Originally Published: 7/26/2006
By The Issue Wonk
When a president is presented a law passed by Congress with which he has disagreement, rather than veto the law and send it back to Congress where the veto might be overridden, he may sign the bill into law and then issue a statement. These statements, according to May1, “. . . are typically issued when presidents . . . note [their] objections to certain provisions of such laws.” As background, May describes the 17th Century confrontations between the British monarchs and Parliament over the right of the king to refuse to enforce laws he disagreed with. These disputes culminated in the removal from power of James II, and, in 1689, the passage of the British Bill of Rights, which expressly forbids such actions.
Kelley2 says that these statements can be used for two (2) purposes: either to “protect presidential prerogatives” and/or to give “instructions to executive branch agencies” on the president’s interpretation of all or portions of the bill. He says:
Prior to the Reagan administration, the use of the signing statement in a serious way – to protect presidential prerogatives and to signal to the bureaucracy the president’s interpretation of a bill – was sporadic at best. Most of the signing statements were rhetorical in nature, as a way to congratulate certain members of Congress for their work on a bill or to admonish the Congress for not following the president’s wishes. However, with the Reagan administration, all of this changed.
Kelley2 goes on to state:
From the Monroe administration to the Carter administration, the executive branch issued a total of 75 signing statements that protected presidential prerogatives and a total of 34 statements instructing the executive branch agencies on the interpretation of sections of the bill.
However, he adds, “[F]rom the Reagan administration through the Clinton administration, the numbers in both categories jumped dramatically.”
[The] number of statements protecting executive branch prerogatives went . . . to 322, and the number of instructions to executive branch agencies on the interpretations of provisions of the law went . . . to 74. . . This demonstrates the importance those three (3) presidents placed upon “Unitarian” principles and it has been lost, for the most part, on nearly all of us who are interested in presidential power. . . The Bush administration has far surpassed previous administrations in its reliance upon the signing statement as a valuable resource in protecting the prerogatives of the president and in controlling the executive branch agencies. . . In Bush’s first term alone, he made 435 statements, mostly objecting to encroachments upon presidential prerogatives.
Savage3 says Bush has used the Signing Statement 750 times. “Among the laws Bush said he can ignore are military rules and regulations, affirmative action provisions, requirements that Congress be told about immigration services problems, ‘whistle-blower’ protections for the nuclear regulatory officials, and safeguards against political interference in federally funded research.”
Arguments for Use
There are several argument for using Signing Statements. One is politically pragmatic. According to Balkin,4 using a Signing Statement keeps the president from taking “political heat” for vetoing a bill. President Bush has vetoed only one (1) bill so far – the federal funding of embryonic stem cell research. (See Note below.) “By riddling bills with exceptions in how he will enforce them, [he produces] what is in effect legislation that Congress never passed.” 4
A more contentious reason is the Unitary Executive Theory which assumes, in its extreme form, nearly absolute deference to the Executive Branch from Congress and the Judiciary. According to Kelly and Marshall:5
In a memo to the “Litigation Strategy Working Group (a group of conservative attorneys in the OLC [Office of Legal Council] charged with protecting and advancing the Reagan political and legal policies),” and dated February 5, 1986, [Samuel] Alito [then with the Justice Department’s OLC, now a Supreme Court justice] suggests the use of the signing statement to “make fuller use of the president’s constitutionally assigned role in the process of enacting law.” In the memo, Alito carves out a role for the president in the legislative process, arguing that since the president has a legislative role in signing or vetoing bills passed by both houses of Congress, “. . . it seems to follow that the President’s understanding of the bill should be just as important as that of Congress.”
President Bush’s Use of Signing Statements
Much has been written about George W. Bush’s use of Signing Statements. For a comprehensive list, please see Savage.3 Here are two (2) of the most egregious examples:
December 30, 2005: The National Defense Authorization Act for Fiscal Year 2006, was amended in the Senate to prohibit torturing prisoners or otherwise subjecting them to cruel, inhuman, and degrading treatment. (See Title XIV, Matters Relating to Detainees, §§ 1401-1406.) The President affixed a Signing Statement saying that the Signing Statement affixed to H.R. 2863, signed December 30, 2005, was incorporated into this Signing Statement. In essence he said he viewed this as a limitation of his powers and would only comply if he so desires.
March 9, 2006: The USA Patriot Act was signed into law. It included several oversight provisions, one of which required the president to advise Congress of how the FBI was using its expanded wiretapping and surveillance powers granted by the Act. After the ceremonial signing, the president affixed a Signing Statement to the law. It says:
The executive branch shall construe the provisions . . . that call for furnishing information to entities outside the executive branch . . . in a manner consistent with the President’s constitutional authority to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive’s constitutional duties. The executive branch shall construe section 756(e)(2) . . ., which calls for an executive branch official to submit to the Congress recommendations for legislative action, in a manner consistent with the President’s constitutional authority to supervise the unitary executive branch and to recommend for the consideration of the Congress such measures as he judges necessary and expedient.
May1 discusses the views and actions of the framers of the Constitution. Since the framers unanimously rejected the idea of an absolute executive veto, one that would not allow for legislative override, May1 argues that this strongly implies they would have never consented to a power to suspend laws the president found offensive without further judicial or legislative recourse. He allows, however, that a refusal to enforce, or a decision to defy, may be legitimate in very narrow circumstances. Such actions are permissible if: 1) defiance is the only way to bring the issue to the judiciary’s attention for proper resolution, 2) the unconstitutionality of the law is clearly supported by the text of the Constitution itself, the intent of the founders, or prior Supreme Court rulings, 3) the White House has exhausted all other possible remedies, and 4) when the executive chooses to defy the law, it takes all possible steps to ensure that judicial review does occur. May1 states that such conditions have never been met in practice.
Balkin4 sums up the issue nicely:
[I]f the President doesn’t agree with legislation, even legislation that he signs, it isn’t law. . . [This] move[s] us down the path to a dictatorial conception of Presidential power – that is, the conception that the President on his own may dictate what is and what is not law, rather than the President merely being the person in a constitutional system entrusted with faithful implementation and enforcement of the law.
1 May, Christopher N. (1998) Presidential Defiance of ‘Unconstitutional’ Laws.” Greenwood Press, Westport CT.
2 Kelley, Christopher S. (April 7-10, 2005) Rethinking Presidential Power – The Unitary Executive and the George W. Bush Presidency. Paper prepared for the 63rd Annual Meeting of the Midwest Political Science Association.
3 Savage, Charlie. (April 30, 2006) “Bush Challenges Hundreds of Laws: President Cites Powers of Office.” Boston Globe.
4 Balkin, Jack M. President Bush: “It’s Not Law Unless I Say So (And Even If I Said So)” Balkin Blogspot, May 1, 2006. Jack Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School.
5 Kelly, Christopher S. & Marshall, Bryan W. (April 20-23, 2006) The Last Mover Advantage: Presidential Power and the Role of Signing Statements. Paper prepared for the Midwest Political Science Association Meetings, Chicago, Illinois.
Note: Vetoing a bill is an admission that Congress has a role in making laws, while ignoring laws passed by Congress in essence says that Congress has no role in government.
© The Issue Wonk, 2006