Signing Statements and Presidentializing Legislative History

Presidents often attach statements to the bills they sign into law, purporting to celebrate, construe, or object to provisions in the statute. Though long a feature of U.S. lawmaking, the President has avowedly attempted to use these signing statements as tool of strategic influence over judicial decisionmaking since the 1980s — as a way of creating “presidential legislative history” to supplement and, at times, supplant the traditional congressional legislative history conventionally used by the courts to interpret statutes. In this Article, we examine a novel dataset of judicial opinion citations to presidential signing statements to conduct the most comprehensive empirical examination of how courts have received presidential legislative history to date. Three main findings emerge from this analysis. First, contrary to the pervasive (and legitimate) fears in the literature on signing statements, courts rarely cite signing statements in their decisions. Second, in the aggregate, when courts cite signing statements, they cite them in predictably partisan ways, with judges citing Presidents’ signing statements from their own political parties more often than those of the opposing parties. This effect, however, is driven entirely by the behavior of Republican-appointed appellate jurists. Third, courts predominately employ signing statements to buttress aligned statutory text and conventional sources of legislative history, and seemingly never rely on them to override contrary plain statutory text or even unified traditional legislative history. This suggests that signing statements have low rank among interpretative tools and courts primarily use them to complement rather than substitute for congressional legislative history. In this sense, Presidents have largely failed to establish an alternative corpus of valid interpretive material.

Are Russian Courts Capable of Creating Precedents? Overcoming Inconsistency in Case Law

This article discusses the issue of the consistency of judicial decisions in two of Russia’s highest courts: the Supreme Court and the Higher Arbitrazh Court. The President of the latter has been especially vocal in advocating for the “introduction of the doctrine of precedent into Russian law”. This idea, understood as the power to bind lower courts by judgments in individual cases, has even received support from the RF Constitutional Court. However, this article stresses that before discussing whether there may—or may not—be a place for judicial precedent in Russia, the judgments of the two highest courts must be consistent. We examine one particular issue that lends itself to a number of possible solutions: the judicial review of internal circulars from federal bodies of executive power. The case law of the two courts has been marked by U-turns in dealing with this matter. They sometimes have issued completely different judgments in similar cases over a short period of time, while failing to explain why their rulings differ from earlier judgments. The author of the present article argues that this inconsistency gives witness to a number of fundamental flaws in judicial decisionmaking in Russia and undermines any discourse in support of precedent in Russia.