Posted by Orin Kerr:
Kinkopf on Signing Statements:
http://volokh.com/archives/archive_2009_03_15-2009_03_21.shtml#1237309850
Over at the [1]Executive Watch blog, Georgia State lawprof and former
OLC lawyer [2]Neil Kinkopf has a post disagreeing with co-blogger
[3]Eric Posner's suggestion that signing statements don't really
matter.
My own take is sort of a middle ground. On one hand, I agree with
Eric that signing statements themselves have no legal effect, and
therefore don't matter outside the executive branch. On the other
hand, an Administration that issues them in public is probably acting
on them in private (or will, if the relevant facts are presented). As
I see it, signing statements are sort of like "[4]present sense
impressions" allowed as exceptions to the hearsay rule: Sure, we don't
know with certainty that the person is being truthful, but it's more
likely that the person is fairly representing the state of his mind or
his understanding in that setting than in other ones.
Put another way, signing statements are indirect public evidence of
a particular view of presidential power. The implicit constitutional
arguments made by signing statements are therefore reasonably helpful
evidence as to what an Administration is doing on matters not revealed
to the public.
References
1. http://executivewatch.net/2009/03/17/signing-statements-redux/
2. http://law.gsu.edu/directory/kinkopf
3. http://volokh.com/archives/archive_2009_03_08-2009_03_14.shtml#1237057093
4. http://en.wikipedia.org/wiki/Present_sense_impression
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