Signing Statements as Declaratory Judgments: The President as Judge

INTRODUCTION Even though there had been scholarly consideration of the use and abuse of presidential signing statements earlier,1 and even an analysis ofthe George W. Bush administration's particularly aggressive approach to the use of this policy tool in its first four years in office,2 serious public attention and increased professional and scholarly assessments really began in January 2006. The ongoing conflict between Congress and President Bush over interrogations and conditions of detention at the Guantanamo Bay, Cuba, facility that housed those the administration termed illegal combatants had resulted in a very public agreement by the President to address abusive practices.3 The President, in a White House photo opportunity with Senator John McCain, agreed to sign legislation that would address the problem.4 However, his signing statement, issued on December 30, 2005, made clear that the administration intended to interpret and implement that legislation as it saw fit and not necessarily as Congress had intended or written.5 That news broke just as Samuel Alito was preparing to face confirmation hearings in the Senate Judiciary Committee on his nomination to become an Associate Justice ofthe United States Supreme Court. It became clear from materials released before those hearings that Alito, while at the Justice Department, had issued a now well-known memorandum on February 5, 1986, explaining how signing statements could be used by the White House to enhance presidential power.6 Since then, scholars, legal practitioners, and legislators have spent considerable energy attempting to understand this policy tool and what its use and abuse mean for the separation of powers and the checks and balances under the U.S. Constitution, as well as to determine its practical implications for public policy. As interest and concern spread, it became apparent, even to the newcomers to the discussion, that the Bush administration had not been the first to use signing statements to react to the passage of legislation, but that there plainly had been a deliberate expansion of the use of the device, starting with the Reagan administration.7 That said, from the first study of the George W. Bush administration on, it became clear that this administration was making a more frequent, systematic, and expansive use of the instrument based on extremely broad claims of presidential power that asserted nearly unchecked authority in anything related to foreign or military affairs on the basis of an asserted prerogative power, as well as dramatic assertions of broad domestic power supported by the so-called unitary theory of the executive. Indeed, in its first term, the George W. Bush administration had advanced the unitary theory of the executive as the basis for more of its constitutional objections to provisions in legislation that the President nevertheless signed into law than any other justification.8 Not surprisingly, the criticism and controversy surrounding the use and abuse of signing statements centered on the relationship between Congress and the White House, with particular concern for the Presentment Clause of the Constitution, Article I, Section 7. With the use of the signing statement as a kind of substantive line item veto, a practice already rejected by the Supreme Court,9 and a simultaneous recognition of the utter failure of Congress to pay attention to its own institutional operations and to defend its Article I powers,10 the focus of discussion was on the ways in which the contemporary use of the signing statement affected the checks and balances and the separation of powers it was designed to protect between these two institutions.11 However, there is another set of questions worthy of attention that have to do with White House actions that move into the sphere of judicial powers under Article III. Indeed, when one examines the use of signing statements since the Reagan years, it becomes clear that, in addition to its efforts to enhance its powers as against the legislature, the White House has also sought to enhance executive authority in part by acting as if it were a court. …