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In 2005, a bill that passed both houses of Congress included a prohibition on the “cruel, inhuman, or degrading treatment or punishment” of anyone in the custody of the United States. Presented to President Bush as the Detainee Treatment Act, he was authorized by art. I, � 7, of the Constitution to make one of two moves (“If he approves he shall sign it, but if not he shall return it with his Objections”) or, by inaction, to allow the bill to become law in 10 days. Bush balked at the constitutional choices. Though he signed the bill, he returned it with a so-called signing statement, declaring that he would construe the act “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 constitutional limitations on the judicial power.” We may pass the bit about the “unitary” executive, a term now in vogue but used by the founders simply to mean a one-man presidency rather than a committee (Federalist No. 90); we may equally ignore the rather impudent admonition to the judiciary. But as commander in chief, he may have thought that unconditional acceptance of the act, or inaction, could (arguably) compromise the separation of powers. A veto, on the other hand, would have imperiled provisions he desired. Other than the 10-day rule, however, there is not a constitutional middle ground between acceptance and the veto. The signing statement attempts to plow that ground. What does it achieve? This much is clear: With or without constitutional sanction, the signing statement has been a presidential tool at least since the early 19th century. In the modern era, scores of signing statements have been issued by presidents. While President Bush is not out of line with the general trend, he has outdone his predecessors by far in finding fault with hundreds of particular provisions of bills. Signing statements often have a genuine constitutional concern in which separation-of-powers doctrine figures importantly. For instance, in 1920, President Woodrow Wilson signed a merchant marine bill covered by a signing statement declaring that he would not enforce provisions deemed contrary to 32 treaties; they trespassed on his treaty-making territory. In 1971 � anticipating a current imbroglio � President Richard M. Nixon signed, but objected to, the Mansfield Amendment setting a final date for the withdrawal of U.S. forces from Indochina; it was “without binding force or effect” because it invaded his powers as commander in chief. The president may also use the signing statement simply to state how he will interpret a statute. In 1876, a river and harbor appropriations bill presented to President Ulysses S. Grant included funds he described as “works of purely private or local interest, in no sense national”; his signing statement stated that “under no circumstances will I allow expenditures upon work not clearly national.” Insofar as these interpretive statements inform executive branch officers of a particular policy of the president, they overkill: Much the same result may be achieved by internal executive order or memorandum. The difference between the veto and signing statement, of course, is that the veto kills off the bill as a whole (unless overridden) while the signing statement, to the extent the executive branch is the instrument of enforcement, actuates as practical law only those provisions favored by the current president (later presidents may take a different view). The more pressing question is the effect of the signing statement on the judiciary; that is where its bite, if any, may be felt. The claim that it is part of the legislative history of a bill, to be used by courts as other history may be used to find legislative intent, is doubtful. Legislative history in general is now in a weakened state: Justice Antonin Scalia, a leader of the school opposing the use of such material, regards it as “the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one’s friends.” Conroy v. Aniskoff, 113 S. Ct. 1562, 1567 (1993). The signing statement, moreover, appears after a bill becomes law; that comes too late to have the force of, say, a committee report. The signing statement remains a puzzle. A president unwilling to associate himself with provisions of a bill he dislikes, but equally unwilling to reject it in its entirety, may simply do nothing: The bill will become automatic law in 10 days, and he remains unsullied by apparent assent to its objectionable provisions. He may then direct his officers to execute the law “faithfully” (art. II, � 3) � according to his lights � and give such publicity to the event as he wishes. That the current chief executive has quarreled with hundreds of particular statutory provisions by means of signing statements, rather than maintaining serene indifference under the 10-day rule, may be another manifestation of his insecurity. Joseph Becker is of counsel to New York-based Becker, Glynn, Melamed & Muffly and was a founding partner of the firm.

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