Legal Commentary

The Supreme Court and Presidential Signing Statements: United States v. Stevens

By John Elwood

One of the things that struck me during the kerfuffle about presidential signing statements during the Bush Administration was the widely held belief that presidential signing statements were immediately and consistently implemented throughout the Executive Branch. In my experience, signing statements are typically used simply to ?lay down a marker? with Congress by saying where the Executive Branch perceives the limits of legislation to be, but that statutes that are the subject of such signing statements overwhelmingly are implemented as written rather than under some limiting construction suggested by the signing statement.  In my experience, agencies intentionally implement a statute as written, but sometimes, it occurs by administrative inertia and oversight.

The Supreme Court?s opinion in United States v. Stevens today gives one example of that.  18 U.S.C. § 48 criminalizes the commercial creation, sale or possession of ?a depiction of animal cruelty,? defined as a depiction ?in which a living animal is intentionally maimed, mutilated, tortured, wounded or killed? if the conduct violates federal or state law where the creation, sale or possession takes place. As the opinion notes on page 18, President Clinton issued the following signing statement.

Concerns were raised, however, during congressional consideration of H.R. 1887 that its application in certain contexts may violate the First Amendment of the Constitution. It is important to avoid constitutional challenge to this legislation and to ensure that the Act does not chill protected speech. Accordingly, I will broadly construe the Act?s exception and will interpret it to require a determination of the value of the depiction as part of a work or communication, taken as a whole. So construed, the Act would prohibit the types of depictions, described in the statute?s legislative history, of wanton cruelty to animals designed to appeal to a prurient interest in sex. I will direct the Department of Justice to enforce the Act accordingly.

As OLC has noted, ?[s]igning statements have frequently expressed the President?s intention to construe or administer a statute in a particular manner (often to save the statute from unconstitutionality), and such statements have the effect of binding the statutory interpretation of other executive branch officials.?  The Legal Significance of Presidential Signing Statements, 17 Op. O.L.C. 131, 132 (1993) (emphasis added). 

But that is not what happened in Stevens, where the videos in question were not fetish films ?designed to appeal to a prurient interest in sex? but dogfighting videos. As the Court noted, ?No one suggests that the videos in this case fit? the description set forth in President Clinton?s signing statement.  I don?t think that President Clinton?s signing statement was ever embodied in any directive to U.S. Attorneys, and in the absence of an explicit directive, it was simply implemented without the President?s narrowing interpretation.

As I?m fond of saying, this is another illustration of why they call it ?Unitary Executive Theory.?  Like much government action, this may simply represent a special application of ?Hanlon?s Razor? (which is, I might add, an uncharitable statement of the idea). 

For signing statement junkies, more after the jump.

As an aside, I am aware of GAO?s report that looked at a small sample of provisions that had been the subject of signing statements and concluded that 9 had been ?execute[d] . . . as written? and the other 9 were not executed as written. GAO said it ?could not concude that agency noncompliance was the result of the President?s signing statements.? My review of the instances led me to conclude that several stemmed from inefficiency (e.g., reporting something in 38 days instead of the statutorily required 21 days; FEMA?s failure to implement certain provisions within 14 months) or good-faith efforts to implement statutes that didn?t jibe well with facts on the ground (e.g., rather than moving Customs checkpoints every 7 days, as required by statute, DHS closed them periodically because the agency apparently used stationary checkpoints). 

Several instances cited in the GAO report involved the well established government practice of notifying congressional committees and waiting for objections (which usually don?t materialize), rather than seeking their approval, when required by statute (which is problematic under INS v. Chadha, 462 U.S. 919 (1983)).  The GAO?s sample strikes me as high; I?m not sure if the GAO sample was chosen randomly, or whether the number is sufficiently large for its findings to be statistically significant.

Full post as published by The Volokh Conspiracy on April 20, 2010 (boomark / email).