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November 07, 2006



Phrased as-is, I would answer question 1 no. If Congress instead said "no money may be spent to pay an attorney to argue ...", I would still say no but it's a closer call. Congress could revoke Chevron and punt statutory interpretation back to the courts, leaving Presidential proclamations to face off with legislative history to break ties when the text is unclear or judges don't like what they see.

There is a principle of Massachusetts state law denying standing to creations of the legislature which seek to challenge the constitutionality of a law. This would not apply to the executive branch which has its own constitutional grant of power. It does apply to towns.

The proposal of question three would join the line item veto (Clinton v. New York) and legislative veto (INS v. Chadha) as victims of the constitutional prescription on how a bill becomes a law.


I have never been too clear as to what the power of the purse means. Sure, you can write a statute that says “no money shall be paid” but when it comes to a substantive argument made by government counsel, there really isn’t a valid way for the other side to enforce it – i.e. nobody can argue “don’t listen to him, judge, he isn’t being paid by Congress to say that.” Maybe Congress could enact some sort of procedural device which allows a party to move to strike an argument, at any time, which is based on a signing statement. (I guess this is akin to some members of Congress, or soon-to-be ex-members of Congress attempts to sources of law to only “domestic” law, which would also be of dubious effect).

I like your analogy to Massachusetts law. Maybe the solution to the whole wiretapping issue, is for the 6th to hold that the government’s attack on the FISA violates that principle.

I don’t know if Clinton and Chadha are really the same as a anti-signing statement provision. I envision some sort of privately enforceable provision, which allows individuals to either raise a defense, or have declared void, any statute which was tarnished by a contradictory signing statement, in which the effect is to alter their substantive rights.

Anyway, now that it seems that we once again will have checks and balances of some sort, these questions I think are going to have added vitality.


The way a President voids a statute is to follow the constitutional veto provision. A law that allows him to disapprove a bill by stating his objections without returning it to Congress for possible override is incompatible with the constitution just like the line-item and legislative vetoes. Of course, the same principle says that courts can't blindly treat signing statements as partial vetoes.

I don't think courts are treating signing statements as partial vetoes. I searched published federal court decisions for the past few years and found very few references to signing statements. The dissent in Hamdan complained that the majority did not consider Bush's signing statement as part of the legislative history. A few lower courts referenced Clinton's signing statements about the purpose of a law.

(The dissent in Hamdan appears to be correct about legislative intent -- Congress' subsequent clarification of the retroactivity of the detainee treatment act is consistent with Bush's original signing statement.)


To most lawyers (at least outside of DC), signing statements are pretty much a waste of time, because, as you say, judges don’t really care about them. This may be because, until recently, signing statements were nothing but platitudes.

Inside DC, however, where many lawyers work for federal agencies that are faced with interpreting and/or applying a statute, a lawyer may learn that a statute is not to be interpreted based on its plain meaning because of the signing statement, or that “overriding” concerns alluded to in the signing statement effectively render the statute a nullity.

In these questions, some in Congress puzzled over how to reign in the executive, and at least force the president to veto things he didn’t like. The question then became: how can you give people standing. Fortunately (or unfortunately) for the First time in six years there may well be an Congress willing to stand up to contradictory signing statements, and they will have to deal with this issue.

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