Notes on Purchasing Print Copies and Viewing/Listening to Symposium:
The symposium articles will be forthcoming in the first issue of Volume 16. To pre-order a copy of the symposium issue, download the order form and send it to: William & Mary Bill of Rights Journal, ATTN: Executive Editor, P.O. Box 8795, Williamsburg, Virginia 23187-8795.
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Symposium Background:
The increase in volume and force of content of presidential signing statements has provoked political and scholarly inquiry into their use. On January 31, 2007, the House Committee on the Judiciary held an Oversight Hearing on "Presidential Signing Statements under the Bush Administration." Last year, the Senate Committee on the Judiciary held hearings to consider a response to the rapid growth of the practice. And, in August 2006, the ABA adopted as policy the recommendations of their Task Force on Presidential Signing Statements and the Separation of Powers Doctrine and resolved to oppose the misuse of signing statements. Presidential signing statements may have broad modern implications for every administrative agency, for the independent judiciary, and for congressional power. This symposium, held at William and Mary School of Law in Williamsburg, Virginia on Feb. 3, 2007, explored each of these issues in detail.
Introduction: Michael Pacella, Editor-in-Chief, William & Mary Bill of Rights Journal
Panel 1: History and Modern Affairs
Panel 2: Separation of Powers: The Executive and Legislative Branches
Panel 3: Separation of Powers: The Executive and Judicial Branches
Panel 4: “Take Care” Clause
Panel 1: History and Modern Affairs
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Description:
Since the birth of the Republic, Presidents have attached executive statements to bills at the time they are signed into law. Initially, the statements were used to thank those involved in crafting the law and were paid little attention. Today, they have greatly expanded in number and complexity, and have been thrust into the political and academic limelight. In fact, President George W. Bush has raised more than 1,000 constitutional challenges through the vehicle of presidential signing statements—more than any other President individually or all other presidents combined. This panel traced the history of presidential signing statements and reflected on their modern development. Additionally, it explored specific instances in which the practice has been peculiarly consequential such as national security, church and state affairs, and treaties.
Introduction: Michael Pacella, Editor-in-Chief, William & Mary Bill of Rights Journal
Moderator:
Davison Douglas, Arthur B. Hanson Professor of Law and Director, Election Law Program, College of William & Mary School of Law
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Panelists:
Dr. Christopher Kelley, Visiting Assistant Professor of Political Science, Miami University, Ohio
Dr. Kelley spoke about President Reagan’s decision to add signing statements to the legislative history of bills he signed. While much of the focus of the action was on the intent to influence the judicial decision-making process, he argued that the real intent was to influence executive branch decision-making.
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Phillip J. Cooper, Professor of Public Administration, Hatfield School of Government, Portland State University
Professor Cooper focused on the transformation of signing statement practice, in particular the issues of scope and consistency in the assertion of executive authority.
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Harold J. Krent, Dean and Professor of Law, Chicago-Kent College of Law
Dean Krent addressed President Bush’s conception of the unitary executive ideal as reflected through his signing statements.
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Peter M. Shane, Joseph S. Platt – Porter, Wright, Morris & Arthur Professor of Law, Director of the Center for Interdisciplinary Law and Policy Studies, Ohio State University’s Moritz College of Law
Professor Shane talked about two different understandings of the “rule of law,” which he calls “institutional” and “formalistic,” and argued that the Bush Administration has moved from the former towards the latter. He suggests that the proliferation of signing statements is best explained in terms of a desire to produce something that looks like formal precedential authority for legal positions that could not otherwise be sustained based on the customarily relevant legal materials.
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Q & A: [tape counter: 65:25]
Panel 2: Separation of Powers: The Executive and Legislative Branches
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Description:
All legislative power rests with the United States Congress. When Congress presents legislative proposals to the President, attaching a signing statement may affect the substance of that law rather than merely adopt or reject it wholesale. The practice may be a subtle line item veto or due executive prerogative. Congress may legally or politically preempt or anticipate the practice, and the President may leverage signing statements against the legislative or political process. This panel will explore unique considerations signing statements have for the legislative and political process as they affect the division of power between the two branches, including how signing statements may affect Congress’s legislative history.
Moderator:
Neal Devins, Goodrich Professor of Law, Professor of Government, and Director, Institute of Bill of Rights Law, College of William & Mary School of Law
Panelists:
Nelson Lund, Vice Dean and Patrick Henry Professor of Constitutional Law and the Second Amendment, George Mason University
Professor Lund explored whether, and if so in what respects, Presidents should use standards or techniques of statutory construction that are different than the standards that courts do or should use.
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Michael Rappaport, University Professor of Law, University of San Diego School of Law
Professor Rappaport argued that the President cannot issue a signing statement that instructs the executive branch not to enforce an unconstitutional law if the President signed that law. If the law is unconstitutional enough not to enforce, it is unconstitutional enough to veto.
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Charlie Savage, The Boston Globe
Mr. Savage discussed the Bush-Cheney signing statements in relation to the various Office of Legal Counsel memorandum about the President's war powers to act in defiance of statutes and treaties viz. wiretapping, torture, etc.
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A. Christopher Bryant, Professor of Law, University of Cincinnati College of Law
Professor Bryant argued that the adverse reaction to the President's recent use of signing statements is largely misplaced and that signing statements flagging executive branch constitutional objections to potential interpretations of new statutes arguably serve the healthy function of alerting the Congress to executive branch views and practices that might otherwise remain covert.
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Q & A: [tape counter: 61:15]
Panel 3: Separation of Powers: The Executive and Judicial Branches
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Description:
The Constitution assigns the judicial power of the United States to Article III courts, which regard their role as interpreter of the Constitution and definer of the boundaries of the law. But when the Executive adopts a law and attaches a signing statement, it may affect the substance of the law presented to the Judiciary. If the Judiciary uses the internal debate in Congress to inform its interpretation of legislative intent, it could likewise use the internal debate in the Executive branch, as outlined in a presidential signing statement, to inform the President’s intent when adopting the law. This panel will consider special consequences signing statements have for the Judiciary, including potential judicial treatment of and response to the general practice (such as how a court may untangle legislative and executive histories in tension) and whether signing statements may affect substantive rights.
Moderator:
The Honorable F. Bradford Stillman, U.S. Magistrate Judge, Eastern District of Virginia
Panelists:
Neil J. Kinkopf, Associate Professor of Law, Georgia State University College of Law
Professor Kinkopf argued that presidential signing statements cannot be used as an interpretive tool. As a matter of pragmatism, legislative history has been widely criticized as an unreliable guide to legislative intent and as subject to political manipulation both by judges and by legislators. Professor Kinkopf suggested that these pragmatic criticisms apply with equal or greater force to presidential signing statements.
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Mark Agrast, Senior Fellow, Center for American Progress
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Phillip J. Cooper, Professor of Public Administration, Hatfield School of Government, Portland State University
Professor Cooper focused on signing statements as declaratory judgments, in particular the executive attempt to render authoritative interpretations and difficulties for judicial response.
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Q & A: [tape counter: 65:15]
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Description:
The Executive's duty to take care that the laws of the United States are faithfully executed includes a margin of discretion in today's modern administrative state. Signing statements may function as executive directives to agencies under the President’s discretion, but independent agencies may respond differently. Alternatively, signing statements may warrant a different level of deference in the agencies than typical policy directives. The unusual place of signing statements in the administrative state may also give rise to unique justiciability questions for the judiciary. This panel will examine how the administrative state has responded and will likely respond to the practice, including how the signing statements themselves may guide traditional agency practice under executive authority and how agencies may treat the statements in rulemaking and adjudication when they seem to substantively alter the law to be carried out.
Moderator:
W. Taylor Reveley, III, Dean and John Stewart Bryan Professorship of Jurisprudence, College of William & Mary School of Law
Panelists:
Michele E. Gilman, Associate Professor of Law, University of Baltimore
Professor Gilman explored the extent to which signing statements are justiciable.
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M. Elizabeth Magill, Joseph Weintraub-Bank of America Distinguished Professor of Law, University of Virginia School of Law
Professor Magill spoke about how signing statements are a way for the President to have the "first word" (rather than the "last word" in the legislative process) in the process of executive branch legal interpretation and exercise of discretion. As the first word, statements can be a mechanism to curb the discretion/legal interpretations that agencies might otherwise attempt to assert.
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Christopher H. Schroeder, Charles S. Murphy Professor of Law and Professor of Public Policy Studies, Director of the Program in Public Law, Duke University; Of Counsel, O’Melveny & Myers
Professor Schroeder argued that with respect to the internal management of the executive branch or the independent agencies, signing statements present no distinctive issues not already raised by the issuance of executive orders, presidential memoranda or presidential directives of other kinds. He suggested that to the extent agencies act on the basis of interpretive directions provided by signing statements, standard doctrines of justiciability and interpretive deference should apply to those actions.
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Dr. Louis Fisher, Constitutional Law Specialist, Library of Congress Law Library
Dr. Fisher considered the practical meaning (not the mere rhetoric) of signing statements. He argued that there is a disconnect between signing statements and agency conduct.
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Q & A: [tape counter: 68:20]