Statutory Interpretation & the Presidency: The Hierarchy of Executive History

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1 From the SelectedWorks of Faye E Jones September 9, 2010 Statutory Interpretation & the Presidency: The Hierarchy of Executive History Faye E Jones, Florida State University Alvan Balent, Florida State University Available at:

2 Statutory Interpretation & the Presidency: The Hierarchy of Executive History Alvan Balent Abstract It is common knowledge that the New Deal fundamentally remade America because after the New Deal, Americans began looking to the federal government to solve their problems. This increased public interest in the national government prompted major changes in each branch of the government. The Executive branch, for instance, became the most prominent branch of the federal government, and the President consequently began exerting himself in all aspects of the government including lawmaking. Congress began to pass more legislation, and thus the federal judiciary s docket became filled with statutory interpretation cases. However, when interpreting statutes, the judiciary has largely disregarded the President s increased role in the lawmaking process. For instance, when confronted with ambiguity in statutory text, the courts often look to extrinsic interpretative aids like legislative history in order to ascertain the congressional intent behind the statute. Presidential interpretative aids such as signing statements are only occasionally consulted. The notion of consulting presidential materials, i.e. executive history, for statutory interpretation purposes has recently become a controversial topic; some have even argued that the practice raises constitutional concerns. This Article first examines the constitutional concerns surrounding judicial use of executive history and shows that the practice is constitutional for statutory interpretation purposes. However, like any judicial interpretative aid, presidential materials having varying degrees of reliability and authoritative value. This Article accordingly proposes a new organizational scheme for executive history in general a hierarchal 1

3 model similar to the one that exists for legislative history and thus shows what types of executive history the courts should be more inclined to reference. Table of Contents I. Introduction... 2 II. Presidential Involvement in Congressional Law-Making... 5 III. Presidential Signing Statements IV. Executive History s Hierarchy A. Legislative History Trumps Executive History B. Most Reliable Types of Executive History C. Least Reliable Types of Executive History D. A Possible Exception- Administrative Agencies V. Conclusion I. Introduction In 1930, Max Rabin remarked that Anglo-American law was becoming statutory. 1 Now, it is undeniable that we live in an age of legislation, and most new law is statutory law. 2 Statutory interpretation has consequently become the cornerstone of a judge s job, 3 yet despite statutory interpretation s centrality in the judicial system, there is no generally accepted theory of 1 Max Radin, Statutory Interpretation, 43 HARV. L. REV. 863, 863 (1930). 2 Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997); see also Kristy L. Carroll, Note, Whose Statute is it Anyway?: Why and How Courts Should Use Presidential Signing Statements When Interpreting Federal Statutes, 46 CATH. U.L. REV. 475, 485 (1997) ( This is an age of statutes. ) (internal citation omitted); Frederick Schauer, Ashwander Revisited, 1995 SUP. CT. REV. 71, 73 n.11 & accompanying text (1995). 3 Scalia, supra note 2, at

4 statutory interpretation for courts to use and consistently apply. 4 There are only a few widely accepted rules of statutory construction 5 such as following statutory text that is clear and unambiguous. 6 Unfortunately, ambiguity permeates statutory texts. The lack of an overarching approach to statutory interpretation has subsequently allowed for a diverse range of opinions to arise on how courts should most appropriately resolve statutory ambiguities. 7 The courts, though, have identified various sources, outside the statutory text, as helpful for statutory interpretation purposes. 8 One common extrinsic aid is legislative history, which is an umbrella term for multiple sources like congressional floor debates, committee reports, hearing testimony, and presidential messages. 9 These sources collectively provide the courts with the relevant background information about the circumstances that led to the enactment of the statute, to highlight the mischief at which the statute was aimed, or to signal the goal of the legislation. 10 A court is supposed to be able to discern Congress intent from this 4 See HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS 1169 (William N. Eskridge, Jr. & Phillip P. Frickey eds., 1994). 5 There technically is a difference between statutory interpretation and construction. NORMAN J. SINGER, STATUTES AND STATUTORY CONSTRUCTION 45.4 (7th ed. 2009) ( There are numerous judicial expressions which distinguish between interpretation and construction on the ground that interpretation determines the meaning of words and construction determines the application of words to the facts. ). This distinction, however, is largely theoretical as both Sutherland s treatise and the courts, when resolving statutory questions, use these terms interchangeably. Id. These terms will thus be used interchangeably in this Article as well. 6 Scalia, supra note 2, at 16; see also Chevron U.S.A. Inc., v. Natural Resources Defense Council, Inc., 467 U.S. 837, (1984) ( If the intent of Congress is clear, that is the end of the matter; for the court, as well as [an administrative] agency, must give effect to the unambiguously expressed intent of Congress. ). 7 See generally Philip P. Frickey, From the Big Sleep to the Big Heat: The Revival of Theory in Statutory Interpretation, 77 MINN. L. REV. 241 (1993). 8 See Kathryn Marie Dessayer, Note, The First Word: The President s Place in Legislative History, 89 MICH. L. REV. 399, 399 (1990). 9 Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. CAL. L. REV. 845, 845 (1992). 10 Dessayer, supra note 8, at

5 information. 11 This intent then guides the court through the statutory interpretation process. However, U.S. Supreme Court Justice Antonin Scalia has essentially spearheaded an effort to have courts abandon the use of legislative history as an interpretative aid; using legislative history to interpret statutes has thus become controversial. 12 However, of the aforementioned legislative history sources, a court s use of executive branch materials to determine Congress intent for statutory construction purposes has been particularly debatable. This controversy has most recently converged around the use of presidential signing statements as legislative history. 13 With respect to presidential interpretative aids in general, it is relatively easy to understand why using executive history to interpret a legislative statute is divisive; the notion seems to conflict with the Constitution s separation of powers structure. Arguments have consequently been made that judicial reliance on such material to discern congressional intent for statutory interpretation purposes would fundamentally alter the balance of power equation between Congress and the White House. 14 This Article begins by showing the inherent weaknesses of these constitutional arguments and subsequently argues that the courts can use any type of executive history materials to discern Congress intent for statutory construction purposes. However, given the current fervor over presidential signing statements, this Article 11 Id. 12 See Note, Why Learned Hand Would Never Consult Legislative History Today, 105 HARV. L. REV (1992); Scalia, supra note 2, at But cf. Breyer, supra note 9 (acknowledging that problems exist with legislative history but argues against its abandonment as an interpretative aid because there are situations where it is particularly useful). 13 Cf. Frank B. Cross, The Constitutional Legitimacy and Significance of Presidential Signing Statements, 40 ADMIN. L. REV. 209 (1988) with Marc N. Garber & Kurt A. Wimmer, Presidential Signing Statements as Interpretations of Legislative Intent: An Executive Aggrandizement of Power, 24 HARV. J. ON LEGIS. 363 (1987). 14 See, e.g., Garber & Wimmer, supra note 13, at 363 (arguing that judicial use of presidential signing statements would violate the Constitution s separation of power doctrine by giving the President the power to make law and by allowing the President to usurp the judiciary s role of interpreting statutory meaning. ). 4

6 largely limits its discussion of possible executive interpretative aids to these statements. This Article nevertheless recognizes that as with any type of source material, some executive history sources inherently hold more authoritative interpretation value than others. This Article accordingly proposes that executive history materials be ranked in a hierarchically manner similar to the legislative history hierarchy system, which generally ranks the interpretative value of legislative history sources. 15 Then, based upon the Constitution s framework for presidential involvement in the lawmaking process, this Article shows why executive sources like presidential speeches to Congress and veto messages are the most reliable and authoritative types of executive history for statutory interpretation purposes, whereas sources like presidential signing statements should be ranked at or near the bottom of this proposed hierarchy. II. Presidential Involvement in Congressional Law-Making The Constitution famously divides the federal government s powers between three separate and distinct branches. It vests all legislative powers herein granted with the Congress, 16 [t]he executive power with the President, 17 and the judicial power with the Supreme Court and any inferior courts as the Congress may ordain and establish. 18 Thus, as mentioned above, judicial reliance on presidential materials to help interpret a congressional statute is controversial because facially, such reliance appears constitutionally questionable. The Constitution, however, does not establish three branches with precisely defined boundaries. 19 Instead, [i]t enjoins upon its branches separateness but interdependence, autonomy but 15 WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION, 222 (1994). 16 U.S. CONST. art. I, Id. at art. II, Id. at art. III, Chadha, 462 U.S. at

7 reciprocity. 20 The Supreme Court has thus tried to apply the separation of powers doctrine in a manner than reflects common sense and the inherent necessities of the governmental coordination 21 rather than in an absolutist fashion with each branch s powers being impenetrably separated. 22 Moreover, the Court has recognized that an absolutist application of the separation of powers doctrine would preclude the establishment of a Nation capable of governing itself effectively. 23 One branch must therefore infringe, impair or attempt to assume a power central to another branch for the Supreme Court to enforce the doctrine. 24 Judicial reliance on presidential materials to interpret a statute does not rise to such a level because the Constitution expressly requires presidential involvement in the legislative process of lawmaking. 25 The President, for instance, is constitutionally authorized to recommend measures to Congress, and perhaps most importantly, the Constitution gives the President the power to veto legislation, which can only be overridden with a two-thirds 20 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). 21 J.W. Hampton & Co. v. United States, 276 U.S. 394, 406 (1928). 22 Myers v. United States, 272 U.S. 52, 291 (1926) ( The separation of the powers of government did not make each branch completely autonomous. It left each power to exercise, in some respects, functions in their nature executive, legislative and judicial. ); see also Buckley v. Valeo, 424 U.S. 1, 121 (1976); Springer v. Government of the Philippine Islands, 277 U.S. 189, 209 (1928). 23 Buckley, 424 U.S. at See Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, (1983) (Powell, J., concurring). 25 U.S. CONST. art. I, 7 (describing the President s power to veto legislation); U.S. CONST. art. II, 2 (stating that the President and U.S. Senate share the power to make treaties); U.S. CONST. art. II, 3 (directing the President to (1.) give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; (2) to convene both houses, or either of them, and in case of disagreement between them with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; and (3) to take care that the laws be faithfully executed. ); see also Buckley, 424 U.S. at 121 ( The President is a participant in the legislative process by virtue of his authority to veto bills. ); Chadha, 462 U.S. at 947 ( It is beyond doubt that lawmaking [is] a power to be shared by both Houses [of Congress] and the President. ); United States v. Lovett, 328 U.S. 303, (1946) (Frankfurter, J., concurring) (stating that laws are the product of both Houses of Congress and the President. ). 6

8 supermajority vote in both Houses of Congress. The President consequently has enormous influence over the lawmaking process because in order to avoid a veto, Congress must bear in mind the President s views on potential legislation and tailor its legislative product to suit the President s liking. 26 The President s recommendation power further strengthens the President s ability to shape legislation through the threat of a veto because by articulating his views at the beginning of the legislative process, it becomes more difficult for Congress to significantly alter the legislation and still avoid the veto. 27 Technically, the Constitution gives Congress the final say on legislation by vesting it with the ability to override the President s veto through a twothirds vote in each House of Congress. 28 Historical and mathematical realities, however, show that there is only a slight chance that Congress will successfully override a veto. 29 Thus, the fact that most vetoes will stick forces Congress to strive to please the President when crafting legislation. 30 The Founding Fathers were well aware of the influence they were giving the President over the lawmaking process through the aforementioned powers. 31 They nevertheless believed that presidential involvement in the lawmaking process was a necessary check against legislative excess. The President, for example, is the only nationally elected official of the federal 26 Dessayer, supra note 8, at Id. at See U.S. CONST. art. I, Brad Waltes, Note, Let Me Tell You What You Mean: An Analysis of Presidential Signing Statements, 21 GA. L. REV. 755, 779 (1987); see also LOUIS FISHER, THE POLITICS OF SHARED POWER: CONGRESS AND THE EXECUTIVE 25 (1981) (stating that between the Washington and Carter Administrations, only 94 of 1,380 regular vetoes were successfully overridden). 30 Id.; Charles L. Black, Jr., Some Thoughts on the Veto, 40 LAW & CONTEMP. PROBS. 87, (1976). 31 See THE FEDERALIST NO. 73 (Alexander Hamilton) ( A power of this nature in the Executive, will often have a silent and unperceived, though forcible, operation. When men, engaged in unjustifiable pursuits, are aware that obstructions may come from a quarter which they cannot control, they will often be restrained by the bare apprehension of opposition, from doing what they would with eagerness rush into, if no such external impediments were to be feared. ). 7

9 government, 32 and the Supreme Court has long recognized the importance of having a national perspective [included in] the legislative process. 33 Such involvement not only provided a way to guard the community against the effects of a faction, precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of [Congress], but also a way to protect the presidency as an institution against improper legislative encroachment into the Executive power. 34 The Constitutional Convention debates were thus over the extent of presidential involvement in the lawmaking process rather than whether the President should be involved. 35 However, because the Framers explicitly stated when they wanted the President involved in the legislative process, it can be argued that the courts should not add to those express delegations by giving the President a voice in what legislation means. These arguments, though, do not properly address the fact that the President s constitutional powers already give him great influence over legislative wording, which inherently impacts a statute s meaning. Characterizing judicial reliance on executive history as adding to the President s involvement in the lawmaking process is thus a misnomer; such reliance merely acknowledges the reach of the President s involvement in the lawmaking process. Moreover, by requiring veto messages, a form of executive history, to be recorded in the legislative journals that each House of Congress 32 Cf. U.S. CONST. art. I, 2-3, with U.S. CONST. art. II, Chadha, 462 U.S. at 948; see also Myers, 272 U.S. at 123 ( The President is a representative of the people, just as the members of the Senate and of the House are, and it may be at some times, on some subjects, that the President, elected by all the people, is rather more representative of them all than are the members of either body of the Legislature, whose constituencies are local and not country wide ). 34 THE FEDERALIST NO. 73 (Alexander Hamilton); see also THE FEDERALIST NOS. 47 & 51 (James Madison). 35 See 1 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 612 (2d ed. 1851) (describing how the Framers debated whether the President should have an absolute or qualified veto). 8

10 is constitutionally mandated to create, the Framers seem to have implicitly approved of using executive history for statutory interpretation purposes. 36 Furthermore, while each of the President s legislative actions is not recorded in a journal like Congress are, the types of executive history with potential interpretative value are publicly recorded. The media, for instance, covers major presidential speeches. Executive orders and other presidential material are publish in the Federal Register. 37 In addition, the Supreme Court has consistently looked to this nation s history and traditions when deciding constitutional questions. 38 While the Court has debated how it should analyze tradition and history, 39 the existence of a historical or traditional practice generally confers a degree of constitutionality upon the issue before the Court. 40 The constitutional arguments against judicial use of executive history to interpret congressional statutes are thus undermined not only by the text of the Constitution but also by the long history of actual presidential involvement in the lawmaking process. Such involvement began with George Washington, who wrote down his ideas for a bill on the national militia, 41 and as seen most 36 See U.S. CONST. art. I, 5, See generally Federal Register: About, (last visited Apr. 16, 2010); see also Garber & Wimmer, supra note 13, at 367 (describing the Reagan Administration s successful efforts to have presidential signing statements published in the U.S. Code Congressional and Administrative News for the first time). 38 See, e.g., District of Columbia v. Heller, 128 S.Ct (2008) (using history to help determine that the Second Amendment confers individuals the right to bear arms); Lawrence v. Texas, 539 U.S. 558, 562 (2003) (holding that sodomy laws are unconstitutional in part because [i]n our tradition the State is not omnipresent in the home. ); Roe v. Wade, 410 U.S. 113, 117 (1973) (finding a constitutional right to abortions based partly on what medical-legal history reveal[ed] about man s attitudes towards the abortion procedure over the centuries. ). 39 Cf. Michael H. v. Gerald D., 491 U.S. 110, 127 n.6 (1989) (arguing that the Court should consult the most specific tradition available ) with id. at (Brennan, J., dissenting) (arguing that the Court should consult tradition for general notions not specific questions). 40 Cf. Bowers v. Hardwick, 478 U.S. 186, (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003), with Lawrence v. Texas, 539 U.S. 558, 562 (2003). 41 FISHER, supra note 29, at 33. 9

11 recently by President Obama s submission to Congress a plan to reform the No Child Left Behind Act, this tradition has continued through each subsequent presidential administration. 42 During this time, Presidents have initiated numerous pieces of legislation. 43 History further reveals that the lawmaking relationship between Congress and the President has only become more complicated because over time, presidential involvement in lawmaking has increased to the extent that Congress no longer dominates the process. 44 For instance, White House officials are now commonly involved in legislative deliberations over statutory language. 45 Congress receives hundreds of reports, messages, communications, and suggestions for legislation from the President, and most congressional measures are presidential ideas sponsored by a member of 42 See Press Release, The White House: Office of the Press Secretary, Weekly Address: President Obama to Send Updated Elementary and Secondary Education Act Blueprint To Congress on Monday (Mar. 13, 2010) available at 43 See, e.g., All States Freight, Inc. v. New York, New Haven & Hartford R.R. Co., 379 U.S. 343, (1964) (stating that certain provisions of the Interstate Commerce Act seemed to originate from President Taft s special message to Congress); Benanti v. United States, 355 U.S. 96, 104 n.14 (1957) ( The Federal Communications Act was the response to a Presidential message calling to the attention of Congress the disjointed exercise of federal authority over the formers of communication. ); Shapiro v. United States, 335 U.S. 1, 8 (1948) ( On July 30, 1941, the President of the United States, in a message to Congress, requested price-control legislation conferring effective authority to curb evasion and bootlegging. The Emergency Price Control Act subsequently emerged from Congress.); United States v. Silk, 331 U.S. 704, 710 (1947) ( The Social Security Act of 1935 was the result of long consideration by the President and Congress of the evil burdens of the insecurities of modern life, particularly old age and unemployment. ); Western Union Tel. Co. v. Lenroot, 323 U.S. 490, 492 (1945) (describing how a presidential message moved Congress to pass anti-child labor legislation); New York Cent. R.R. Co. v. Winfield, 244 U.S. 147, (1917) ( [The Federal Employers Liability Act] was drafted and passed shortly following a message from the President advocating an adequate national law covering all such injuries ). 44 See CLINTON ROSSITER, THE AMERICAN PRESIDENCY 110 (2d ed., 1960) ( [Throughout America s history, the President has functioned sort of [as] a prime minister or third House of Congress.... [H]e is now expected to make detailed recommendations in the form of messages and proposed bills, to watch them closely in their tortuous progress on the floor and in committee in each house, and to use every honorable means within his power to persuade... Congress to give him what he wanted in the first place. ). 45 Muriel Morisey Spence, The Sleeping Giant: Textualism as Power Struggle, 67 S. CAL. L. REV. 585, 604 n.97 (1994). 10

12 Congress. 46 Congress has also increasingly relied upon the Executive branch to devise and initiate national policy initiatives. 47 Thus, not only is it constitutional for courts to use executive history to interpret statutes, it is necessary for courts to consult this material in order for them to comprehend a statute s entire legislative background. III. Presidential Signing Statements The above rationale even applies to a form of executive history that is currently controversial: presidential signing statements. Signing statements are: official pronouncements issued by the President contemporaneously to the signing of a bill into law that, in addition to commenting on the law generally, have been used to forward the President s interpretation of the statutory language; to assert constitutional objections to the provisions contained therein; and, concordantly, to announce that the provisions of the law will be administered in a manner that comports with the Administration s conception of the President s constitutional prerogatives. 48 The Constitution is silent on whether the President can issue such statements. Some have nonetheless argued that these statements are unconstitutional because they provide the President with a way to reinterpret legislative statutes 49 and thus function as line-item vetoes. 50 However, 46 Dessayer, supra note 8, at 407; GEORGE B. GALLOWAY, THE LEGISLATIVE PROCESS IN CONGRESS 38 (1953) ( For most measures introduced [legislators] are merely conduits for the executive department, private organizations, and individual constituents. ). 47 Dessayer, supra note 8, at 407 ( Waiting for the President to propose legislation has become so common in modern times that members of Congress have actually begun to expect the administration to present a bill as a stating point for consideration of new policies and governmental actions. ); see also Carroll, supra note 2, at T.J. HALSTEAD, CRS REPORT FOR CONGRESS, PRESIDENTIAL SIGNING STATEMENTS: CONSTITUTIONAL AND INSTITUTIONAL IMPLICATIONS, at summary (2007), available at 49 See, e.g., Garber & Wimmer, supra note 13, at 376; Ralph W. Tarr, Constitutionality of Line- Item Veto Proposals, 9 Op. Off. Legal Counsel 28, 30 (1985) ( [U]nder the system of checks and balances established by the Constitution, the President has the right to approve or reject a piece of legislation, but not to rewrite it or change the bargain struck by Congress in adopting a particular bill. ). 50 Clinton v. City of New York, 524 U.S. 417 (1998) (invalidating the Line Item Veto Act because it was inconsistent with the Presentment Clause (Art. I, 7, cl. 2)). For more 11

13 the Constitution does say that the President shall sign legislation into law, and it does not define what signing entails. 51 Given that signed has been broadly defined in other statutory codes, 52 the President undoubtedly has a degree of flexibility as to how he signs a bill. Signing statements, therefore, cannot be unconstitutional per se because it can be said that the President is just exercising his power to sign legislation into law. Some may argue that this signing power is only a means for the President to say yay or nay on legislation and not a power to interpret a bill. The Supreme Court, though, has repeatedly recognized that the President can interpret ambiguous statutes to a certain extent. 53 Moreover, the President has multiple means of influencing government policy such as appointing administrative agency heads. 54 Signing statements are just another mean to that end. Complete judicial refusal to acknowledge signing statements and other executive history is thus an utterly arbitrary exclusion of a potentially helpful interpretative tool, especially when such exclusion does little, if anything, to restore a greater measure of congressional independence. 55 However, it is not inconceivable that a President may issue an unconstitutional signing statement such as one that interprets a statute information on the signing statements functioning as line-item vetoes argument see the articles cited in footnote U.S. CONST. art. I, See, e.g., U.C.C., 1-201(39) (amended 1990) (defining signed as any symbol executed or adopted by a party with present intention to authenticate a writing ) (emphasis added). 53 See, e.g., Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, , (1984); United States v. Mead Corp., 533 U.S. 218, 221, 235 (2001). See also Cass R. Sunstein, Beyond Marbury: The Executive s Power to Say What the Law Is, 115 YALE L.J (2006); Peter L. Strauss, Within Marbury: The Importance of Judicial Limits on the Executive s Power to Say What the Law Is, 116 YALE L.J. POCKET PART 59 (2006), available at strauss.html. 54 U.S. CONST. art. II, Cross, supra note 13, at

14 contrary to its congressional intent, 56 or plain text. Nevertheless, presidential signing statements issued in good faith and in accordance with legislative intent may help the courts or administrative agencies interpret a statute and thus should not be automatically excluded. 57 There is also a long tradition of Presidents issuing signing statements. Presidents have most often used signing statements for innocuous and ceremonial functions like generally describing a bill and their reasons for signing it, praising the bill s congressional supporters or criticizing a bill s shortcomings. 58 Presidents, though, began using signing statements for more substantive purposes as early as the Monroe Administration, which, one month after signing legislation that prescribed how the White House should appoint military officials, issued a statement saying that the President alone had the constitutional responsibility to appoint military officers. 59 Similarly, in 1830, President Jackson used a signing statement to restrict the scope of an appropriations bill for the construction of a road between Detroit and Chicago; Jackson insisted that the road at issue was not to extend beyond Michigan. 60 This tradition continued up to and after the turn of the century with Presidents Tyler, Lincoln, Andrew Johnson, Grant, 56 Bowsher v. Synar, 478 U.S. 714, 733 (1986) ( Interpreting a law enacted by Congress to implement the legislative mandate is the very essence of execution of the law. ) (emphasis added); see also Part IV of this Article: Executive History s Hierarchy, infra (discussing how legislative intent trumps executive). 57 WILLIAM N. ESKRIDGE, JR., PHILIP P. FRICKEY, & ELIZABETH GARRETT, CASES AND MATERIALS ON LEGISLATION, STATUTES AND THE CREATION OF PUBLIC POLICY 1045 (4th ed. 2007); see generally Curtis A. Bradley & Eric A. Posner, Presidential Signing Statements and Executive Power, 23 CONST. COMMENTARY 307 (2006) (arguing in favor of judicial use of presidential signing statements). 58 Neil Kinkopf, Signing Statements and the President s Authority to Refuse to Enforce the Law 5 (June 15, 2006), available at Jun% Advance%20Vol%201.pdf; Bradley & Posner, supra note 57, at AMERICAN BAR ASSOCIATION, TASK FORCE ON PRESIDENTIAL SIGNING STATEMENTS AND THE SEPARATION OF POWERS DOCTRINE RECOMMENDATION 7 (2006) [hereinafter ABA Task Force] available at recommendation-report_ pdf. 60 Id. 13

15 Theodore Roosevelt, Wilson and FDR all issuing signing statements. 61 President Grant also seems to be the architect of a signing statement technique that beginning in the twenty century, future presidents would frequently employ: interpreting a bill in a manner that would overcome the Presidential constitutional concern. 62 However, these statements became staples of presidential business after the New Deal as every President since FDR, including President Obama, 63 has issued them. 64 For example, President Truman, when signing the Portal to Portal Act, employed a signing statement to define the term, compensable labor, in a manner that benefited organized labor. 65 Signing statements have also been used since the Eisenhower Administration to object to the legislative veto provisions that Congress has placed in bills 66 both before and after the Supreme Court deemed these veto provisions unconstitutional in Moreover, the post-new Deal Presidents began issuing signing statements more frequently. This quantitative increase began with Truman, who averaged about sixteen signing statements a 61 Id. at 7-9; Memorandum on the Legal Significance of Presidential Signing Statements from Walter Dellinger, Assistant U.S. Attorney General, to Bernard N. Nussbaum, Counsel to the President (Nov. 3, 1993) [hereinafter Dellinger Memo] available at 62 ABA Task Force, supra note 59, at List of Signing Statements Issued by Barack Obama, listbhoall.htm (last visited Apr. 16, 2010); see also Charlie Savage, Obama s Embrace of a Bush Tactic Riles Congress, N.Y. TIMES, Aug. 8, 2009 at A ABA Task Force, supra note 59, at 8-18; Dellinger Memo, supra note ABA Task Force, supra note 59, at 9. The courts later accepted President Truman s interpretation. See, e.g., Cole v. Farm Fresh Poultry, Inc., 824 F.2d 923, 928 (11th Cir. 1987); EEOC v. Home Ins. Co., 672 F.2d 252, (2d Cir. 1982); Clifton D. Mayhew, Inc. v. Wirtz, 413 F.2d 658, (4th Cir. 1969). 66 ABA Task Force, supra note 59, at 9; Note, Omnibus Appropriations Act, 2009 President Obama Issues First Constitutional Signing Statement, Declares Appropriations Bill Provisions Unenforceable, 123 HARV. L. REV. 1051, 1055 (2010); see also Statement on Signing the Department of the Interior and Related Agencies Appropriations Act, 2004, 39 Weekly Comp. Pres. Doc (Nov. 10, 2003); Chadha, 462 U.S. at 970 n.5 (White, J., dissenting) (noting that Presidents have objected to and supported the legislative veto). 67 Chadha, 462 U.S

16 year, 68 and seems to have peak with the second Bush Administration, which issued about 800 signing statements. 69 It was this high use of signing statements by President Bush, particularly those in which he asserted constitutional prerogatives about presidential power that generated the current controversy. 70 Congress, for instance, overwhelmingly passed an amendment to the Defense Department s 2006 Appropriation Act in 2005 that prohibited the federal government from torturing detainees. In the signing statement that accompanied this amendment, President Bush reserved the right to ignore this law whenever it conflicted with his Commander in Chief powers under Article II, Section 2 of the Constitution. 71 This statement reignited the debate about signing statements that began during the Reagan years. 72 Congress subsequently attempted to limit the impact of signing statements in 2006 and 2007 through legislation and resolutions. 73 Additionally, an ABA task force studying signing statements found presidential use of such statements to be contrary to the rule of law and our constitutional system of separation of 68 HALSTEAD, supra note 48, at ABA Task Force, supra note 59, at See id. at 15. For a list of President Bush s more high profile signing statements see List of Signing Statements Issued by George W. Bush, listgwball.htm (last visited Apr. 16, 2010); see also Charlie Savage, Examples of the President s Signing Statements, THE BOSTON GLOBE, Apr. 30, 2006 available at s_signing_statements/. 71 Statement of President George W. Bush on the Signing of H.R. 2863, 2005 U.S.C.C.A.N. S50 (Dec. 30, 2005). 72 Nicholas J. Leddy, Note, Determining Due Deference: Examining When Courts Should Defer to Agency Use of Presidential Signing Statements, 59 ADMIN. L. REV. 869, 870 (2007). 73 H.R. 5486, 109th Cong. (2d Sess. 2006); S. 3731, 109th Cong. (2d Sess. 2006); H.R. 264, 110th Cong. (1st Sess. 2007); S. Res. 22, 110th Cong. (2007); see also Debra Cassens Weiss, Senator Vows Action on Signing Statements, ABA JOURNAL, June 20, 2007, (last visited Apr. 16, 2010); Martha Neil, Spector Tries to Rein in Signing Statements, ABA JOURNAL, July 3, 2007, statements/ (last visited Apr. 16, 2010). 15

17 powers, 74 a conclusion that the ABA itself formally adopted. 75 Signing statements were even an issue in the 2008 presidential election. 76 While President Obama still issues signing statements, the above controversy lead him to proclaim that he will exercise greater restraint than his predecessors when issuing signing statements. 77 However, the idea that signing statements should be systematically included in a statute s legislative history for judicial interpretative purposes was the Reagan Administration s brainchild. Before Reagan, Presidents, unlike Congress, [did] not customarily comment on their understanding of bills. 78 The Reagan Administration bucked this tradition because given the President s constitutionally mandated role in the lawmaking process, it seem[ed] to follow that the President s understanding of [a] bill should be just as important as that of Congress. 79 Interpretative signing statements thus provided a way for the Administration to advance the President s rightful place in the interpretation of legislation by preserving presidential intent for future judicial use. 80 These statements also served as a way to increase the President s power to shape the law and potentially counteract the prevalent abuse of legislative history ABA Task Force, supra note 59, at See Press Release, American Bar Association, ABA Adopts New Policy on Presidential Signing Statements, Attorney-client privilege and Inspector General for the Federal Judiciary (Aug. 8, 2006), (last visited Apr. 16, 2010). 76 Savage, supra note Supra note 63; Press Release, Barack Obama, U.S. President, Memorandum on Presidential Signing Statements for the Heads of Executive Departments and Agencies (Mar. 9, 2009) available at (explaining President Obama s policy on signing statements). 78 Memorandum from Samuel A. Alito, Jr., Deputy Assistant Attorney General, Office of Legal Counsel, to The Department of Justice s Litigation Strategy Working Group (Feb. 5, 1986) available at news/samuel-alito/accession /acc box6-sg-lswg-alitotolswg-feb1986.pdf [hereinafter Alito Memo]. 79 Id. 80 Id. 81 Id. 16

18 Accordingly, the Administration entered into an arrangement with West Publishing Company to have presidential signing statements published 82 in the U.S. Congressional and Administrative News for the first time. 83 IV. Executive History s Hierarchy While judicial use of executive history to interpret statutes has not occurred at the level envisioned by the Reagan Administration, 84 such reliance has occurred, even by the most ardent foe of judicial use of legislative history in general: Justice Antonin Scalia. 85 This practice, as shown above, is not only constitutional but also important because as a practical matter, the judiciary should not restrict their investigation into a statute s legislative background. Statutes, as Justice Felix Frankfurter noted, are organisms which exist in their environment. [ ] If the purpose of [statutory] construction is the ascertainment of meaning, nothing that is logically 82 Executive documents are published in a variety of other sources. See Dessayer, supra note 8, at Garber & Wimmer, supra note 13, at 367 (citing Attorney General Edwin Meese, III. s Address to the National Press Club, Washington D.C. (Feb. 25, 1986) ( To make sure that the President s own understanding of what s in a bill is the same... or is given consideration at the time of statutory construction later on by a court, we have now arranged with the West Publishing Company that the presidential statement on the signing of a bill will accompany the legislative history from Congress so that all can be available to the court for future construction of what the statute really means. )). 84 HALSTEAD, supra note 48, at 21; see also ESKRIDGE ET AL., supra note 57, at See, e.g., Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111 (1974); United States v. Perlaza, 439 F.3d 1149, 1163 (9th Cir. 2006); United States v. Gonzales, 311 F.3d 440, 443 & n.2 (1st Cir. 2002); United States v. Story, 891 F.2d 988, 994 (2d Cir. 1989) ( [T]hough in some circumstances there is room for doubt as to the weight to be accorded a presidential signing statement in illuminating congressional intent,... President Reagan s views are significant here because the Executive Branch participated in the negotiation of the compromise legislation. ); Barry v. Dep t of Justice, 733 F.2d 58, (4th Cir. 1984) (citing President Johnson s signing statement about the Freedom of Information Act s goals); see also Cited Cases, supra note 65. Justice Scalia has referenced executive history in at least two cases: Hamdan v. Rumsfeld, 548 U.S. 557, 666 n.5 & accompanying text (Scalia, J., dissenting) (2006); Center for Auto Safety v. Peck, 751 F.2d 1336, 1368 (D.C. Cir. 1985); see also Charlie Savage, Scalia s Dissent Gives Signing Statements More Heft, THE BOSTON GLOBE, July 15, 2006, available at ng_statements_more_heft/. 17

19 relevant should be excluded. 86 The courts would otherwise be blindly interpreting statutes, i.e., without a comprehensive understanding of a bill s entire legislative background. However, given the heavy caseload of the courts, it is not feasible to expect them to examine every piece of the statutory interpretation puzzle, especially when some puzzle pieces are more authoritative and reliable than others. Clear and unambiguous statutory text, for instance, ends judicial inquiry into a statute s meaning because the courts must give effect to the unambiguously expressed intent of Congress. 87 Courts only need other sources to resolve statutory ambiguities. The next section of this Article is thus an attempt to organize one of these other sources, executive history, for easier judicial use. A. Legislative History Trumps Executive History First, as mentioned above, there is no existing hierarchy that ranks the various types of executive history materials courts can use to interpret a statute. The current legislative history hierarchy merely treats Nonlegislator Statements as a block that is located towards the bottom of the pecking order in terms of its authoritative value in the statutory interpretation process. 88 This low ranking of executive history overall is correct because the Constitution is neither silent nor equivocal about who shall make the laws which the President is to execute. 89 Article I, 86 Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 541 (1947); see also Population Institute v. McPherson, 797 F.2d 1062, 1069 (D.C. Cir. 1986) ( The purpose and function of looking at legislative history of a statute is to find out what Congress meant by its enactment. [There are many pieces] in the puzzle of discerning legislative intent. The main pieces are, of course, the actual words that Congress chose to express its intention... [T]he key to legislative history is that while many elements represent pieces in the puzzle, no one piece-no matter how clear and unequivocal-is alone dispositive. ). 87 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, (1984). 88 ESKRIDGE, supra note 15, at Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952). 18

20 Section 1 plainly and absolutely vests All legislative powers herein granted in Congress. 90 The Constitution, by comparison, does not use the absolute qualifying word, all, when it vests the executive power in the President 91 and the judicial power in the courts. 92 Additionally, one of Congress herein granted powers is the power [t]o make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof. 93 The President, as previously discussed, is constitutionally instructed to be involved in the lawmaking process and, due largely to the veto power, 94 wields undeniably extensive, effective and persuasive influence over it. Presidential involvement, though, does not change the fact that the President is the constitutional law-enforcer, 95 not a constitutional lawmaker. 96 Congress constitutional supremacy over the latter is perhaps best illustrated by the fact that the President s most influential legislative tool, the veto, is a qualified one because the Constitution expressly enables Congress to override vetoes. 97 Although it is difficult for Congress to exercise its veto override power, the Supreme Court has stated that efficiency, convenience, and usefulness do not change constitutional facts. 98 Moreover, the Framers entertained the idea of giving the President an absolute veto, but fears that the President 90 U.S. CONST. art. I, 1 (emphasis added). 91 Id. at art. II, Id. at art. III, Id. at art. I, 8 (emphasis added). 94 Dessayer, supra note 8, at 409 (describing how the mere possibility of a veto threat is usually enough to cause Congress to consult the President on legislation). 95 U.S. CONST. art. II, 3 ( [The President] shall take care that the laws be faithfully executed. ). 96 Youngstown Sheet & Tube Co., 343 U.S. at 587 ( [T]he President s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. ). 97 U.S. CONST. art. I, See Chadha, 462 U.S. at 944 ( [T]he fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution. Convenience and efficiency are not the primary objectives or the hallmarks of democratic government. ). 19

21 would then have too much power ultimately caused them to reject this idea. 99 Benjamin Franklin s experience with the Pennsylvania Governor s abuse of his absolute veto was particularly instrumental in defeating proposals at the Constitutional Convention to give the President an absolute veto. The [absolute] negative of the [Pennsylvania] Governor was constantly made use of to extort money. No good law whatever could be passed without a private bargain with him. An increase of his salary, or some donation, was always made a condition; till at least it became the regular practice, to have orders in his favor on the Treasury, presented along with the bills to be signed, so that he might actually receive the former before he should sign the latter. When the Indians were scalping the western people, and notice of it arrived, the concurrence of the Governor in the means of self-defense could not be got, till it was agreed that his Estate should be exempted from taxation. so [sic] that the people were to fight for the security of his property, whilst he was to bear no share of the burden. This was a mischievous sort of check. 100 Thus, with regard to lawmaking, the constitutional fact is that Congress was deliberately given the final word in the legislative process because if a veto is overridden, the formerly vetoed bill becomes law. 101 Congress, though, does not need to exercise a veto override to counter presidential influence over the lawmaking process. Comity and politics often force compromise, and as a result, the final product that emerges from Congress usually diverges from what the President intended but not far enough to warrant a veto. 102 The final legislative product then 99 1 THE RECORDS OF THE FEDERAL CONVENTION OF (M. Ferrand ed. 1966), available at 128&itemLink=r%3Fammem%2Fhlaw%3A%40field%28DOCID%2B%40lit%28fr0012%29%2 9% &linkText= Id. at U.S. CONST. art. I, 7; see also Curtis J. Mahoney, Note, Treaties as Contracts: Textualism, Contract Theory, and the Interpretation of Treaties, 116 YALE L.J. 824, 837 (2007) ( In the Article 1, Section 7 context, the legislature controls what terms are inserted into a bill. ). 102 See BARBARA SINCLAIR, UNORTHODOX LAWMAKING: NEW LEGISLATIVE PROCESSES IN THE U.S. CONGRESS 1, 3 (3d ed. 2007) (stating that the versions of the Clean Air Act initially signed by President Nixon in 1970, and again by President H.W. Bush when the act was amended in 1990, were far or considerably stronger than what each President wanted). 20

22 disproportionately reflects congressional intentions in spite of the fact that Congress and the President are jointly involved in the lawmaking process. 103 Thus, despite the White House s overarching role in the legislative process, Congress is the constitutionally supreme lawmaker. The courts, accordingly, cannot give executive and legislative histories equal authoritative weight when interpreting statutes. Congress constitutional supremacy in the lawmaking process consequently renders the interpretative authority of executive history below that of legislative history. Therefore, just as the President cannot implement a statute in a manner contrary to its legislative mandate, 104 the courts could not use executive history to interpret a statute contrary to its legislative intent. 105 Judicial use of 103 See Youngstown Sheet & Tube Co., 343 U.S. at (Jackson, J., concurring) ( When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he posses in his own right plus all that Congress can delegate. [ ] When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than abstract theories of law. [ ] When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. ). 104 See Bowsher, 478 U.S. at Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 608 (1979) ( [I]n all cases of statutory construction, our task is to interpret the words of [the statute] in light of the purposes Congress sought to serve. ); Koerner v. Colonial Bank (In re Koerner), 800 F.2d 1358, 1364 (5th Cir. 1986) ( The cardinal purpose of a court in construing statutes is to determine the intent of Congress. ); see also Richard A. Posner, Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution, 37 CASE W. RES. L. REV. 179, 190 (1986) ( Judges should ask themselves the same type of question when the orders they receive from the framers of statutes and constitutions are unclear: what would the framers have wanted us to do in this case of failed communication ); Patrick O. Gudridge, Legislation in Legal Imagination: Introductory Exercises, 37 U. MIAMI L. REV. 493, 499 (1983) ( Legislative intent provides the unifying principle for the traditional system. The plain meaning rule, maxims of construction, references to legislative history, all such forms of analysis find their justification as 21