July 16, 2006

RICHARD EPSTEIN criticizes Presidential signing statements. While I think there's some place for them -- and, shockingly, as Epstein notes, they predate the Bush Administration -- I think that reinterpreting laws via signing statements is wrong. Presidents should veto bills they object to, rather than signing them and trying to avoid their impact through signing statements.

Here's an excerpt, which seems right to me:

President Bush dishonors traditions in his aggressive use of signing statements as one way among many to circumvent the congressional and judicial checks built into the Constitution.

My objection to signing statements does not apply just to the president. It includes efforts by members of Congress to skew statutory interpretation through the adroit use of legislative history. The risk in both situations is that the president or members of Congress essentially fudge the record to distort the meaning of laws.

Individual members of Congress don't speak for an entire branch of government. The president, however, by virtue of his distinctive constitutional position, necessarily speaks for the branch that lies under his direct control. His message is often all too clear.

One way to counter the risk is to give these statements no more weight before a court or administrative agency than the same statement made by some third party in a law review article or editorial. Assuming that courts would do so, many people might wonder why signing statements are any big deal, if courts are free to disregard them.

He explains why. (Via Jonathan Adler, who rounds up some other comments).