signing statement

Proponents of strong constitutional signing statements: Ronald Reagan, left, and George H. W. Bush, right.

A signing statement is a written pronouncement issued by the President of the United States upon the signing of a bill into law.

There is an ongoing controversy concerning the extensive use of signing statements by President George W. Bush to modify the meaning of laws. In July 2006, a task force of the American Bar Association described the use of signing statements to modify the meaning of duly enacted laws as "contrary to the rule of law and our constitutional system of separation of powers".^[1]

While it is in theory possible for other executives to issue signing statements, there is no record of notable signing statements by anyone other than an American president.

Types

Generally any executive statement made with the signing of a law can be said to be a signing statement. Studies by political scientist Christopher Kelley^[2] and by then-Assistant Attorney General Walter Dellinger^[3] grouped their purposes into three categories:

• Constitutional: asserts that the law is constitutionally defective in order to guide executive agencies in limiting its implementation;
• Political: defines vague terms in the law to guide executive agencies in its implementation as written;
• Rhetorical: uses the signing of the bill to mobilize political constituencies.

In recent usage, the phrase "signing statement" refers to 'Constitutional'-type statements that direct executive agencies to apply the law according to the president's interpretation of the Constitution.

Applying a metric to signing statements

There is a controversy about how to count an executive's use of signing statements.^[4] A flat count of total signing statements would include the rhetorical and political statements as well as the constitutional. This may give a misleading number when the intent is to count the number of constitutional challenges issued.

Another common metric is to count the number of statutes that are disputed by signing statements. This addresses a count of the constitutional issues but may be inherently inaccurate, due not only to ambiguity in the signing statements themselves but also to the method of determining which statutes are challenged.

Legal significance

No United States Constitution provision, federal statute, or common-law principle explicitly permits or prohibits signing statements. Article I, Section 7 (in the Presentment Clause) empowers the president to veto a law in its entirety, or to sign it. Article II, Section 3 requires that the executive "take care that the laws be faithfully executed".

Signing statements do not appear to have legal force by themselves, although they are all published in the Federal Register. As a practical matter, they may give notice of the way that the Executive intends to implement a law, which may make them more significant than the text of the law itself. There is a controversy about whether they should be considered as part of legislative history; proponents argue that they reflect the executive's position in negotiating with Congress; opponents assert that the executive's view of a law is not constitutionally part of the legislative history because only the Congress may make law.

Supreme Court rulings

The Supreme Court has not squarely addressed the limits of signing statements. Marbury v. Madison (1803) and its progeny are generally considered to have established judicial review as a power of the Court, rather than of the Executive. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), recognized court deference to executive interpretations of a law "if Congress has not directly spoken to the precise question at issue" and if the interpretation is reasonable. To the extent that a signing statement would nullify part or all of a law, the Court may have addressed the matter in Clinton v. City of New York (1998), which invalidated the line-item veto because it violated bicameralism and presentment.

In Hamdan v. Rumsfeld (2006), the Supreme Court gave no weight to a signing statement in interpreting the Detainee Treatment Act of 2005, according to that case's dissent (which included Justice Alito, a proponent of expanded signing statements when he worked in the Reagan Justice Department -- see "Presidential Usage" below).

Presidential usage

The first president to issue a signing statement was James Monroe.^[5] Until the 1980s, with some exceptions, signing statements were generally triumphal, rhetorical, or political proclamations and went mostly unannounced. Until Ronald Reagan became President, only 75 statements had been issued. Reagan and his successors George H. W. Bush and Bill Clinton have produced 347 signing statements among the three of them. By the end of 2004, George W. Bush had issued over 108 signing statements containing more than 505 constitutional challenges. ^[6] As of October 4, 2006, he had signed 134 signing statements challenging 810 federal laws. ^[7]

The upswing in the use of signing statements during the Reagan administration coincides with the writing by Samuel A. Alito – then a staff attorney in the Justice Department's Office of Legal Counsel – of a 1986 memorandum making the case for "interpretive signing statements" as a tool to "increase the power of the Executive to shape the law." Alito proposed adding signing statements to a "reasonable number of bills" as a pilot project, but warned that "Congress is likely to resent the fact that the President will get in the last word on questions of interpretation."^[8]

A November 3, 1993 memo from White House Counsel Bernard Nussbaum explained the use of signing statements to object to potentially unconstitutional legislation:

If the President may properly decline to enforce a law, at least when it unconstitutionally encroaches on his powers, then it arguably follows that he may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing. If so, then a signing statement that challenges what the President determines to be an unconstitutional encroachment on his power, or that announces the President's unwillingness to enforce (or willingness to litigate) such a provision, can be a valid and reasonable exercise of Presidential authority.^[3]

This same Department of Justice memorandum observed that use of Presidential signing statements to create legislative history for the use of the courts was uncommon before the Reagan and Bush Presidencies. In 1986, Attorney General Edwin Meese III entered into an arrangement with the West Publishing Company to have Presidential signing statements published for the first time in the U.S. Code Congressional and Administrative News, the standard collection of legislative history.

Signing statements may be viewed as a type of executive order without congressional oversight. Other types of executive order are national security directives, homeland security presidential directives, and presidential decision directives, all of which deal with national security and defense matters.

Controversy over George W. Bush's use of signing statements

There is an ongoing controversy concerning the extensive use of signing statements to modify the meaning of laws by President George W. Bush. In July 2006, a task force of the American Bar Association described the use of signing statements to modify the meaning of duly enacted laws as "contrary to the rule of law and our constitutional system of separation of powers".^[1]

George W. Bush's use of signing statements is controversial, both for the number of times employed (estimated at over 750 opinions) and for the apparent attempt to nullify legal restrictions on his actions through claims made in the statements. Some opponents have said that he in effect uses signing statements as a line-item veto although the Supreme Court has already held one line item veto bill to be an unconstitutional delegation of power in Clinton v. City of New York.^[9]

Wikinews has related news:

Bush declares immunity from Patriot Act oversight

Previous administrations had made use of signing statements to dispute the validity of a new law or its individual components. George H. W. Bush challenged 232 statutes through signing statements during four years in office and Clinton challenged 140 over eight years. George W. Bush's 130 signing statements contain at least 1,100 challenges.^{[6] [10]} In the words of a New York Times commentary:

And none have used it so clearly to make the president the interpreter of a law's intent, instead of Congress, and the arbiter of constitutionality, instead of the courts.^[11]

Others, however, have defended the use of presidential signing statements. The United States Department of Justice says that

Many Presidents have used signing statements to make substantive legal, constitutional, or administrative pronouncements on the bill being signed. Although the recent practice of issuing signing statements to create "legislative history" remains controversial, the other uses of Presidential signing statements generally serve legitimate and defensible purposes.^[3]

An editorial in the The Wall Street Journal asserted:

In its new "study," the ABA claims that Presidential "signing statements" are "contrary to the rule of law and our constitutional system" and urges Congress to pass a law giving itself the power to challenge them in court. It then advances a theory under which the President has no authority to judge for himself the Constitutionality of the various laws he signs. This is absurd on its face given that the President takes an oath to "preserve, protect and defend the Constitution of the United States," thus obliging him to form an independent opinion of what this requires.^[12]

The signing statement associated with the McCain Detainee Amendment, prohibiting cruel, inhuman and degrading treatment of detainees in U.S. custody attracted controversy:

"The executive branch shall construe... the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power...."

This statement specifically invokes the unitary executive theory, which according to its adherents^{[citation needed]} argues that the President, in his capacity of Commander-in-Chief, cannot be bound by any law or by Congress since anything hindering him in that capacity can be considered unconstitutional.^[13] With his signing statement to the McCain Detainee Amendment, the President has reserved his authority to challenge parts of the law passed by Congress.^[14]

Blue ribbon panel on signing statements

On July 24, 2006, the American Bar Association's Task Force on Presidential Signing Statements and the Separation of Powers Doctrine, appointed by ABA President Michael S. Greco, issued a widely publicized report condemning some uses of signing statements. The task force report and recommendations were unanimously approved by ABA delegates at their August 2006 meeting.^[1]

The bipartisan and independent blue ribbon panel was chaired by Miami lawyer Neal Sonnett, a former Assistant U.S. Attorney and Chief of the Criminal Division for the Southern District of Florida. He is past chair of the ABA Criminal Justice Section, chair of the ABA Task Force on Domestic Surveillance and the ABA Task Force on Treatment of Enemy Combatants; and president-elect of the American Judicature Society.

The report stated in part:

Among those unanimous recommendations, the Task Force voted to:

• oppose, as contrary to the rule of law and our constitutional system of separation of powers, a President's issuance of signing statements to claim the authority or state the intention to disregard or decline to enforce all or part of a law he has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress;

• urge the President, if he believes that any provision of a bill pending before Congress would be unconstitutional if enacted, to communicate such concerns to Congress prior to passage;

• urge 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;

• urge Congress to enact legislation requiring the President promptly to submit to Congress an official copy of all signing statements, and to report to Congress the reasons and legal basis for any instance in which he claims the authority, or states the intention, to disregard or decline to enforce all or part of a law he has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress, and to make all such submissions be available in a publicly accessible database.

Congressional efforts to restrict signing statements

Sen. Arlen Specter (R-Pa.) introduced the Presidential Signing Statements Act of 2006 on July 26, 2006.^[15] The bill would:

1. Instruct all state and federal courts to ignore presidential signing statements. ("No State or Federal court shall rely on or defer to a presidential signing statement as a source of authority.")
2. Instruct the Supreme Court to allow the U.S. Senate or U.S. House of Representatives to file suit in order to determine the constitutionality of signing statements.^[16]

The bill was referred to the Senate Judiciary Committee, which Specter formerly chaired, on the day it was introduced.[4] As with all unpassed bills, it expired with the end of the 109th United States Congress on 9 December 2006.

Specter reintroduced the legislation with the Presidential Signing Statements Act of 2007.^[17]

See also

• List of United States federal executive orders
• Separation of powers
• Enabling act (United States)
• Presentment Clause
• Unitary Executive
• Executive (government)

References

External links

• Presidential Signing Statements Browsable database of signing statements from 1929 through the present. Added on June 30, 2006.
• Presidential Signing Statements 2001-2006 Browsable database of the signing statements of President George W. Bush. Created on May 31, 2006.
• DoD Bill Signing Statement Example of a signing statement issued by President Bill Clinton on November 4, 1999.
• By Order of the President: The Use and Abuse of Executive Direct Action By Phillip J. Cooper. University Press of Kansas: 2002.
• The Unitary Executive and the Presidential Signing Statement Doctoral dissertation by Christopher S. Kelley, Ph.D., 2003.
• Alito Once Made Case For Presidential Power By Christopher Lee. Washington Post. January 2, 2006. (Discussing encouragement of the use of signing statements by Samuel Alito when he worked in the administration of former President Ronald Reagan)
• For President, Final Say on a Bill Sometimes Comes After the Signing By Elisabeth Bumiller. The New York Times. January 16, 2006.
• Bush Shuns Patriot Act Requirement By Charlie Savage. The Boston Globe. March 24, 2006. (Disclosing Bush's claim, in a signing statement, that he has the authority to defy provisions in the new version of the USA Patriot Act requiring him to tell Congress how he is using its expanded police powers.)
• The Problem With Presidential Signing Statements by Richard A. Epstein, Cato Institute, July 18, 2006.
• Bush Challenges Hundreds of Laws By Charlie Savage. The Boston Globe. April 30, 2006. (A detailed look at five years of specific signing statement claims.)
• Examples of Bush Signing Statements By Charlie Savage. The Boston Globe. April 30, 2006.
• "Bush cites authority to bypass FEMA law" by Charlie Savage. The Boston Globe, October 6, 2006
• Reinterpreting Torture: Presidential Signing Statements and the Circumvention of U.S. and International Law by Erin Louise Palmer. Human Rights Brief (Fall 2006).

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