In 1968, Richard Nixon campaigned for president claiming to have a secret plan to end the war in Vietnam. With the war still continuing in 1971, Congress included in the Military Procurement Authorization Act the "Mansfield Amendment" urging President Nixon to establish a "final date" for the withdrawal of all U.S. forces from Indochina, subject only to the release of U.S. prisoners of war and an accounting for the missing in action. The President wasn't at all happy about this amendment but signed the bill into law anyway. His signing message included the following statement:
"Section 601 [the "Mansfield Amendment"] expresses a judgment about the manner in which the American involvement in the war should be ended. However, it is without binding force or effect, and it does not reflect my judgment about the way in which the war should be brought to a conclusion. My signing of the bill that contains this section, therefore, will not change the policies I have pursued and that I shall continue to pursue toward this end."
Did the President's declaration having any legal effect? U.S. District Court Judge John Francis Dooling Jr. thought not:
"There can be no doubt that so far as they go Sections 401 [P.L. 92-129, 85 Stat. 360] and 601 [P.L. 92-156, 85 Stat. 430] are law. When the bill embodying Section 601 was passed by the Congress and approved by the President's signature it established 'the policy of the United States' to the exclusion of any different executive or administration policy, and had binding force and effect on every officer of the Government, no matter what their private judgments of that policy, and illegalized the pursuit of an inconsistent executive or administration policy. No executive statement denying efficacy to the legislation could have either validity or effect.
As noted in Sunday's post, Governor Brown included a signing message with his approval of SB 826, California's new board gender quota law. I took a look at the case law and quickly found several examples of California courts citing gubernatorial signing messages. See, e.g., Gerawan Farming, Inc. v. Agricultural Labor Relations Bd., 3 Cal. 5th 1118, 1132 (2017) and Arias v. Kardoulias, 207 Cal. App. 4th 1429, 1435 (2012).
But why cite the signing message? Although it seems to me that a signing message isn't legislative history (the legislature has already done its thing), at least one California Court of Appeal has characterized a gubernatorial signing message as legislative history. Nguyen v. Nguyen, 158 Cal. App. 4th 1636, 1660 (2008).
Governor Brown's acknowledgement of the potential constitutional infirmities of SB 826 may well make it into case law. When President Franklin Roosevelt signed the Urgent Deficiency Appropriation Act of 1943, he declared:
"The Senate yielded, as I have been forced to yield, to avoid delaying our conduct of the war. But I cannot so yield without placing on record my view that this provision is not only unwise and discriminatory, but unconstitutional."
H. Doc. 264, 78th Cong., 1st Sess. Ultimately, the U.S. Supreme Court concurred in United States v. Lovett, 328 U.S. 303, 313 (1946).
For an analysis of judicial use of presidential signing statements, see John de Figueiredo and Edward H. Stiglitz, Signing Statements and Presidentializing Legislative History, 69 Administrative Law Review 841 (2017).