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Scalia's dissent gives 'signing statements' more heft

WASHINGTON -- In his dissenting opinion to the Supreme Court's decision on Guantanamo Bay military trials earlier this month, 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.

President Bush has used signing statements on numerous occasions to assert his own interpretation of laws passed by Congress, often reserving the right to ignore certain statutes. Many legal scholars have said the signing statements should have no legal effect, because the president merely signs or vetoes laws and is not involved in writing them.

But Scalia's dissenting opinion gave Bush's signing statement on a Guantanamo-related law passed by Congress equal weight to statements by the bill's authors, suggesting that there is no legal difference between the views of Congress and the president about what a law means.

At issue was a December 2005 law curtailing the rights of Guantanamo detainees to file lawsuits. The Supreme Court's majority ruled that the law applied only to future cases, so that existing suits could go forward. But in his dissent, Scalia scolded the majority, saying it had selectively cited bits of the act's legislative history to support its view and downplayed contrary evidence -- including the signing statement Bush issued on Dec. 30, 2005.

``Of course in its discussion of legislative history the court wholly ignores the president's signing statement, which explicitly set forth his understanding that the [Detainee Treatment Act] ousted jurisdiction over pending cases," Scalia wrote.

In a footnote, Scalia also included 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.

Scalia's dissent was joined by Justices Clarence Thomas and Samuel A. Alito Jr. , making three justices who endorsed Bush's signing statement as relevant to a discussion of the law's legislative history.

Presidents have been issuing signing statements regularly since the mid-1980s, but their legal weight has remained unclear because courts have seldom discussed them. Against that sparse history, Phillip Cooper, a government professor at Portland State University, said Scalia's citation to Bush's statement in a Supreme Court opinion stood out.

``It's extremely rare to see any reference in any court to a signing statement," Cooper said.

Signing statements were virtually undiscussed outside the executive branch until six months ago, when Bush attached one to a new torture ban, asserting that he had the constitutional authority, as commander in chief, to allow the CIA to violate the ban in order to protect national security.

A subsequent review of Bush's other signing statements showed that he had quietly challenged more than 750 statutes enacted since he took office -- more than all previous presidents combined. The attention paid to signing statements soared, including a recent Senate Judiciary Committee hearing and an ongoing probe by an American Bar Association task force.

Bruce Fein , a former Justice Department official under President Reagan who is a member of the bar group's task force, called Scalia's citation of Bush's signing statement ``significant."

``This shows that the Supreme Court is alert to this dispute -- that the Supreme Court reads the newspapers," Fein said. ``The court is influenced by the surrounding events and debates between the Congress and the president and in the media over these assertions of power."

Legal specialists also noted that Alito was among the justices who backed Scalia's citation to a signing statement. In 1986, 20 years before Bush put him on the Supreme Court, Alito helped pioneer the strategy of using signing statements as a way to increase the power of the White House.

In a 1986 memo that surfaced last year amid his confirmation fight, Alito -- then an official in the Reagan administration -- wrote that presidents should use signing statements to record their own interpretations about the meaning of new statutes. If a question arose about a law's meaning, Alito wrote, judges could look to the statement for guidance, rather than relying solely on its legislative history.

``Since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress," Alito wrote in a memo dated Feb. 5, 1986.

He warned, however, that ``Congress is likely to resent the fact that the president will get in the last word on questions of interpretation."

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