Presidential Signing Statements: A Constitutional Controversy
Kari Andren–March 6, 2008
The president has attached signing statements to acts of Congress since the early 1800s, but the issue has not always garnered much attention. Historically, signing statements, appendices written by the president when he signs a bill, have been used to comment on the merits of the bill, detail how the president will direct subordinate officers to interpret the bill and/or state any sections of the bill the president finds unconstitutional and thus will not enforce (Woolley). Presidents from James Monroe onward have used signing statements-sometimes sporadically, sometimes consistently-to affect policy in a variety of ways. Beginning with Ronald Reagan, signing statements gained a fourth function-the intent that they be used as part of a bill’s history if the law were challenged in court (Nussbaum 1). Although signing statements may not be new, the prolific use of them for the latter two reasons-to declare unconstitutionality and to build presidential intent-is what has brought their use, especially in the George W. Bush administration, to the attention of scholars and the media.
A brief history of the uses of signing statements illustrates the progression of their uses from the generally accepted to the constitutionally controversial. President James Monroe issued the first signing statement in January 1822 to explain to Congress that he resolved what he saw as a confusion in a law addressing presidential appointments for filling vacancies. Monroe issued another statement in April of that year to reinforce his original statement. He wrote, in part: “The effect, therefore, of the law as to those appointments would be to legislate into office men who had been already legislated out of office, taking from the President all agency in their appointment” (Woolley). Here Monroe more assertively points out the oddity or ambiguity of the law and goes on to state how he will read it.
Andrew Jackson issued the first controversial signing statement in May 1830 when he specified that the $8,000 Congress appropriated for repairs on a road between Detroit and Chicago could not be used for any road that extended beyond the Territory of Michigan (Woolley; Halstead 5). He stated that it was his “desire” that Congress understand that his authorization allowing them to appropriate the money did not extend beyond the limits of the said Territory (Woolley). The next controversial statement came in 1842 when Zachary Tyler formally expressed his view that an apportionment bill was unconstitutional. Because of the criticism these presidents received, presidents Polk and Pierce apologized for their predecessors’ use of signing statements and noted that they grated against the tradition of simply notifying Congress of a bill’s approval (Halstead 5).
Signing statements were rarely used through the end of the 19th century and did not become common until about 1950. It seemed as if the pendulum of executive power briefly swung out via the use of signing statements as a means to reinterpret laws or judge constitutionality but then just as quickly swung back to its traditional position in the face of criticism. Presidents’ increased use began with Truman in 1945 who issued approximately 16 statements per year. A study by the Congressional Research Service notes that as the number of signing statements issued increased, so did the number of those statements voicing constitutional objections (Halstead 5-6).
Nothing in the U.S. Constitution explicitly authorizes or prohibits presidents from writing signing statements or dictates what those statements may or may not contain. Not all functions of signing statements are controversial or constitutionally antithetical, so a distinction must be made to make clear that signing statements are not altogether wrong. The first two functions-exacting praise and detailing direction of subordinates-are mainly non-controversial. First, the president may praise Congress for passing a bill he thinks is consistent with his administration’s positions or he may state what he suspects the outcome of the law’s passage will be
(Nussbaum 1). This function merely touts the positives of action on an issue the president advocates.
Second, the president has the authority to supervise the activity of subordinate officers within the executive branch. Along with his constitutional duty to ensure that “the laws be faithfully executed,” a 1986 Supreme Court case, Bowsher v. Synar, found that “interpreting a law enacted by Congress to implement the legislative mandate is the very essence of ‘execution’ of the law” (Constitution 9; Nussbaum 2). This case reinforces the president’s constitutional backing for stating his interpretation of a bill in order to direct others in the administration on how best to implement the law.
The final two functions of signing statements-using them to state unconstitutionality/ refusal to enforce parts of the law and using them as “presidential history”-present a more controversial case. Some believe that using the statements to declare how and whether legislation will be enforced is an overextension of executive power. Article I, §7 of the Constitution states:
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated….
The Constitution is clear in establishing two choices for the president regarding legislation, but signing a bill whose constitutionality is in question is not one of them. The debate over presidential signing statements, then, is most certainly fueled by the provision some scholars see as competing with the first. Article II, §3 says the president “shall take Care that the Laws be faithfully executed.” Early presidents and their advisors, though, seemed to adhere more to the first provision when deciding what action to take.
Thomas Jefferson, as George Washington’s Secretary of State, said it is the president’s duty not to sign legislation he finds inconsistent with the Constitution. He said the president’s veto power is “the shield provided by the constitution to protect against the invasions of the legislature of the rights of the Executive, of the Judiciary, of the states and state legislatures” (Nussbaum 3). Jefferson here did not consider signing a bill thought to be unconstitutional even an option. Similarly, James Madison wrote that, because he found a bill unconstitutional, he “ha[d] no option but to withhold [his] signature from it” (Nussbaum 3). Here again, Madison articulates the issue in the dichotomous way that Article I does in seeing the choice as either approving and signing or rejecting and vetoing-not a hybrid of the two.
The American Bar Association “Blue Ribbon Task Force,” charged with studying presidential signing statements, affirmed the Framers’ dichotomous choice. It urged the president to “confine any signing statements to his views regarding the meaning, purpose, and significance of bills, and to use his veto power if he believes that all or part of a bill is unconstitutional” (4). Here even modern legal scholars advocate against the use of signing statements to rule a law in part unconstitutional.
Finally, declaring parts of a law unconstitutional essentially affords the president a line item veto, a power not given in the Constitution (Nussbaum 5). Just as the president cannot strike a single expenditure from an appropriations bill, he should not be able to strike a single provision from any other kind of bill and decline to enforce or recognize it. The Supreme Court held that line item vetoes are unconstitutional in the 1998 case of Clinton v. New York that found President Clinton could only veto an entire law, not just a part, due to the Presentment Clause. The Clause requires Congress to “present” a bill to the president for him to either sign or veto before it can become law (Dean, par. 18-19). If this power of line item veto does not exist in one context, it must not exist in the other.
The last and perhaps most controversial function of presidential signing statements originated and gained momentum with Ronald Reagan. Reagan issued 250 signing statements, 86 of which (34%) objected to one or more of the statutory provisions signed into law
(Halstead 6). Reagan’s aim was to make signing statements part of legislative history and persuade the courts to give weight and consideration to the statements when determining the meaning of statutory language (Halstead 6; Nussbaum 3). A major advancement for this goal occurred in 1986 when then Attorney General Edwin Meese arranged for signing statements to be published by the West Publishing Company in the U.S. Code Congressional and Administrative News, the standard collection of legislative history (Nussbaum 3). Being published in this journal undoubtedly helped Reagan’s case; the statements’ status could now be judged, by some, as being equal to that of legislative documents.
Another argument against this use of signing statements holds that the president cannot speak for Congress, the entity vested with the powers to legislate (Nussbaum 4). The president has no grounds to write a document that establishes a different intent or meaning than what Congress showed through deliberations and word choice of the bill let alone have that document considered equally with other pieces of legislative history. Nussbaum argues that a signing statement could hope to get only the limited consideration that other kinds of post-passage legislative history receive. In the Regional Rail Reorganization Cases (1974), the court ruled that “post-passage remarks of legislators, however explicit, cannot serve to change the legislative intent of Congress expressed before the act’s passage…” (5). The consideration of these statements, if any is given, must not be judged with equal weight to the intent of Congress.
Reagan’s use of signing statements leads nicely into an examination of President George W. Bush’s use of such statements as Reagan was one of the first to use two of Bush’s favorite phrases: “my constitutional authority” or “unitary executive” in his statements (Woolley). Bush has been touted recently as having issued the most signing statements of any president, but this is (so far) untrue. Bill Clinton issued 381 statements over the course of his two-term presidency (Halstead 9). Bush has only issued 155 statements to date. The difference is that only 70 of Clinton’s statements (18%) raised constitutional objections whereas through September 2007, 118 (78%) of Bush’s have raised such challenges (Halstead 9, 12; Green). It is the way Bush has been using his signing statements that has drawn media attention and criticism, not the sheer number. The Boston Globe reported in 2006 that Bush had already challenged more than 750 provisions of bills to which he signed but also attached a statement (Savage, par. 1).
With George W. Bush being the first president in modern history who has not vetoed a bill, some see his use of signing statements as a different way of leaving his legislative mark. Phillip Cooper, a Portland State University law professor, said: “There is no question that this administration has been involved in a very carefully thought-out, systematic process of expanding presidential power at the expense of the other branches of government”
(Savage, par. 14, 9). Cooper is not the only scholar or reporter who feels this way. Jennifer Van Bergen, a journalist with a law degree, characterized Bush’s attitude as wanting presidential power to be unilateral and unchecked (par. 4). She asserted that his signing statements and refusal to follow the laws illustrate his unitary executive view that there is no actual limitation or division of power. This unitary executive view, then, conflicts with Thomas Paines’ statement in Common Sense that “In America, the law is king.” She argues that if Bush can evade parts of laws, then the law is no longer king and the American people must take action
(Bergen, pars. 35-37).
With a history of ever-increasing usage of presidential signing statements, what should we do? Some may hope that criticism and negative public opinion are enough to sway future presidents to cut back on the number and extent of signing statements as it did in the late 1800s. Others are turning to the other branches of government in hopes of curbing this presidential power. In July 2006 and again in June 2007, U.S. Sen. Arlen Specter, R-Pa, introduced a bill to the U.S. Senate called the Presidential Signing Statements Act of 2006 that sought to give Congress legal standing to sue over presidential signing statements. The introduction to the bill states that the judicial use of signing statements is inappropriate as it wrongly gives these documents the force of law. Because both Houses of Congress do not pass signing statements, they are not the “supreme law of the land” and thus should not act as sources of authority in interpreting Acts of Congress (Sect. 2). The bill did not even pass out of the Senate Judiciary Committee in either session.
In the face of difficulty passing legislation, some turn to the courts in the hopes that the review of a case might rule finally one way or another. Even this option seems unlikely to provide answers. Laurence Tribe, a Harvard law professor, said that “no form of legislation that Congress might enact…could manufacture an injury where there is none” (par. 8). Without an “injury” caused by the statute one wishes to challenge, there is no standing to bring a suit before the court. Tribe noted that although Bush’s signing statements might bring “insult,” he sees no “injury” to use to file suit. With both legislative and judicial action on presidential signing statements unlikely in the near future, there is little the media, Congress or even the courts can do to define, curb or authorize presidential signing statements. For now, public criticism, where people feel it is warranted, is the only method of keeping signing statements in check.
Works Cited
American Bar Association “Blue Ribbon Task Force.” Report. July 2006. 26 Feb. 2008. http://www.abanet.org/media/docs/signstatereport.pdf.
The American Presidency Project. Ed. John T. Woolley. 2008. 2 March 2008. http://www.presidency.ucsb.edu/signingstatements.php.
Dean, John W. “The problem with presidential signing statements: Their use and misuse by the Bush administration.” FindLaw: Legal News and Commentary. 13 Jan. 2006.
26 Feb. 2008. http://writ.news.findlaw.com/dean/20060113.html.
Halstead, C.J. “Presidential Signing Statements: Constitutional and Institutional Implications.” CRS Report for Congress. 17 Sept. 2007. 26 Feb. 2008. http://fas.org/sgp/crs/natsec/
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Nussbaum, Bernard N. “The Legal Significance of Presidential Signing Statements.” Memo. 3 Nov. 1993. 28 Jan. 2008. http://www.usdoj.gov/olc/signing.htm.
Savage, Charlie. “Bush challenges hundreds of laws.” The Boston Globe on the Web.
30 April 2006. 29 Jan. 2008. http://www.boston.com/news/nation/articles/2006/04/30/
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Signing Statements: George W. Bush. Ed. Joyce A. Green. 2008. 2 March 2008. http://www.coherentbabble.com/signingstatements/TOCindex.htm.
Tribe, Laurence H. “‘Signing statements’ are a phantom target.” The Boston Globe on the Web. 9 Aug. 2006. 26 Feb. 2008. http://writ.news.findlaw.com/dean/20060113.html.
United States. Cong. Senate. Judiciary Committee. Presidential Signing Statements Act of 2007. 110th Cong., 1st sess. Washington: Thomas Library of Congress. http://thomas.loc.gov/cgi-bin/query/z?c110:S.1747:.
United States Constitution. http://www.usconstitution.net/const.html.
Van Bergen, Jennifer. “The Unitary Executive: Is the doctrine behind the Bush presidency consistent with a democratic state?” FindLaw: Legal News and Commentary.
9 Jan. 2006. 26 Feb. 2008. http://writ.news.findlaw.com/commentary/20060109_
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