e-commentary

High school civics classes teach us that the legislature passes laws, the executive implements laws, and the courts interpret laws.  Legislative bodies pass the laws and provide “legislative intent” that accompanies the actual language in the legislation itself.  Presidents in recent years have been trying to create “executive intent” by appending a “presidential signing order” to the legislation when it is signed.  The p.s.o. provides the Presidents spin on the legislation.  The President is giving direction to executive agencies such as Health and Human Services, Environmental Protection Agency, Occupational Safety and Health Administration, Labor, etc. to shape the interpretation of the legislation.

The various courts in the country employ a variety of tests to determine “legislative intent.”  To date, courts do not resort to “executive intent” to construe a law.  To date, law students are not taught to divine “executive intent.”  In the future, courts could be induced to resort to an analysis of the presidents twist.

The likely effect of a p.s.o is much more subtle and pernicious.  The p.s.o. directs an agency to undertake a different interpretation of a law than the legislature intended.  As an agency administers a law over the years, the agency’s interpretation becomes a generally accepted standard.  In a case, Udall v. Tallman, 360 U.S. 1, 16 (1965), the United States Supreme Court held:  “When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration.”  The same is true of the administrative regulations adopted to implement a statute.  “When the construction of an administrative regulation rather than a statute is in issue, deference is even more clearly in order.”  Thus, the p.s.o. exercises an indirect but nonetheless potent impact on the interpretation of a law.  A president who aggressively stacks the judiciary with ideologues and then redirects the interpretation of laws via p.s.o.s will have a far greater influence for many more years than an executive who merely signs legislation without comment.

There is nothing in the Constitution to incorporate the intent of the executive at any time.  Each incoming president may find it necessary to issue a series of revised presidential signing orders to reflect the current “executive intent.”  An incoming president may need to assemble a transition staff charged with redirecting the practice of the bureaucracy.  The first one hundred days of an administration may be marked not by new legislation but by new spin on extant legislation.  An incoming president could issue a report a week for each executive agency.

[Phillip J. Cooper author of By Order of the President:  the Use and Abuse of Executive Direct Action discusses presidential signing statements in more detail.]