Constitutional License

Aziz Huq is associate counsel at the Brennan Center for Justice at NYU School of Law.  He is co-writing a book titled Unchecked and Unbalanced with Fritz Schwarz on national security and the separation of powers, to be published by the New Press.  

Who writes the law of the United States? 

For more than 200 years, the answer was clear.  The first sentence of the Constitution’s first article tells us that “All legislative Powers herein granted” go to Congress.  As the framers carefully explained, this means only the “Senate and House of Representatives”—not the president in the act of signing a bill into law. 

But recent executive branch maneuvers risk shifting the traditional balance of power decisively toward the president’s side by snatching from Congress those very same “legislative Powers.”  It is a dangerous development.

Attacks on legislative and judicial prerogatives are typically based on aggressive claims of executive power under the Constitution.  Such claims played pivotal roles in the Justice Department’s justifications for torture and domestic eavesdropping. Now the Bush administration has gone even further. This newer, subtler and equally dangerous assault on Congress’ role came to public light during Supreme Court confirmation hearings for Judge Samuel Alito: The use of “interpretative” presidential signing statements to change the basic meaning of a law. This under-the-radar innovation now risks compromising the basic function of Congress without any meaningful public debate—unless Congress puts up more of a fight.

Consider the process of drafting a law, putting it through both houses of Congress, and presenting it for signature to the president. The “interpretative” signing-statement gives the executive branch a third bite at the apple in shaping that law.   

First, the executive branch gets far greater access than private parties to closed-door legislative negotiations.  Wielding a threat of presidential veto, administration officials can force its preferred language through without fear of public scrutiny. 

Second, presidents have stated when signing a bill that they will interpret the law so as to preserve their own constitutional prerogatives. While these objections have become more frequent and alarming in recent years, they are, at least, within a recognizable constitutional tradition. 

The third bite at the apple, interestingly, was devised by Judge Alito in 1986 while he worked in the Department of Justice developing “Litigation Strategy.”  This break with tradition suggested that a president’s signing statement be used not only to address a limited class of constitutional issues, but also mundane and frequently arising questions about what a law in fact meant.  This argument required a radical leap in constitutional interpretation, which Alito delivered. Given that the president plays “just as important” a role in legislating as Congress, the Reagan Justice Department argued, federal courts ought to defer to these presidential interpretations. Exactly how this “just-as-important” role could be squared with the first words of the Constitution’s Article 1 went unexplained. 

Such thrice-bitten apples leave Congress scant authority.  As Judge Alito explained in 1986, interpretative signing statements “increase the power of the Executive to shape the law,” but only at Congress’s expense.  This is because any law contains ambiguities, often on key issues.  The president already controls how federal departments and agencies make decisions on these ambiguous points:  The Justice Department can issue guiding memos that lay down a unified executive branch line.  Now, though, the president can also resist Congress’s interpretation publicly, and has an extra tool for pressing the federal courts to ignore Congress in his favor.

This may seem small beans, but in 2006, with executive power seeking its zenith, Alito’s innovation could further stifle our system of checks and balances.  More specifically, we can see how great the incursion is on Congress’s powers by examining the recently enacted Detainee Treatment Act of 2005. The latter contained an anti-abuse provision sponsored by Sen. John McCain.  It also included a measure introduced by Sen. Lindsey Graham purporting to end judicial review over Guantánamo detentions. Through Senate negotiations, this jurisdiction-stripping provision was limited to only cases filed in the future.  Hence, detainees who have been waiting for more than three years for a fair hearing in the courts would still be able to pursue their cases.

But the executive branch took its three bites: Vigorous lobbying by Vice President Cheney and senior aide David Addington against the McCain measure succeeded in limiting its effectiveness (bite one).  President Bush’s signing statement indicated that he would not follow the anti-abuse rule if it intruded on his “constitutional authority” (bite two).  Finally, the president’s signing statement announced that the act cut off judicial review in “past, present and future actions”—thereby contradicting the compromise achieved in the Senate (bite three).  Relying on the president’s signing statement, the Justice Department has now sought the dismissal of hundreds of pending cases filed by Guantánamo detainees. 

The president’s signing statement for the Detainee Treatment Act is little short of a line-item veto: Taking advantage of inevitable drafting ambiguities, the president has shot down parts of a bill that he dislikes. Yet the Supreme Court in 1998 rejected a congressional attempt to accord the president power to “cancel” discretionary spending items and tax benefits embedded in larger bills.  It’s hard to see how the president acting alone could take the equivalent of a power that Congress cannot even willfully give him.  

This latest arrogation of power has sweeping reach. The administration’s use of “interpretative” signing statement would strengthen the executive’s hand in congressional negotiations, undercut the importance of legislation debates and distort the results of pivotal court cases.  It would also supplement the existing executive power to shape a law through its implementation.  And, if the Supreme Court accepted Judge Alito’s theory, Congress will be at a further disadvantage when its legislation faces challenge in the courts.  

How will Congress react? In September 2005 confirmation hearings for Chief Justice John Roberts, Sen. Arlen Specter, R-Pa., underscored “the Senate’s determination” to confirm justices who would “respect Congress’s constitutional role.”  Specter also led a bipartisan group of senators on the committee in rejecting the efforts by the Rehnquist Court to curtail Congress’s power to remedy ongoing civil rights violations under the 14th Amendment. 

The issue of innovative use of “interpretative” signing statements arose in the Alito hearings, but with inconclusive results.  But the next three years will give Congress plenty more chances to react as the president scuppers carefully wrought legislative bargains across a range of issues. 

Let’s hope that our legislators realize how little of the apple they have left.