Relating Presidential Signing Statements and RUDs?

What limits, if any, exist for the President’s ability to issue “signing statements” concurrently with his signature of a congressional bill? For example, can the President indicate that he’ll construe a statute to apply only where consistent with his view of his constitutional authorities? President Bush did just that with respect to the McCain Amendment; indicating he would construe the Act’s prohibition on cruel, inhuman, and degrading treatment “in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President . . . of protecting the American people from further terrorist attacks.” Or, can the President go so far as to actually indicate he will not comply with certain statutory provisions if he believes they are unconstitutional, as suggested in President Bush’s statement when signing the Patriot Act reauthorization?

Professors Curtis Bradley and Eric Posner tackle these questions in a new article, available on SSRN here. They argue that:

[P]residential signing statements are legal and . . . provide a useful way for the president to disclose his views about the meaning and constitutionality of legislation. In addition, basic tenets of positive political theory suggest that signing statements do not undermine the separation of powers or the legislative process and that, under certain circumstances, they can provide relevant evidence of statutory meaning. Although President Bush has raised many more constitutional challenges within his signing statements than prior presidents have, at least on their face these challenges are similar to challenges made by other recent presidents, such as President Clinton. Whether Bush’s views of executive power are significantly different from Clinton’s, and if so, whether they are inferior, remain open questions, but these issues are independent of whether signing statements are lawful.

Bradley and Posner’s scholarly defense of signing statements comes on the heels of extensive on-line and media discussions. Larry Tribe, Marty Lederman, and a number of former OLC officials had already argued that the President’s signing statements themselves were not problematic, even if one could debate whether his view of “unitary executive” power that motivated such statements was proper. On the other had, the ABA, at its annual meeting denounced the practice “as contrary to the rule of law and our constitutional system of separation of powers” whenever a signing statement indicates an “intention to disregard or decline to enforce all or part of a law the President has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress.”

It’s an interesting debate and one well worth following. At a minimum, I think Bradley and Posner make a good case for refocusing the debate away from asking whether the President can interpret or contest provisions he finds unconstitutional at the time of signing a bill to the arguably more important question of when the President is entitled to do so (i.e., how broadly does Executive power relate to or trump Legislative power).

For my purposes, however, I was struck by an interesting analogy in this debate to the reservation problem that plagues the international law of treaties. Bradley & Posner delineate three distinct categories of signing statements: (1) rhetorical statements that indicate general policy views, such as that a bill does not go far enough to redress a particular problem; (2) interpretative statements that offer a particular meaning to an otherwise ambiguous part of a statute; and (3) constitutional statements that declare the President’s intent to interpret a statute narrowly or to not enforce certain provisions of it on constitutional grounds. In some sense, this struck me as similar to current treaty practice, where a state may append to its instrument of ratification bringing the treaty into force for that state (1) rhetorical declarations indicating general policy views on the treaty or even unrelated subjects; (2) interpretative understandings, where the state offers its intepretation of the scope or meaning of one or more treaty provisions; and/or (3) reservations in which the state indicates that it does not intend to follow (or that it will modify) certain of the treaty’s obligations. In other words, there’s actually quite an interesting parallel between the domestic law-making function here in the United States and the treaty-making function under international law.

Now, perhaps the more important question is why should we care about this analogy?