Savage's Pet Project

Monday, July 17, 2006

Savage's Pet Project

Over the weekend, Kevin Drum linked to this article in The Boston Globe noting that, in his Hamdan dissent, Justice Antonin Scalia
[I]ncluded the text of Bush's signing statement on the law. In the statement, Bush instructed government lawyers to file briefs arguing that the new law stripped courts of the power to hear "existing" detainee lawsuits, although the text of the law did not say it was meant to apply retroactively.
I realize that Charlie Savage, the Globe reporter who wrote this article, pretty much broke the entire "signing statement" story, for which he deserves credit.

But if Savage is going to be the point-man on all things signing statement, it behooves him to actually read Scalia's dissent [PDF] rather than simply searching for the phrase "signing statement" and then writing a misleading article based on the fact that the phrase appeared.

As anyone writing anything about Scalia's views ought to know, he is no fan of using legislative history to interpret a statute's meaning because it is unreliable - a fact that was amply demonstrated by the stunt recently pulled by Sens. Graham and Kyl.

In his dissent, Scalia attacks the majority for relying on floor statements and drafting history while making his point that "the language of the statute that was actually passed by both Houses of Congress and signed by the President is our only authoritative and only reliable guidepost." It is in the context of making this point that he notes that, while the majority relied on floor statements and whatnot to bolster its decision, it notably did not cite Bush's "signing statement" on the bill in trying to determine its meaning, primarily because Bush's view was exactly the opposite of what the majority ruled.

Scalia writes
And at least one opponent of the DTA unmistakably expressed his understanding that it would terminate our jurisdiction in this very case.
He then reprints Bush's statement in the footnote.

Given that Scalia doesn't view legislative history as a reliable source of information, it stands to reason that he probably doesn't view "signing statements" as any more valid. And given the context in which he cites Bush's signing statement, that does not seem to be an unreasonable inference.

Scalia was basically accusing the majority of hypocrisy - not giving weight to signing statements.

But in his article, Savage somehow reaches exactly that conclusion
Supreme Court Justice Antonin Scalia gave a presidential signing statement significant weight in determining the meaning of a statute, marking a milestone in the debate over the Bush administration's expansion of executive power.
This is, it seems to me, a shockingly mistaken interpretation of what Scalia was actually saying.

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