MICHELE NORRIS, host:
From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.
ROBERT SIEGEL, host:
And I'm Robert Siegel.
Presidential power and prerogative have been big issues at the confirmation hearings of Supreme Court nominee Samuel Alito, and we're going to take a look at a small slice at those topics. We're going to focus on what are called presidential signing statements. When Alito worked for the Justice Department, he urged President Ronald Reagan to use the statement that the president made when he signed bills into law to promote a White House view of those laws. As NPR's Don Gonyea reports, signing statements have been used heavily by the current Bush administration, raising questions about the reach of executive power.
DON GONYEA reporting:
On more than 100 occasions when signing a bill into law, President Bush has also issued a statement explaining how he interprets that new law. Typically, the statement includes the line: The executive branch shall construe such provisions in a manner consistent with the president's constitutional authority. For example, the president recently included such a line when he signed the bill containing a ban on torture of detainees and prisoners in the war on terrorism.
The meaning of this language has become subject to debate, part of the power struggle between the branches of the federal government. The Supreme Court could wind up ruling on the constitutional elements of these questions, so the interpretation and significance of signing statements has become an issue in the confirmation battle over Judge Samuel Alito. Alito has, in the past, espoused broad executive branch authority to act, citing something called `unitary executive theory.' So, today, Senator Patrick Leahy, the ranking Democrat on the Judiciary Committee, put the following question to him.
Senator PATRICK LEAHY (Democrat, Vermont): Under unitary theory of government, one could argue that he has an absolute right to ignore a law that the Congress has written. How do you--what kind of weight do you think should be given to signing statements?
GONYEA: Judge Alito.
Judge SAMUEL ALITO (Supreme Court Nominee): I don't see any connection between the concept of the unitary executive and the weight that should be given to signing statements in interpreting statutes.
GONYEA: Judge Alito is associated with signing statements because he suggested using them more often when he worked for the Justice Department in the 1980s. In that era, the Reagan administration did make greater use of the statements than its predecessors but not nearly so great as the current Bush administration has done. Professor Phillip Cooper is a presidential scholar at Portland State University.
Professor PHILLIP COOPER (Portland State University): There's nothing wrong with a president and an administration expressing concern about the way a piece of legislation is written. But it's another matter when the president says, `No, I won't use the Article 1 process and simply veto the law and send it back to be redone so that it's acceptable,' but rather signs it into law anyway and declares, quite clearly and openly, that the White House does not intend to apply that law as written.
GONYEA: But the White House says it is following the law and that presidents dating back to the early 19th century have issued separate statements after bill signing. Nick Rosenkranz is an associate law professor at Georgetown University and a former lawyer at the Justice Department in this Bush administration. He says there are practical reasons for a president to make such a statement as he signs a bill into law. He says courts increasingly look at committee reports and other materials from Congress when looking at a law.
Associate Professor NICK ROSENKRANZ (Law, Georgetown University): And the executive branch has come to reason that if those things are going to be relevant in the interpretation of federal statutes so should the president's view of the meaning of the statute. So we look to committee reports to see what we think Congress might have meant when they were enacting a statute. We look to presidential signing statements to see what the president thought he was signing.
GONYEA: In the end, there may not be any votes against Alito in the Senate on the basis of his one-time advocacy of signing statements. Nonetheless, the interest these long obscure statements have generated this month is another sign of heightened suspicion between the branches, and that's a conflict likely to reach the Supreme Court more than once in the months and years ahead.
Don Gonyea, NPR News, the White House.