. You would agree
with that? You’re right, it does not talk about intent, but I have to say I mean
Congress people are ordinary human beings. The president is an ordinary
human being. It is absolutely natural for somebody, if they are puzzled by
something or they don’t know the answer, to try to find out the context in which
that particular piece of paper was written, and that’s what President Reagan
wanted, to extend to the president, he wanted to extend those the concept of
legislative history to say, “hey look at what the president, when he find that
bill a lot about it thought he was signing.” Now we can debate about whether
that’s a legitimate part of the total history. For judges who do think that
intention matters, the question is whether it’s just Congress’s intent that
matters, or whether the president’s intent also matters. Some people say well
if you’re going to look at congressional at the congressional record or at
Congressional reports, you should also look at presidential signing statements.
The reason is just, the president plays a role in the passage of legislation. So
just like the House matters, just like the Senate matters, the president matters,
and what the president thought should matter. Again these are the people who
believe in intention to begin with. Well, as a member a longtime member of the
judiciary, maybe you can tell me, how do judges think when they presented with
this kind of legislative history? My own feeling is
the Constitution says the legislative power is in the legislature, therefore if
we’re going to look at intent at all, moving away from the legislative history
debate, we’re going to look at at all it is the intent of the Congress. Now I have
no objection if somebody looks as occasionally, doing saying by the way
listen, the president also felt this way or the president’s thought this too. That
shows you that your reasonable people all over there. I would never see an
instance in which, if the president interpret one way and most of the
Congressional history was in other way, that a court would say aha we’re gonna
side in this controversy with the presidential interpretation over the
Congressional interpretation. To what degree does this is discussion about intent and
presidential intent having to do specifically with signing statements
affect the balance of power, of whether it’s been Congress’s word gets taken
over the president’s word or vice versa? Or in the end it all gets thrown to the
courts? This does implicate the balance of power between Congress and the president.
If the courts were to take the position that Congress is intention mattered and
the president’s intention did not, that would shift power a bit toward Congress,
and if the courts were to say that the president’s intent mattered just as much
as Congress’s, it would shift power a bit toward the president. Now I think Judge Wald and I would probably agree, these things don’t have that much of an effect,
one way or the other so as a general matter the text of the statute is your
clearest guide to what it means. Judge Wald and i would agree. -Is that true? -Text
certainly where you go first, and if it’s answered in the text you don’t go any
further. It’s where there’s ambiguity, you move in my case, I’m would move to congressional history, probably would only look at the presidential signing statement to see whether or not they happen to agree. We should clarify, many
signing statements say, I will interpret this statute to be consistent with the Constitution. That makes him the final arbiter of constitutionality, of the statute when
the Constitution says the legislative power. If a law has ten provisions in it, he
says okay, I’m okay with eight. The other two, I’m going to interpret according to
my version of the Constitution, and I think they’re
unconstitutional so I’m not going to do those two. That word goes to the executive
branch, maybe you can get a judicial case out of it, and maybe you can’t, but I
cannot believe that this Constitution meant him to have the final
interpretation of the Constitution. Judge, he’s not saying that he thinks those two
provisions are unconstitutional, he’s saying I think these two provisions mean
X and that X is constitutional. But he doesn’t, that isn’t the way it’s set. In 82, 82 separate cases
he used exactly the same wording as a they used in the McCain amendment, which said,
I will interpret this to be consistent with my view of what my presidential
inherent power is. One of the major issues facing separation of powers today
is, executive power has it been over interpreted? Has it been abused? Has
Congress been put in the lower provision? He’s saying i’m just going to go ahead
and take my constitutional version of what I think presidential power is and
planted as an imprint on any statute that comes my way. It sounds like this is
going to end up at the end of being resolved in a court of law, probably
Judge Patricia Wald and Professor Nicholas Rosenkranz, thank you both very
much. Thank you. For more information on signing statements and the Constitution,
please visit Annenbergclassroom.org I’m Gwen Ifill.

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