Looking to a lawsuit: Signing statements and the Supreme Court

July 3

Justice Alito: Friend or foe? REUTERS/Larry Downing

The following is a guest post from Tobias Gibson, associate professor of political science at Westminster College in Fulton, Mo.

So, what if the suit goes forward? Wednesday on this site, Andy Rudalevige argued that Hosue Speaker John Boehner’s threats to sue President Obama regarding the president’s expansive use of executive powers was misguided, given Congress’s power to achieve its preferred remedies by a legislative route. But what if the suit gets to the Supreme Court?

If the suit focuses on signing statements, at least, the outcome might be a bit counterintuitive. As it stands, the president has little reason to love the court. In the past month or so, Obama administration has had major setbacks on that side of First Street: it has lost on cellphone searches, the application of a chemical weapons treaty, recess appointments and, most recently, and perhaps most devastatingly for the administration, on the birth control mandate in the Affordable Care Act. For all his “so sue me” bravado, with nemeses like Justice Samuel Alito, who wrote the majority opinion in Hobby Lobby, Harris v. Quinn – and who for good measure very publicly disagreed with the president during the 2010 State of the Union — Obama may not want a lawsuit regarding executive overreach to reach the High Bench.

One of the issues troubling the House GOP is Obama’s use of signing statements, which underwrote the recent controversy over the prisoner swap that freed U.S. Army Sgt. Bowe Bergdahl. Jonathan Capehart has noted that the speaker and other “aggrieved congressmen believe Obama, with his signing statements and executive orders, is running roughshod over their co-equal branch of government.” Boehner’s initiation of a lawsuit is based on at least efforts to rein in presidential power emanating for the Republican-majority House, only to see no movement in the Democratic-majority Senate. The lack of Senate support has left Boehner “examining other options,” including the much discussed lawsuit.

However, it is possible that Obama may have a very strong legal basis for defending his signing statements – and perhaps even a ringer on the court.

In case the reader is unfamiliar with signing statements, they serve as a written record, issued at the time a president is signing a bill into law, to indicate the president’s understanding of that bill.  There has been much controversy about them and the manner in which presidents use them, since the George W. Bush administration began to use them systematically to lay out constitutional objections to a large number of legislative provisions.

Yet it helps to remember that, like Rome, executive power was not built in a day. To lay the blame of the political use of signing statements solely at the feet of Bush is historically lazy. In fact, as the Constitution Center points out, although James Madison first used signing statements (perhaps negating the argument that the Founding Fathers wouldn’t approve), “Ronald Reagan ushered in an era of prolific proclaiming.”

Indeed, it was during the Reagan administration that the Office of Legal Counsel in the Department of Justice — the agency charged with telling the executive branch the meaning of the law — issued a groundbreaking opinion about the scope of signing statements. That memo begins with the premise that “[o]ur primary objective is to ensure that Presidential signing statements assume their rightful place in the interpretation of legislation.”

And what is that “rightful place”?  Happily, that question is addressed: “Since the President’s approval is just as important as that of the House or Senate, it seems to follow that the president’s understanding of the bill should be just as important as that of Congress. Yet in interpreting statutes, both courts and litigants (including lawyers in the executive branch) invariably speak of ‘legislative’ or ‘congressional’ intent.”

Likewise, the point of signing statements in the battle between the branches is laid out clearly: “the issuance of interpretive signing statements would…increase the power of the Executive to shape the law.”

It’s always nice when the Republican Reagan administration offers legal support for the actions taken and views expressed by the Democratic Obama administration. And if that’s not enough for Obama to have a successful day in court, it helps, too, to have a mole on the Court.

No, not former Obama administration Solicitor General Elena Kagan — but none other than Justice Samuel Alito. Why Justice Alito? Because he authored the very same OLC opinion that so emphatically argued that the president’s understanding of the law is as important as that of Congress’s. And that saw clearly the benefits to the president (and presumably the polity) of increasing his influence in the legislative process.

Careful consideration of the Alito’s historical view and role in the increase of political use of signing statements may lead Boehner to reconsider entrusting the judicial branch with this sort of final decision. Ironically, perhaps the speaker would in fact be better off following the advice of the president: if the speaker wants to limit presidential overreach, perhaps now is the time for Congress to get its institutional act together, and do something.

Indeed, as Alito queries later in the OLC memo, “What happens when there is a clear conflict between the congressional and presidential understanding? Whose intent controls?” Clearly both the legislative and executive branches have their preferences. I say, let’s find out.

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