Rodriguez, Stiglitz & Weingast on Presidential Signing Statements and Separation of Powers (AdLaw Bridge Series)

by Chris Walker — Monday, July 27, 2015@chris_j_walker

In my survey of federal agency rule drafters, I decided to ask a question about the role of presidential signing statements in agency statutory interpretation. In particular, I included a list of nine types of legislative history and asked: “For each of the following, please tell us if the type of legislative history is a (VR) very reliable source, a (SR) somewhat reliable source, or not a (NR) reliable source for agencies (and courts) to use in resolving questions about statutory ambiguities or statutory implementation.”

Despite the wording of the question, I didn’t mean to imply that signing statements are actually legislative history. I agree with what one agency official stated in responding to the survey: “Pres signing statements may shape what agencies do, as reflective of the policy choice of the administration, but I don’t view them as true leg history.” But the question seemed to fit best there among the 195 questions in the survey, as I wanted to compare how agency rule drafters rated the reliability and usefulness of presidential signing statements in agency statutory interpretation against more traditional forms of legislative history.

Here’s the breakdown of the responses, reproduced from my Stanford Law Review article (at 1044) published earlier this year:

As the figure depicts, the agency rule drafters surveyed ranked presidential signing statements somewhere in the middle in terms of reliability—less reliable than committee and conference reports but more reliable than floor statements made by anyone other than the sponsor. As I noted in the article (at 1045), one of the many complexities of principal-agent theory in the modern administrative state is that the bureaucratic agent serves at least two principals: Congress and the President. To ask just one question on presidential signing statements does not even scratch the surface in understanding the role of the President as another principal in agency statutory interpretation. Much more work needs to be done.

Enter a terrific new paper by Dan Rodriguez, Jed Stiglitz, and Barry Weingast, entitled Executive Opportunism, Presidential Signing Statements, and the Separation of Powers. Here’s a summary of the paper from the abstract (draft of paper available here):

Executive discretion over policy outcomes is an inevitable feature of our political system. However, in recent years, the President has sought to expand his discretion through a variety of controversial and legally questionable tactics. Through a series of simple separation of powers models, we study one such tactic, employed by both Democratic and Republican presidents: the use of signing statements, which purport to have status in the interpretation of statutory meaning. Our models also show that signing statements upset the constitutional vision of lawmaking and, in a wide range of cases, exacerbate legislative gridlock. We argue that courts should not legally credit signing statements; we conclude by discussing executive opportunism broadly.

This paper is a really fun read, especially the positive model they advance for understanding the effect of signing statements on the legislative process. The paper also explores how the use of signing statements—and executive opportunism more generally—affects all three branches. For instance, one normative conclusion they draw from the model (at 29) is that signing statements generally should get no Chevron deference, even if they are incorporated into agency statutory interpretations. This seems to be in tension with then-Professor Elena Kagan’s view in Presidential Administration, 114 Harv. L. Rev. 2245, 2375 (2001), that “would link [Chevron] deference in some way to presidential involvement.” By contrast, my colleague Peter Shane has argued that if the President has steered an agency away from its preferred interpretation of a statute a court should not only refuse Chevron deference but remand the case to the agency for further consideration.

Although Rodriguez, Stiglitz, and Weingast explore via their model how presidential signing statements affect the President, Congress, and the courts, I’m left even more curious about how such statements affect the regulators. As the authors note when discussing agency interpretations that are influenced by signing statements (at 29), “the matter is complicated by practical, but not by theoretical, considerations. The practical difficulty is that agencies will likely not be forthcoming about whether their interpretation of the statute is rooted in a signing statement. More likely, they will present the interpretation as derived natively.” If the regulators are a primary audience for presidential signing statements and actually pay attention to them (which I think they do based on my own empirical work), it seems like the real effect of signing statements on the modern administrative state cannot be assessed by looking solely at courts, Congress, and the President. Yet I tend to agree that in practice it is difficult to assess the effect of signing statements on the regulators themselves.

In all events, Rodriguez, Stiglitz, and Weingast help us take an important step forward in understanding the role of signing statements in the legislative and regulatory process. I look forward to future work in this vein.

@chris_j_walker

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About Chris Walker

Christopher Walker is a law professor at The Ohio State University Moritz College of Law. Prior to joining the law faculty, Professor Walker clerked for Justice Anthony Kennedy of the U.S. Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice. His publications have appeared in the Michigan Law Review, Minnesota Law Review, Stanford Law Review, and University of Pennsylvania Law Review, among others. Outside the law school, he serves as one of forty Public Members of the Administrative Conference of the United States and on the Governing Council for the American Bar Association’s Section on Administrative Law and Regulatory Practice. He blogs regularly at the Yale Journal on Regulation.

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