Presidential Signing Statements: Constitutional and Institutional Implications
Presidential Signing Statements:
Constitutional and Institutional Implications
Updated September 17, 2007
T. J. Halstead
Legislative Attorney
American Law Division
Presidential Signing Statements:
Constitutional and Institutional Implications
Summary
Presidential signing statements are official pronouncements issued by the
President contemporaneously to the signing of a bill into law that, in addition to
commenting on the law generally, have been used to forward the President’s
interpretation of the statutory language; to assert constitutional objections to the
provisions contained therein; and, concordantly, to announce that the provisions of
the law will be administered in a manner that comports with the Administration’s
conception of the President’s constitutional prerogatives. While the history of
presidential issuance of signing statements dates to the early 19th century, the practice
has become the source of significant controversy in the modern era as Presidents
have increasingly employed the statements to assert constitutional and legal
objections to congressional enactments. President Reagan initiated this practice in
earnest, transforming the signing statement into a mechanism for the assertion of
presidential authority and intent. President Reagan issued 250 signing statements, 86
of which (34%) contained provisions objecting to one or more of the statutory
provisions signed into law. President George H. W. Bush continued this practice,
issuing 228 signing statements, 107 of which (47%) raised objections. President
Clinton’s conception of presidential power proved to be largely consonant with that
of the preceding two administrations. In turn, President Clinton made aggressive use
of the signing statement, issuing 381 statements, 70 of which (18%) raised
constitutional or legal objections. President George W. Bush has continued this
practice, issuing 152 signing statements, 118 of which (78%) contain some type of
challenge or objection. The significant rise in the proportion of constitutional
objections made by President Bush is compounded by the fact that these statements
are typified by multiple objections, resulting in more than 1,000 challenges to distinct
provisions of law. The number and scope of such assertions in the George W. Bush
Administration has given rise to extensive debate over the issuance of signing
statements, with the American Bar Association (ABA) recently publishing a report
declaring that these instruments are “contrary to the rule of law and our constitutional
separation of powers” when they “claim the authority or state the intention to
disregard or decline to enforce all or part of a law ... or to interpret such a law in a
manner inconsistent with the clear intent of Congress.”
However, in analyzing the constitutional basis for, and legal effect of,
presidential signing statements, it becomes apparent that no constitutional or legal
deficiencies adhere to the issuance of such statements in and of themselves. Rather,
it appears that the appropriate focus of inquiry in this context is on the assertions of
presidential authority contained therein, coupled with an examination of substantive
executive action taken or forborne with regard to the provisions of law implicated in
a presidential signing statement. Applying this analytical rubric to the current
controversy, it seems evident that the issues involved center not on the simple issue
of signing statements, but rather on the view of presidential authority that governs the
substantive actions of the Administration in question. This report focuses on the use
of signing statements by recent Administrations, with particular emphasis on the
current Administration and legislative proposals to regulate the use and issuance of
signing statements.
Contents
In troduction ..................................................1
Historical Usage and Constitutional Basis...........................2
A. Signing Statements in the Reagan Administration..............3
B. Signing Statements in the George H.W. Bush Administration.....4
C. Signing Statements in the Clinton Administration..............5
D. Signing Statements in the George W. Bush Administration.......8
Legal and Constitutional Implications of Signing Statements...........11
Substantiality of Constitutional Objections.........................14
Foreign Affairs Power and Executive Privilege.................15
Direct Reporting Requirements..............................18
Legislative Veto Provisions.................................19
Institutional Implications of Signing Statements.....................20
Statutory Construction and the Courts.........................21
Impact on Congress.......................................23
Conclusion ..................................................29
Presidential Signing Statements:
Constitutional and Institutional Implications
Introduction
Presidential signing statements are official pronouncements issued by the
President contemporaneously to the signing of a bill into law that, in addition to
commenting on the law generally, have been used to forward the President’s
interpretation of the statutory language; to assert constitutional objections to the
provisions contained therein; and, concordantly, to announce that the provisions of
the law will be administered in a manner that comports with the Administration’s
conception of the President’s constitutional prerogatives.1 While the history ofth
presidential issuance of signing statements dates to the early 19 century, the practice
has become the source of significant controversy in the modern era as Presidents
have increasingly employed the statements to assert constitutional objections to
congressional enactments.2 The number and scope of such assertions in the George
W. Bush Administration in particular has given rise to extensive debate over the
issuance of signing statements, with the American Bar Association (ABA) recently
publishing a report declaring that these instruments are “contrary to the rule of law
and our constitutional separation of powers” when they “claim the authority or state
the intention to disregard or decline to enforce all or part of a law...or to interpret
such a law in a manner inconsistent with the clear intent of Congress.”3
However, in analyzing the constitutional basis for, and legal effect of,
presidential signing statements, it becomes apparent that no constitutional or legal
deficiencies adhere to the issuance of such statements in and of themselves. Rather,
it appears that the appropriate focus of inquiry in this context is on the assertions of
presidential authority contained therein, coupled with an examination of substantive
executive action taken or forborne with regard to the provisions of law implicated in
a presidential signing statement. Applying this analytical rubric to the current
controversy, it seems evident that the issues involved center not on the simple issue
of signing statements, but rather on the view of presidential authority that governs the
substantive actions of the Administration in question. This report focuses on the use
1 Philip J. Cooper, “George W. Bush, Edgar Allen Poe and the Use and Abuse of
Presidential Signing Statements,” Presidential Studies Quarterly 35, no. 3, at p. 517
(September 2005).
2 Christopher N. May, “Presidential Defiance of ‘Unconstitutional’ Laws: Reviving the
Royal Prerogative,” 21 Hastings Const. L.Q. 865, 932 (1994).
3 American Bar Association, Report of the Task Force on Presidential Signing Statements
and the Separation of Powers Doctrine at p. 5 (August 2006).
of signing statements by recent Administrations, with particular emphasis on the
current Administration.
Historical Usage and Constitutional Basis
There is no explicit constitutional provision authorizing the issuance of
presidential signing statements. Article I of the Constitution provides only that the
President “shall sign” a bill of which he approves, while in vetoing a measure the
President is required to return the measure “with his Objections to that House in
which it shall have originated.”4 However, Presidents have issued such statements
since the Monroe Administration, and there is little evident constitutional or legal
support for the proposition that the President may be constrained from issuing a
statement regarding a provision of law.
The first controversy arising in this context stemmed from a signing statement
issued by Andrew Jackson in 1830 that raised objections to an appropriations bill that
involved internal improvements.5 The bill specifically addressed road examinations
and surveys. In his signing statement President Jackson declared that the road in
question, which was to reach from Detroit to Chicago, should not extend beyond the
territory of Michigan.6 A subsequently issued House report criticized Jackson’s
action, characterizing it as in effect constituting a line item veto.7 Likewise, a signing
statement issued by President Tyler in 1842 expressing doubts about the
constitutionality of a bill regarding the apportionment of congressional districts was
characterized by a select committee of the House as “a defacement of the public
records and archives.”8 Perhaps sensitized by this rebuke, Presidents Polk and Pierce
apologized for the issuance of signing statements, noting that such action departed
from the traditional practice of notifying Congress of the approval of a bill via an oral
message from the President’s private secretary.9 This conception of a signing
statement as an unusual instrument was again noted by President Grant in 1875,
when he declared that his use of a signing statement was an “unusual method of
conveying the notice of approval....”10
Signing statements remained comparatively rare through the end of the 19th
century, but had become common instruments by 1950. President Truman, for
instance, issued nearly 16 signing statements per year, on average, with the figure
steadily increasing up to the modern day. Concurrent with the rise in the number of
statements issued, the usage of signing statements to voice constitutional objections
4 U.S. Const., Art I, sec. 7 cl. 2; see also, May, n. 2, supra, at 929.
5 Louis Fisher, “Constitutional Conflicts Between Congress and the President,” University
Press of Kansas, 4th Ed., at p. 132 (1997).
6 See Christopher S. Kelley, “A Comparative Look at the Constitutional Signing Statement,”
7 Fisher, n. 5, supra, at 132.
8 Fisher, n. 5, supra, at 133.
9 May, n. 2, supra, at 929-930.
10 May, n. 2, supra, at 930.
to acts of Congress has become increasingly prevalent over the past 60 years. This
type of executive action began in earnest during the Reagan Administration, as one
aspect of a comprehensive strategy employed by the Reagan Administration to
aggressively assert the constitutional prerogatives of the presidency.11
A. Signing Statements in the Reagan Administration. President Reagan
expanded the use and impact of the presidential signing statement, transforming it
into a mechanism for the assertion of presidential authority and intent. President
Reagan issued 250 signing statements, 86 of which (34%) objected to one or more
of the statutory provisions signed into law.12 One key aspect of President Reagan’s
approach in this context centered on attempts to establish the signing statement as
part of the legislative history of an enactment, and, concordantly, to persuade courts
to take the statements into consideration in judicial rulings. This goal was illustrated
in a memorandum drafted by Samuel A. Alito, Jr., then serving in the Office of Legal
Counsel (OLC) of the Department of Justice, announcing a “primary objective” to
“ensure that Presidential signing statements assume their rightful place in the13
interpretation of legislation.” To this end, Attorney General Edwin Meese III
entered into an agreement in 1986 with the West Publishing Company for signing
statements to be included in the legislative histories contained in its U.S. Code
Congressional and Administrative News publication.14
This strategy met with a degree of success in two major Supreme Court cases
that were decided during this time period. In INS v. Chadha, which struck down as
unconstitutional the congressional practice of subjecting various executive branch
actions to a legislative veto, the Court noted that “11 Presidents, from Mr. Wilson
through Mr. Reagan, who have been presented with this issue have gone on record15
at some point to challenge congressional vetoes as unconstitutional.” Likewise, in
Bowsher v. Synar, which struck down provisions of the Gramm-Rudman Deficit
Reduction Act on the basis that they impermissibly imbued a legislative branch
officer with executive authority, the Court noted: “[i]n his signing statement, the
President expressed his view that the act was constitutionally defective because of
the Comptroller General’s ability to exercise supervisory authority over the16
President.” While these citations by the Court lend credence to validity of signing
11 See, e.g., Morton Rosenberg, “Congress’s Prerogative Over Agencies and Agency
Decisionmakers: The Rise and Demise of the Reagan Administration’s Theory of the
Unitary Executive,” 57 Geo. Wash. L. Rev. 627 (1989); CRS Report RL32855, Presidential
Review of Agency Rulemaking, by T. J. Halstead (2005).
12 Curtis A. Bradley, Eric A. Posner, “Presidential Signing Statements and Executive
Power,” 23 Const. Comment. 307, 323 (2006).
13 Samuel A. Alito, Jr., “Using Presidential Signing Statements to Make Fuller Use of the
President’s Constitutionally Assigned Role in the Process of Enacting Law” (February 5,
14 Phillip J. Cooper, “By Order of the President: The Use and Abuse of Executive Direct
Action,” University of Kansas Press, at p. 203 (2002).
15 462 U.S. 919, 942 fn. 13 (1983).
16 478 U.S. 714, 719 fn. 1 (1986). See n. 57, infra, for a more detailed overview of the
(continued...)
statements as constitutional presidential instruments, it does not appear that the
statements were in fact relied upon in any determinative degree by the Court. Indeed,
as discussed in further detail below, the contents of signing statements do not seem
to have factored prominently in judicial decisions.17
One of the most significant conflicts involving a presidential signing statement
in the Reagan Administration arose from the President’s statement accompanying the
signing of the Deficit Reduction Act of 1984. In that statement, the President took
issue with provisions of the bill constituting the Competition in Contracting Act,
announcing his “vigorous objection to certain provisions that would
unconstitutionally attempt to delegate to the Comptroller General ... the power to
perform duties and responsibilities that in our constitutional system may be
performed only by officials of the executive branch.”18 The President further stated
that he was “instructing the Attorney General to inform all executive branch agencies
as soon as possible with respect to how they may comply with the provisions of the
bill in a manner consistent with the Constitution.”19 President Reagan was
specifically objecting to an automatic stay provision that prohibited the award of
government contracts during any period where the Comptroller General was
investigating complaints that an agency had not complied with the competitive
bidding procedures required by the act. Subsequent to this declaration, the Director
of the Office of Management and Budget (OMB) issued OMB Bulletin 85-8,
instructing federal agencies not to cooperate with GAO’s efforts to implement the
act.20 Given that the actions taken by the relevant agencies pursuant to the specific
instructions contained in the bulletin directly impacted contractors, the issue was ripe
for judicial review. A judicial ruling issued in March of 1985 upheld the conferral of
power at issue.21 However, the Administration persisted in its refusals to give effect
to the terms of the act, acceding only in the face of additional rulings on the issue as
well as a vote by the House Judiciary Committee to eliminate funds for the Office of
the Attorney General from the budget.22
B. Signing Statements in the George H.W. Bush Administration. The
Administration of President George H.W. Bush (Bush I) continued to employ signing
statements to further presidential prerogatives, issuing 228 signing statements, 107
of which (47%) raised constitutional or legal objections.23 In particular, the Bush I
Administration was highly sensitive to perceived encroachments upon executive
16 (...continued)
decision in Bowsher v. Synar.
17 See n. 93 and accompanying text, infra.
18 P.L. 98-369, Deficit Reduction Act of 1984, Statement by President Ronald W. Reagan
Upon Signing H.R. 4170, July 18, 1984.
19 Id.
20 Cooper, n. 14, supra, at 226.
21 Ameron, Inc. v. U.S. Army Corps of Engineers, 607 F.Supp. 962 (D.N.J. 1985).
22 Cooper, n. 14, supra, at 226-27.
23 See Bradley & Posner, n. 12, supra, at 323.
power by Congress, as illustrated by an OLC opinion drafted by Deputy Attorney
General William P. Barr. In this memo, Barr identified ten categories of legislative
action he considered constitutionally problematic and noted that the Administration
had objected to many of these perceived intrusions through the issuance of signing
st at em ent s . 24
One category that was consistently acted upon by the Bush I Administration was
protection of presidential authority under the Appointments Clause of the
Constitution. For example, upon signing the National and Community Services Act
of 1990 into law, President Bush issued a statement declaring that provisions in the
bill establishing a Board of Directors charged with administering a National and
Community Services Act Commission were unconstitutional due to the requirement
that certain appointees were to be drawn from a pool of nominees forwarded by the
Speaker of the House of Representatives and the Majority Leader of the Senate.
President Bush specifically noted that such a requirement exceeded the authority of
Congress in the appointment context and declared that he would treat the requirement
as being “without legal force or effect.” The President further directed the Attorney
General “to prepare remedial legislation for submission to the Congress during its
next session, so that the act can be brought into compliance with the Constitution’s
requirements.” Congress subsequently passed a bill remedying the constitutionally
challenged provisions. Additionally, upon signing the Dayton Heritage Preservation
Act of 1992 into law, President Bush issued a statement objecting to language in the
bill that directed the Secretary of Interior to make appointments of individuals to a
Heritage Commission based on the recommendations of local officials, stating that
since “[t]he majority of members are effectively selected by various nonfederal
officials and thus are not appointed in conformity with the Appointments Clause of
the Constitution,” he was signing the bill “on the understanding that the commission
will serve only in an advisory capacity and will not exercise Government power.”
The Bush I Administration subsequently refused to make any appointments to the
Commission until this concern was addressed in remedial legislative action in 1995.25
The Bush I Administration also continued to pursue a strategy of employing signing
statements to influence the interpretation of the legislative history accompanying a
bill. However, as in the Reagan Administration, it is not apparent that these efforts
were successful.
C. Signing Statements in the Clinton Administration. While the policy
aims of his Administration might have differed, President Clinton’s conception of
executive power revealed itself to be largely consonant with the philosophical26
underpinnings of the Reagan and Bush I Administrations. Accordingly, President
Clinton also made active use of signing statements as a mechanism to assert
24 Department of Justice, Office of Legal Counsel, “Common Legislative Encroachments on
Executive Branch Authority,” 13 U.S. Op. Off. Legal Counsel, 248, 249 (1989).
25 Kelley, n. 6, supra, at 11.
26 See, e.g., CRS Report RL32855, Presidential Review of Agency Rulemaking, by T. J.
Halstead (2005).
presidential prerogatives. President Clinton issued 381 signing statements, 70 of
which (18%) voiced concerns or objections.27
President Clinton also relied upon the Office of Legal Counsel of the
Department of Justice to produce memoranda not only in support of the issuance of
signing statements generally, but also asserting presidential authority to refuse to
enforce unconstitutional statutes. Regarding the former, then Assistant Attorney
General Walter Dellinger prepared an OLC memorandum asserting that the issuance
of signing statements to “make substantive legal, constitutional or administrative
pronouncements,” was well established, and that these uses “generally serve
legitimate and defensible purposes.”28 In a subsequent memorandum, Assistant
Attorney General Dellinger declared that “there are circumstances in which the
President may appropriately decline to enforce a statute that he views as
unconstitutional.”29 In support of this “general proposition” that Mr. Dellinger
“believe[d] to be uncontroversial,” the memorandum pointed to what he argued was
“significant judicial approval,” and “consistent and substantial executive practice.”30
It is important to note that while the Dellinger memorandum asserted that the
President has an “enhanced responsibility to resist unconstitutional provisions that
encroach upon the constitutional power of the Presidency,” the memo nonetheless
acknowledged that the “Supreme Court plays a special role in resolving disputes
about the constitutionality of enactments.” Accordingly, the memorandum advised:
As a general matter, if the President believes that the Court would sustain a
particular provision as constitutional, the President should execute the statute,
notwithstanding his own beliefs about the constitutional issue. If, however, the
President, exercising his independent judgment, determines both that a provision
would violate the Constitution and that it is probable that the Court would agree31
with him, the President has the authority to decline to execute the statute.”
The memorandum went on to advise that in deciding whether to refuse to
enforce a provision of law, the President should weigh “the effect of compliance with
the provision on the constitutional rights of affected individuals and on the executive
branch’s constitutional authority,” with a focus on the likelihood of whether that
compliance or non-compliance would permit judicial resolution of the issue.32 While
this recommendation appears to be based on a determination that it would be more
27 See Bradley & Posner, n. 12, supra, at 323.
28 Department of Justice, Office of Legal Counsel, “The Legal Significance of Presidential
Signing Statements,” 17 U.S. Op. Off. Legal Counsel 131 (1993). While the memorandum
defended the use of signing statements to announce that an Administration would not give
effect to a congressional enactment, it went on to note that “the recent practice of issuing
signing statements to create ‘legislative history’ remains controversial....”
29 Department of Justice, Office of Legal Counsel, “Presidential Authority to Decline to
Execute Unconstitutional Statutes,” 18 U.S. Op. Off. Legal Counsel, 199 (1994).
30 Id.
31 Id. at 200.
32 Id. at 201.
appropriate to limit a refusal to enforce a law to situations that “would afford the
Supreme Court an opportunity to review the constitutional judgment of the legislative
branch,” the memorandum nonetheless declared that some encroachments would not
be justiciable, and that in such instances the President “must shoulder the
responsibility of protecting the constitutional role of the presidency.”33
In light of this conception of presidential power, it is not surprising that the
Clinton signing statements often contained broad constitutional pronouncements
similar to those of the Reagan and Bush I Administrations, ranging from the foreign
affairs power to the Recommendation Clause. Regarding the latter, in a signing
statement accompanying the Balanced Budget Act of 1997, President Clinton took
objection to a provision requiring the Secretary of Health and Human Services to
develop certain legislative proposals, declaring that he would “construe this provision
in light of my constitutional duty and authority to recommend to the Congress such
legislative measures as I judge necessary and expedient, and to supervise and guide
my subordinates, including the review of their proposed communications to
Congress.”34 Like his predecessor, President Clinton also guarded presidential
appointment prerogatives, objecting to provisions he perceived as impinging upon
executive authority in that context. For example, in a statement issued along with the
enactment of the Coast Guard Authorization Act of 1997, President Clinton likewise
objected to a provision of the bill that purported to require the designation of certain
commission members exercising executive power from persons recommended by
local officials or organizations. President Clinton declared that “[t]he Appointments
Clause does not permit such restrictions to be imposed upon the executive branch’s
powers of appointment. Therefore I will not interpret [this provision] of the act as
binding, and I direct the Secretary of Transportation to regard the designations and
recommendations arising from it as advisory only.”35
While signing statements that raise constitutional objections or signal an
intention to refuse to enforce a provision in law are usually generalized in nature,
President Clinton’s statement accompanying the National Defense Authorization Act
for Fiscal Year 2000 provides a stark example of a substantive presidential directive
being included within a statement itself. The act established the National Nuclear
Security Administration (NNSA), a new, semi-autonomous agency within the
Department of Energy to manage and oversee the operational and security activities
of the Department’s nuclear weapons laboratories.
In his signing statement, the President expressed misgivings with respect to
structural arrangements within the new agency and the limitations on the Secretary
of Energy’s ability to direct and control the activities and personnel of the NNSA, but
did not suggest that the legislation raised constitutional issues. In particular, the
President objected to what he saw as the isolation of the personnel and contractors
of the NNSA from direction by Department officials outside the new agency; the
limitation on the Secretary’s ability to employ his statutory authorities to direct the
33 Id. at 201.
34 See Bradley and Posner, n. 12, supra, at 326.
35 Id.
activities and personnel of the NNSA both personally and through designated
subordinates; the uncertainty whether the Department’s duty to comply with the
procedural and substantive requirements of environmental laws would be fulfilled
under the new arrangement; the removal of the Secretary’s direct authority over
certain sensitive classified programs; and the potentially deleterious effect of the
creation of redundant support functions in the areas of procurement, personnel,
public affairs, legal affairs, and counterintelligence. To ensure that these perceived
deficiencies do not, in his view, undermine the Secretary’s statutory responsibilities
in the area, the President directed the Secretary to assume the duties and functions of
the new office of Under Secretary for Nuclear Security and to “guide and direct” all
NNSA personnel by using his authority, “to the extent permitted by law,” to assign
any Departmental officer or employee to a concurrent office within NNSA. The
Secretary is also directed to “mitigate” the risks to the chain of command between
him and subordinate agency personnel presented by the legislation’s redundant
functions “to the extent permissible under law.” The President indicated that he
might not submit a nominee for Under Secretary for Nuclear Security until action
was taken by Congress to remedy the identified deficiencies and to “harmonize” the
Secretary’s authorities with those vested in the Under Secretary.
Whereas the statement issued by President Reagan in response to the
Competition in Contracting Act was typical of presidential signing statements in that
it contained a generalized constitutional objection to a provision in a bill, followed
by subsequent particularized and substantive presidential action, President Clinton’s
NNSA statement was uncharacteristically direct, laying out the specific actions that
were to be taken in order to ensure the vitiation of the provisions President Clinton
deemed objectionable. As noted by Professor Philip J. Cooper, this statement did not
simply raise a generalized constitutional objection or signal an intent to refuse to
enforce the provisions at issue, but, rather, constituted an “order to do that which the
Congress had expressly rejected.”36
D. Signing Statements in the George W. Bush Administration. Like
its predecessors, the Administration of George W. Bush (Bush II) has employed the
signing statement to voice constitutional objections to, or concerns with,
congressional enactments, or to enunciate the Administrations interpretation of an
enactment it deems ambiguous. However, while the nature and scope of the
objections raised by the Bush II Administration mirror those of prior
Administrations, the sheer number of challenges contained in the signing statements
issued by President Bush indicate that the current Administration is using this
presidential instrument relative to all levels and elements of the executive branch and
to aggressively assert presidential prerogatives in its relations with the Congress and
the Judiciary. These factors, in turn, have generated a significant degree of
controversy regarding the issuance of presidential signing statements.
At first glance, it does not appear that President Bush has departed significantly
from prior practice in the signing statement context, having issued 152 signing
statements as compared to 381 during the Clinton Administration. However, the
qualitative difference in the Bush II approach becomes apparent when considering
36 Cooper, n. 14, supra, at 228.
the number of individual challenges or objections to statutory provisions that are
contained in these statements. Of President Bush’s 152 signing statements, 118
(78%) contain some type of constitutional challenge or objection, as compared to 70
(18%) during the Clinton Administration.37 Even more significant, however, is the
fact that these 118 signing statements are typified by multiple constitutional and
statutory objections, containing challenges to more than 1,000 distinct provisions of
law. 38
Contributing to the controversy has been the high profile of several of the
provisions that have been objected to by President Bush. For instance, in the signing
statement accompanying the USA Patriot Improvement and Reauthorization Act of
2005, President Bush declared that provisions requiring the executive branch to
submit reports and audits to Congress would be construed “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.”39 Likewise, in the signing statement
accompanying the law that contained the McCain Amendment (as part of the
Detainee Treatment Act) prohibiting the use of torture, or cruel, inhuman, or
degrading treatment of prisoners, the President declared that the executive branch
would construe that provision “in a manner consistent with the constitutional
authority of the President to supervise the unitary executive branch and as
Commander in Chief ... [in order to protect] the American people from further
terrorist attacks.”40
While the number of provisions challenged or objected to by President Bush has
given rise to controversy, it is important to note that the substance of his signing
statements do not appear to differ substantively from those issued by either
Presidents Reagan or Clinton. As with those Administrations, the majority of the
Bush II signing statements make generalized objections to perceived encroachments
on executive authority.41 Moreover, in almost all instances where President Bush has
raised a constitutional concern or objection, he has stated that he will construe the
provision at issue in a manner that will avoid his concerns.42 Relatedly, in some
37 See Neil Kinkopf, “Index of Presidential Signing Statements: 2001-2007,” American
Constitution Society for Law and Policy (August 2007). Available at
[ h t t p : / / www.acsl a w.or g/ f i l e s/ Index% 20of % 20Pr e si dent i a l % 20Si gni ng% 2 0 S t a t e me n t s .pdf ] .
38 Id.
39 P.L. 109-177, USA PATRIOT Improvement and Reauthorization Act of 2005, statement
of President George W. Bush Upon Signing H.R. 3199, March 9, 2006.
40 P.L. 109-148, Department of Defense, Emergency Supplemental Appropriations to
Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act of 2006, Statement
of President George W. Bush Upon Signing of H.R. 2863, December 30, 2005.
41 Bradley and Cooper, n. 12, supra, at 317.
42 Id. at 9.
statements that raise constitutional objections, President Bush has declared that he
would comply with the provision at issue “as a matter of comity.”43
Professor Philip J. Cooper has characterized the constitutional objections raised
by President Bush as falling across seventeen categories, ranging from generalized
assertions of presidential authority to supervise the “unitary executive branch”44 to
federalism limits imposed by the Supreme Court in United States v. Printz.45 The
Bush II Administration has been particularly prolific in issuing signing statements
that object to provisions that it claims infringe on the President’s power over foreign
affairs (oftentimes with regard to requirements that the Administration take a
particular position in negotiations with foreign powers); provisions that require the
submission of proposals or recommendations to Congress46 (asserting that they
interfere with the President’s authority under the Recommendations Clause to
“recommend such Measures as he shall judge necessary and expedient); provisions
imposing disclosure or reporting requirements (on the ground that such provisions
may interfere with the President’s authority to withhold sensitive or privileged
information); conditions and qualifications on executive appointments (asserting
infringement on the President’s authority pursuant to the Appointments Clause); and
legislative veto provisions (on the ground that they violate bicameralism and
presentment requirements as established in INS v. Chadha).
While the substance of the Bush II signing statements appear to be comparable
to those of previous administrations, the nature and sheer number of provisions
challenged or objected to indicates that there is nonetheless a qualitative difference
to the current Administration’s use of this instrument. As has been widely noted,
President Bush has “emphatically endorsed the unitariness of the executive branch,”47
and has taken steps to assert sole presidential authority over its administration. In
addition to actions taken to prosecute the War on Terror, President Bush has
exercised significant control over the agency rulemaking process,48 and has issued
executive orders claiming authority to control the release of presidential records and
to classify and reclassify information that implicates national security concerns.49 The
Bush II Administration has also exercised significant control over the release of
information relating to internal executive branch deliberations, as in the Vice
President’s refusal to disclose information regarding the activities of the National
43 Id. at 10.
44 Id. at 9.
45 Cooper, n. 1, supra, at 522.
46 Bradley and Cooper, n. 12, supra, at 317.
47 Christopher S. Yoo, Steven G. Calabresi & Anthony J. Colangelo, “The Unitary Executive
in the Modern Era,” 90 Iowa L. Rev. 601, 722 (2005).
48 Halstead, n. 26, supra.
49 See E.O. 13233 (November 1, 2001); E.O. 13292 (March 25, 2003).
Energy Policy Development Group to the Government Accountability Office (leading
to the litigation in Walker v. Cheney).50
When viewed through the prism of the Administration’s actions in these
contexts, it seems evident that the Bush II signing statements are an integral part of
the Administration’s efforts to further its broad view of presidential prerogatives and
to assert functional and determinative control over all elements of the executive
decisionmaking process. Furthermore, the dramatic increase in the number of
provisions challenged by and objected to by President Bush has been widely seen as
being aimed at altering the conception of presidential authority not only in the
internal operations of the executive branch, but with respect to Congress, the courts
and the public.
As touched upon above, the large bulk of the signing statements the Bush II
Administration has issued to date do not apply particularized constitutional rationales
to specific scenarios, nor do they contain explicit, measurable refusals to enforce a
law. Instead, the statements make broad and largely hortatory assertions of executive
authority that make it effectively impossible to ascertain what factors, if any, might
lead to substantive constitutional or interpretive conflict in the implementation of an
act. The often vague nature of these constitutional challenges, coupled with the
pervasive manner in which they have been raised in numerous signing statements
could thus be interpreted as an attempt by the Administration to systematically object
to any perceived congressional encroachment, however slight, with the aim of inuring
the other branches of government and the public to the validity of such objections
and the attendant conception of presidential authority that will presumably follow
from sustained exposure and acquiescence to such claims of power.
The current Administration’s expansive assertion of its prerogatives through the
use of signing statements has generated a significant degree of controversy, leading
some to call for the enactment of a bar to their issuance, or for the conferral upon
Congress of the right to challenge statements in court.51 However, an analysis of the
underlying legal and constitutional issues suggests that such approaches
misapprehend the nature of signing statements generally, as well as the nature of the
pragmatic and institutional concerns that are posed by the attempts at assertion of
executive power underlying the controversy over these instruments.
Legal and Constitutional Implications of Signing Statements
As has been illustrated, there is a long history of presidential issuance of signing
statements, and these statements provide “one way in which a President may indicate
his intent to refuse to enforce a provision of a congressionally enacted law that he
50 See CRS Report RL31713, Walker v. Cheney: District Court Decision and Related
Statutory and Constitutional Issues, by T. J. Halstead (2004).
51 ABA Task Force Report, n. 3, supra; United States Senate, Committee on the Judiciary,
Statement of Bruce Fein on Presidential Signing Statements, June 27, 2006.
believes to be unconstitutional.”52 However, there is little evident support for the
notion that objections or concerns raised in a signing statement may be given
substantive legal effect. As one commentator has suggested:
Where the President has played a major role in drafting or supporting a particular
statutory provision, presidential statements should be granted interpretive
significance.... When the President opposed the provision being interpreted,53
however, his signing statements ... lack persuasive authority.
This observation is buttressed by the analysis of the district court in Dacosta v.
Nixon, which stated that a bill, when passed by Congress and approved by the
President, “establishe[s] ‘the policy of the United States’ to the exclusion of any
different executive or administrative policy, and ha[s] binding force and effect on
every officer of the Government, no matter what their private judgments of that
policy, and illegalize[s] the pursuit of an inconsistent executive or administration
policy. No executive statement denying efficacy to legislation could have either54
validity or effect.” Irrespective of this maxim, presidents have repeatedly declared
their intention to disregard laws that they view as unconstitutional.55
This persistent practice on the part of presidents gives rise to the question of
whether a President can refuse to comply with a law he believes to be
unconstitutional. The Supreme Court has not directly addressed this issue, but a long
line of precedent could be taken to indicate a consistent view on the part of the Court
that the Take Care Clause56 imposes a duty on the President to ensure that officials
obey Congress’s instructions, and, conversely, that the Clause does not imbue the
President with the authority to dispense with congressional enactments. In Kendall
v. United States ex rel Stokes, for instance, the Court declared that where Congress
has imposed upon an executive officer a valid duty, “the duty and responsibility grow
out of and are subject to the control of the law, and not to the direction of the
President.”57 Underlying the Court’s rejection of the government’s argument that the
Take Care Clause carried with it the power to control executive officials was the
desire to avoid “clothing the President with a power entirely to control the legislation
of Congress ... To contend that the obligation imposed on the President to see the
laws faithfully executed implies a power to forbid their execution, is a novel
52 Christine E. Burgess, Note, “When May a President Refuse to Enforce the Law?,” 72 Tex.
L. Rev. 631, 641 (1994).
53 Frank B. Cross, “The Constitutional Legitimacy and Significance of Presidential ‘Signing
Statements,’” 40 Admin.L.Rev. 209 (1988).
54 55 F.R.D. 145, 146 (E.D.N.Y. 1972).
55 See Christopher N. May, “Presidential Defiance of ‘Unconstitutional’ Laws: Reviving the
Royal Prerogative,” Contributions in Legal Studies, No. 86 (1998).
56 The Take Care Clause states that the President “shall take Care that the Laws be faithfully
executed.” U.S. Const. Art. II, sec. 3, cl. 3.
57 12 Pet. (37 U.S.) 524, 610 (1838).
construction of the Constitution, and entirely inadmissable.”58 Since Kendall, the
Court has consistently rejected the assertion that the Clause is a substantive grant of
power to the President. In Myers v. United States, for instance, the Court declared
that “[t]he duty of the President to see that the laws be executed is a duty that does
not go beyond the laws or require him to achieve more than Congress sees fit to leave
within his power.”59 Likewise, in Youngstown Sheet & Tube Co. v. Sawyer, the Court
declared that “the President’s power to see that the laws are faithfully executed
refutes the idea that he is to be a lawmaker. The Constitution limits his functions in
the lawmaking process to the recommending of laws he thinks wise and the vetoing
of laws he thinks bad.”60
Despite these declarations from the Court, the executive branch has consistently
maintained that the President possesses authority to decline to enforce enactments he
views as unconstitutional.61 As enunciated in the Dellinger Memo,62 the Department
of Justice (DOJ) has pointed to the Court’s decision in Myers v. United States, for
support for this proposition, asserting that since “the Court sustained the President’s
view that the statute at issue was unconstitutional without any member of the Court
suggesting that the President had acted improperly in refusing to abide by the
statute,” the Court could therefore “be seen to have implicitly vindicated the view
that the President may refuse to comply with a statute that limits his constitutional
powers if he believes it to be unconstitutional.”63 Additionally, the Dellinger Memo
pointed to Justice Jackson’s concurrence in Youngstown as recognizing the existence
of the “President’s authority to act contrary to a statutory command,” and has
likewise cited Justice Scalia’s concurrence in Freytag v. Commissioner, for the
proposition that “the President has the ‘power to veto encroaching laws ... or even to
disregard them when they are unconstitutional.’”64
It is not at all clear that the reliance of the DOJ on these factors would bear the
weight of direct judicial scrutiny. Specifically, as noted above, the Court in Myers v.
United States evidenced a clear appreciation of the limits of the President’s authority
under the Take Care Clause. As such, there would appear to be little support for the
DOJ’s conclusion that Myers implicitly validated the notion that the President may
refuse to enforce laws he deems unconstitutional, particularly in light of the fact that
the Court in Myers did not address the President’s refusal to enforce the law at issue.
As was stated by the Court in Powell v. McCormack, “[t]hat an unconstitutional
58 Id. at 610.
59 272 U.S. 52, 177 (1926).
60 343 U.S. 579, 587 (1952).
61 See Walter Dellinger, “Presidential Authority to Decline to Execute Unconstitutional
Statutes,” Office of Legal Counsel, 18 U.S. Op. Off. Legal Counsel 199 (November 2, 1994)
(“[o]pinions dating to at least 1860 assert the President’s authority to decline to effectuate
enactments that the President views as unconstitutional”).
62 See n. 29 and accompanying text, supra.
63 Id. at 199, 201-202.
64 Id. at 199 (quoting Freytag v. Commissioner, 501 U.S. 868, 906 (1991) (Scalia, J.,
concurring).
action has been taken before surely does not render that same action any less
unconstitutional at a later date.”65 It is also difficult to see how Justice Jackson’s
concurrence in Youngstown can be cited as dispositive of the issue. First, while the
concurrence contemplates the allocation of power between Congress and the
executive in the event that the “President takes measures incompatible with the
express or implied will of Congress,” it, like the majority opinion in Myers, does not
give any substantive consideration whatsoever to the President’s authority to decline
to enforce the law.66 Second, the DOJ opinion does not address the holding of the
majority in Youngstown that the “Constitution limits [the President’s] functions in
the lawmaking process to the recommending of laws he thinks wise and the vetoing
of laws he thinks bad.”67 Likewise, Justice Scalia’s concurrence in Freytag, while
probative, does not provide any substantive analysis in support of this proposition,
and arose in a case that did not involve executive refusal to comply with the law.
While the Court has not had occasion to address the issue directly, the cases
discussed above could be taken to indicate a rejection on the part of the Court that the
President possesses the power to suspend acts of Congress, instead establishing that
the President is bound to give effect to such enactments pursuant to the Take Care
Clause. The natural corollary of this proposition, as touched upon by the Court in
Youngstown, is that the proper course of action for the President, when faced with a
bill he deems unconstitutional, is to exercise his Article I veto authority.68 However,
as is evidenced by the DOJ opinion discussed above, there are competing viewpoints
on this issue. As such it is not possible to state conclusively that the President lacks
any authority whatsoever to decline to enforce laws he deems unconstitutional absent
a definitive consideration of the issue by the Court.
Substantiality of Constitutional Objections
While presidential authority to refuse to enforce laws he considers
unconstitutional is a matter of significant constitutional importance, the issue is
ultimately of little concern with regard to the legality or effect of signing statements
themselves. As the judicial maxims discussed above establish, there is little evident
support for the notion that signing statements are instruments with legal force and
effect in and of themselves. If an action taken by a President in fact contravenes legal
or constitutional provisions, that illegality is not augmented or assuaged merely by
the issuance of a signing statement. Commentators argue that this dynamic lends
credence to the notion that signing statements have been employed by the Bush II
Administration not to flatly reject congressional enactments, but, rather, are intended
to sensitize other parties to the President’s conception of executive authority.
Moreover, the usage of signing statements as an instrument to expand executive
authority generally, as opposed to a mechanism by which the President has claimed
65 395 U.S. 486, 547 (1969).
66 343 U.S. at 637.
67 272 U.S. at 177.
68 See INS v. Chadha, 462 U.S. 919, 945 (1983) (“Explicit and unambiguous provisions of
the Constitution prescribe and define the respective functions of the Congress and of the
Executive in the legislative process.”).
summary authority to dispense with the laws enacted by Congress, becomes more
apparent when the merits of the objections that typify signing statements are
examined. In particular, such analysis indicates that while there are instances in
which signing statements are predicated on specific and supportable concerns, the
majority of the objections raised for example in President Bush’s signing statements
are largely unsubstantive or are so general as to appear to be hortatory assertions of
executive authority.
Foreign Affairs Power and Executive Privilege. As noted above, foreign
affairs legislation has been one of the primary areas in which President Bush has
repeatedly raised constitutional objections or challenges. For example, remarking
upon provisions of the Syria Accountability and Lebanese Sovereignty Restoration
Act of 2003 that required the imposition of sanctions against Syria absent a
presidential determination and certification that certain conditions had been met by
Syria or a determination that national security concerns justified a waiver of
sanctions, the President Bush declared:
A law cannot burden or infringe the President’s exercise of a core constitutional
power by attaching conditions precedent to the use of that power. The executive
branch shall construe and implement [this requirement] in a manner consistent
with the President’s constitutional authority to conduct the Nation’s foreign
affairs and as Commander in Chief, in particular with respect to the conduct of
foreign diplomats in the United States, the conduct of United States diplomats
abroad, and the exportation of items and provision of services necessary to the
performance of official functions by United States Government personnel
abroad.
Additionally, remarking upon provisions that required the Secretary of State to
submit reports regarding Syria’s compliance with the conditions of the act and that
nations dealings with terrorists, the President declared:
The executive branch shall construe [this requirement] in a manner consistent
with the President’s constitutional authority 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.
This signing statement is typical of the Bush II Administration’s approach, in
that it challenges more than one provision of the bill and voices objection across a
range of constitutional principles. While the broad and generalized nature of the
President’s remarks make it difficult to determine specific objections that might arise
in the implementation of the act, it may be assumed that President Bush determined
that the requirements imposed by Congress under these portions of the act raised
separation of powers concerns to the extent that they could be construed as impinging
upon core presidential powers or impairing the President’s ability to protect national
security information or deliberations with his advisors.
Regarding the concerns voiced over the executive’s foreign affair prerogatives,
it should be noted that the Supreme Court has proscribed legislative attempts to
extend congressional power into what could be called the “core functions” of the
executive branch.69 However, the President’s citation of this maxim in his signing
statement could be seen as a hortatory assertion of broad executive authority
regarding the conduct of foreign affairs that does not acknowledge the substantial
authority that is likewise possessed by Congress in this context. Specifically, while
it is generally conceded that there are some powers enjoyed by the President alone
regarding foreign affairs,70 it is likewise evident that Congress possesses wide
authority to promulgate policies respecting foreign affairs.71 Congress has often
exercised this authority to determine policy objectives for the United States in
international negotiations and to require subsequent legislative approval of
international agreements before they may enter into force for the United States.72
69 In Bowsher v. Synar, 478 U.S. 714 (1986), for instance, the Court interpreted the
Separation of Powers doctrine as it applied to the Gramm-Rudman Deficit Reduction Act.
Under the act, the Comptroller General was empowered to review deficit estimates from the
Office of Management and Budget and the Congressional Budget Office, and to mandate
spending reductions to meet a specified deficit level. This report by the Comptroller General
would then be forwarded to the President who was required to issue an order enforcing the
spending reductions. The order would become effective unless Congress passed legislation
which reduced spending to meet deficit estimates. Furthermore, the Comptroller General
could only be removed by Congress, via a joint resolution. Id. at 728. The Supreme Court
found that the act imbued the Comptroller General, an official appointed by the President,
but removable by Congress, with the power to interpret provisions of the act, and to dictate
the means by which the executive branch implemented budget reduction measures. Id. at
728. Accordingly, the Court determined that the Comptroller General, a legislative branch
officer, was, in essence, performing the functions of an executive officer in executing a law
passed by Congress, a duty constitutionally committed to an officer of the executive branch.
Id. at 733. This dynamic rendered the act unconstitutional, as the Court explained, because
of the maxim that “once Congress makes its choice in enacting legislation, its participation
ends.” Id. at 733. Subsequent to enactment, Congress may “control the execution of its
enactment only indirectly ... by passing new legislation.” Id. at 734. The Court determined
that by placing the authority to implement the act in an officer subject only to congressional
removal, Congress in effect “retained control over the execution of the act” and
unconstitutionally “intruded into the executive function.” Id. at 734. See also, Plaut v.
Spendthrift Farm, 514 U.S. 211 (1995) (striking down legislative assumption of judicial
power).
70 The President’s fundamental authority to decide whether or not to recognize foreign states
or governments and to maintain diplomatic relations with them, “is implied in the
President’s express constitutional power to appoint Ambassadors ... and to receive
Ambassadors ... and his implied power to conduct the foreign relations of the United States.”
American Law Institute, Restatement (Third) of the Foreign Relations of the United States,”
§204, Comment A (1987).
71 Congress, in which is vested “[a]ll legislative powers,” Article I, §1, is authorized to tax
and spend “to ... provide for the common Defence,” id. §8 cl. 1, “[t]o regulate Commerce
with foreign Nations,” id., §8 cl. 3, and to make all laws that are necessary and proper to
execute the foregoing powers as well as all other powers vested by the Constitution in the
U.S. Government or in any government department or officer. Id., §8 cl. 18.
72 American Law Institute, “Restatement (Third) of the Foreign Relations of the United
States,” (1987) at §303(2) (“the President, with the authorization or approval of Congress,
may make an international agreement dealing with any matter that falls within the powers
of Congress and of the President under the Constitution.”). See also, Congressional
(continued...)
Accordingly, while there may be valid constitutional concerns regarding certain
provisions of the act regarding the setting of conditions for sanctions, the President’s
signing statement does not raise any specific objections thereto. Instead, the
statement makes a generalized assertion regarding presidential authority over foreign
affairs that appears to be of little substantive weight in light of the dispersed
allocation of power between the political branches in this context.
The President’s statement that the executive branch will construe provisions of
the act requiring the submission of information to Congress “in a manner consistent
with the President’s constitutional authority to withhold information,” would also
appear to constitute a generalized declaration of executive power, given that it
likewise does not raise any specific objection to the provision, or provide any
substantive analysis of how its requirements might impinge upon executive authority.
To the extent that this portion of the signing statement might be taken to indicate a
position on the part of the executive that it possesses an absolute right to withhold
documents from Congress, it should be noted that judicial and historical precedents
run to the contrary. Regarding the duties imposed on the Secretary of State under the
act, it is well established that Congress may impose reporting requirements upon
executive branch officials,73 and nothing in the act purports to strip the President of
his authority to assert a valid claim of privilege, or to withhold documents on the
basis of national security. Regarding claims of privilege with regard to presidential
communications, the Court held in United States v. Nixon that the notion of privilege
is constitutionally rooted, and that when invoked by the President, the materials at
issue are deemed “presumptively privileged.”74 However, the Court further held that
the privilege is qualified, not absolute, and may be overcome by an adequate showing
of need.75
The Court in Nixon indicated that the President’s authority to “protect military,
diplomatic or sensitive national security secrets,” was significantly greater than his
power to protect the confidentiality of executive communications.76 This statement
by the Court was consistent with previous decisions recognizing presidential
authority with regard to military and diplomatic matters. In C.&S. Airlines v.
Waterman Corp., for instance, the Court stated that it would be “intolerable that
courts, without the relevant information, should review and perhaps nullify actions
72 (...continued)
Research Service, “Treaties and Other International Agreements: The Role of the United
States Senate; A Study Prepared for the Senate Committee on Foreign Relations,” 78-86
(January 2001) (S.R. 106-710).
73 See Walter Dellinger, Assistant Att’y Gen., Memorandum for the General Counsels of the
Federal Government, “The Constitutional Separation of Powers between the President and
Congress,” at 54-56 (May 7, 1996) (available at 1996 WL 876050).
74 United States v. Nixon, 418 U.S. 683, 705 (1974). For a thorough overview of the
executive privilege issues, see CRS Report RL30319, Presidential Claims of Executive
Privilege: History, Law, Practice and Recent Developments, by Morton Rosenberg.
75 Id. at 705, 706, 708.
76 Id. at 706.
of the Executive taken on information properly held secret.”77 It is important to note,
however, that principles governing judicial deference to the executive in this context
do not apply to access by Congress. In United States v. American Telephone and
Telegraph Co., the Court of Appeals for the District of Columbia rejected the
argument that “the Constitution confers on the executive absolute discretion in the
area of national security.”78 In support of this holding, the court explained:
While the Constitution assigns to the President a number of powers relating to
national security, including the function of commander in chief and the power
to make treaties and appoint Ambassadors, it confers upon Congress other
powers equally inseparable from the national security, such as the powers to
declare war, raise and support armed forces and, in the case of the Senate,79
consent to treaties and the appointment of ambassadors.
While acknowledging the powers conferred upon both branches in this context,
it is important to note that the court in AT&T rejected the notion that disputes over
such information were “‘political questions’ beyond the jurisdiction or proper role80
of [a] court.” Rather, the court left open the possibility that disputes over
information pertaining to national security could be resolved by the judiciary in the
event that Congress and the executive could not reach a compromise on a given
issue.81 Thus, while the aforementioned cases establish that the President has inherent
constitutional authority to protect the confidentiality of executive communications
and national security information, it is likewise apparent that these powers are not
absolute, with Congress possessing concordant authority to investigate and inquire
into such matters. Accordingly, it seems apparent that the President’s generalized
concerns regarding to the requirements of the act are not buttressed by any underlying
definitive right to withhold information from Congress.
These constitutional and legal principles are applicable to almost every other
signing statement that raises constitutional objections or challenges to congressional
enactments in foreign affairs or executive privilege contexts, in that the general
assertions of authority discussed above are the norm in these statements. This signing
statement is also typical of the Bush II Administration’s approach, given that there
is no indication that President Bush has in fact refused to follow any of the provisions
of the act at issue. In fact, President Bush has issued an executive order that both
implements sanctions as prescribed in the act and acknowledges the reporting
requirements imposed by the Secretary of State, without objection.
Direct Reporting Requirements. As noted in the ABA Report, President
Bush has also employed the signing statement to object to direct reporting
77 333 U.S. 103, 111 (1948).
78 567 F.2d 121, 128 (D.C. Cir. 1977).
79 Id. at 128.
80 Id. at 126 (quoting Baker v. Carr, 369 U.S. 186, 217 (1962).
81 Id. at 127.
requirements that have been imposed by Congress.82 However, these signing
statements are likewise generally unsupported by established legal principles
governing Congress’s authority to compel and receive information directly from
executive branch agencies. Congress has imposed direct reporting requirements on
executive branch officials since the first Congress. Legislation establishing the
Treasury Department required the Secretary to report to Congress and to “perform
all such services relative to the finances, as he shall be directed to perform.”83
Alexander Hamilton, serving as the first Secretary of the Treasury, submitted reports
to the House of Representatives pursuant to this command, and began each report
with an acknowledgment of the order of the house that had directed him to report.84
Furthermore, prior to the establishment of the President’s authority over the
executive branch budget process in the Budget and Accounting Act of 1921,85 each
agency submitted its annual budget request directly to Congress.86 Finally, the
Supreme Court has long recognized the validity of reporting requirements,87 and in
INS v. Chadha,88 the Court explicitly affirmed Congress’s authority to impose “report
and wait” provisions, distinguishing them from the unconstitutional legislative veto
provisions under review in that case. In light of these factors, it seems apparent that
signing statements objecting to direct reporting requirements represent an attempt to
sensitize executive personnel to the wishes of the President and to assert a broad
conception of presidential power in the face of congressional enactments, rather than
a definite and substantive refusal to enforce a congressional enactment.
Legislative Veto Provisions. President Bush has also been quite active in
issuing signing statements that object to bills passed by Congress that impose a
legislative veto over actions taken by the executive branch. Presidential action in this
context is particularly interesting, as it provides an example of a context in which the
Presidents’ declarations are on solid constitutional footing, as well as the opportunity
to analyze two conceptually related arguments that have been raised against the
issuance of signing statements generally.
As noted above, the Supreme Court’s holding in INS v. Chadha invalidated the
use of a legislative veto by Congress by virtue of the Court’s determination that such
action violates the Bicameralism and Presentment Clause of the Constitution. Despite
this ruling, Congress has continued to pass legislation imposing facially invalid
82 ABA Task Force Report, n. 3, supra, at 16.
83 Act of September 2, 1789, Ch. 12, §2, 1 Stat. 65, 66.
84 See, e.g., 2 Annals of Cong. 1991 (1790) (report on Public Credit); id. at 2031 (Report on
a National Bank); 3 Annals of Cong. 971 (1791) (Report on Manufactures) (noting that
“[t]he Secretary of the Treasury, in obedience to the order of the House of
Representatives...”).
85 Ch. 18, 42 Stat. 20 (1921) (amended 1974).
86 See Morton Rosenberg, “Congress’s Prerogative Over Agencies and Agency
Decisionmakers: The Rise and Demise of the Reagan Administration’s Theory of the
Unitary Executive,” 57 Geo. Wash. L. Rev. 627, 674 (1989).
87 See, e.g., Sibbach v. Wilson & Co., 312 U.S. 1, 14-15 (1941).
88 462 U.S. 919, 935 n. 9 (1983).
legislative veto provisions. Prior administrations objected to these provisions in
signing statements, and the Bush II Administration has maintained this practice,
issuing approximately 47 statements that contain objections to provisions in
legislation passed by Congress that it claims violate the separation of powers
principles delineated in Chadha.89 An example of this approach may be found in
President Bush’s signing statement accompanying the Agriculture, Rural
Development, Food and Drug Administration, and Related Agencies Appropriations
Act. There, the President declared that “[t]he executive branch shall construe certain
provisions of the act that purport to require congressional committee approval for the
execution of a law as calling solely for notification, as any other construction would
be inconsistent with the principles enunciated by the Supreme Court of the United
States in INS v. Chadha.”90
While signing statements that raise broad assertions of executive authority and
general constitutional objections to bills passed by Congress may indicate an overly
broad conception of presidential power, statements that object to legislative vetoes
are supported by Supreme Court precedent. Relatedly, it could be argued that the
apparent purpose behind the continued congressional practice of imposing such
requirements in turn illustrates the dynamic underlying the objections and assertions
of authority that characterize signing statements. Despite the apparent facial
unconstitutionality of such provisions, relatively little complaint has been voiced
concerning Congress’s persistence in passing bills that contain legislative veto
provisions. The apparent motivation for this practice arises from the fact that while
Congress and its committees may not anticipate formal legal compliance with such
provisions and often do not expect to be able to enforce them, pragmatic political
considerations oftentimes result in substantive acquiescence by the agencies
involved.91 In essence, the passage of legislative veto provisions subsequent to
Chadha constitutes an attempt by Congress to leverage informal compliance from
executive agencies, the implicit message being that the affected agency may face
difficulties in the legislative, oversight or budgetary processes if it does not accede
to congressional will in this context. Accordingly, a presidential signing statement
objecting to a legislative veto provision serves not only as a response to perceived
encroachment on executive branch prerogatives, but also as a declaration that the
administration expects, and will be supportive of, the rejection of such congressional
assertions of authority by affected agencies.
Institutional Implications of Signing Statements
The generalized nature of the constitutional objections and assertions of
authority that pervade signing statements, coupled with the fact that such instruments
do not have any legal force or effect in and of themselves, lends support to the notion
89 See United States Senate, Committee on the Judiciary, Statement of Michelle E.
Boardman, Deputy Assistant Attorney General, Office of Legal Counsel, United States
Department of Justice, on Presidential Signing Statements, June 27, 2006.
90 Id.
91 See Louis Fisher, “The Legislative Veto: Invalidated, it Survives,” 56-AUT Law &
Contemp. Probs. 273 (1993).
that the Bush II Administration is employing these instruments as a means by which
it can make broad claims to extensive and exclusive authority. This approach
necessarily raises questions regarding the impact of signing statements on the
exercise of executive authority in relation to the traditional roles of Congress and the
Judiciary.
Statutory Construction and the Courts. With regard to the Judicial
Branch, the primary consideration is whether the courts have in fact begun to give a
degree of determinative weight to signing statements in a manner akin to traditional
sources of legislative history. As noted above, one of the factors that appears to have
motivated the increase in the issuance of signing statements beginning in the Reagan
Administration was to encourage judicial reliance upon the viewpoints contained
therein. After persuading West Publishing Company to include signing statements
along with legislative histories contained in the United States Code Congressional
and Administrative News, Attorney General Edwin Meese stated that this inclusion
would facilitate the use of signing statements by courts “for future construction of92
what the statute actually means.”
Despite these efforts, it does not appear that courts have incorporated signing
statements in the manner hoped for by the Reagan Administration, presumably due
to traditional practice as motivated by constitutional precepts. In particular, it could
be argued that while there is little support for the notion that the Constitution
somehow implicitly forbids the issuance of signing statements, the nature of the
President’s role in vetoing or approving legislation has nonetheless militated against
courts granting interpretive weight to signing statements. Specifically, while the
Constitution provides that the President is to note his objections upon the veto of a
bill, there is no corresponding requirement that he announce his reasons for its
approval. In turn, there is a constitutionally prescribed procedure by which Congress
is to consider objections raised by a President in formulating a response to a veto, but
not for congressional response to a signing statement. While this dichotomy does not
require that courts disregard signing statements (as there is likewise no corresponding
constitutional validation of committee reports, floor debates and other legislative93
history), it arguably lends weight to the notion that presidential signing statements
should be discounted when they conflict with congressional explanations that have
traditionally enjoyed judicial deference. In particular, a well established rule for
resolving conflicts in legislative history establishes that when the two Houses have
disagreed on the meaning of identical language in a bill that did not go to conference,
the explanation that was before both Houses prevails in the event that the court turns
to the legislative history. The rationale is that congressional intent should depend
upon the actions of both Houses. Accordingly, given that Congress has no
opportunity to act in response to interpretations set forth in signing statements, there
92 See CRS Report 97-589, Statutory Interpretation: General Principles and Recent Trends,
by George Costello, at p. 48 (2006).
93 Id. at 49.
is lessened support for the notion that courts should rely upon them to interpret the
aim of a congressional enactment.94
A related issue arising from this constitutional provision centers on the fact that
the President may only approve or veto a bill in its entirety. The President does not
possess inherent line-item veto authority, and it is well established that Congress
cannot grant the President such authority by statute.95 Thus, it could be argued that
if the courts were to give determinative weight to signing statements in negating
statutory provisions a President would effectively possess power analogous to a line
item veto.96 However, there is no indication that this has occurred, rendering this
dynamic of greater interest in relation to the impact of signing statements on
executive branch interaction with Congress.
Information contained in signing statements may be entitled to more significant
judicial consideration if the President or his Administration worked closely with
Congress in developing the legislation, and if the approved version incorporated the
President’s recommendations.97 This principle can be applied not only to bills
introduced at the Administration’s behest, but also to bills the final content of which
resulted from compromise negotiations between the Administration and Congress.98
In such circumstances, of course, signing statements are used to explain rather than
negate congressional action, and are most valuable as lending support to
congressional explanations.
Although signing statements are not generally treated as a significant part of
legislative history by the courts, they nonetheless affect interpretation by virtue of the
effect of directives contained therein on actions taken by administering agencies.
Courts grant a high degree of deference to interpretations of agencies charged with
implementing statutes, premised on the notion that Congress has authorized the
agency to “speak with the force of law” through a rulemaking or other formal
process. Congress has not authorized the President to speak with the force of law
through signing statements. So, although signing statements may influence or even
control agency implementation of statutes, it is the implementation, and not the
signing statement itself, that would be measured against the statute’s requirements.
94 Id. at 49-50.
95 Clinton v. City of New York, 524 U.S. 417 (1998) (invalidating the Line Item Veto Act as
inconsistent with the Presentment Clause of Art. I, § 7, cl. 2).
96 Marc N. Garber and Kurt A. Wimmer, “Presidential Signing Statements as Interpretations
of Legislative Intent: An Executive Aggrandizement of Power,” 24 Harv. J. on Legis. 363,
97 “It may ... be appropriate for the President, when signing legislation, to explain what his
(and Congress’s) intention was in making the legislation law, particularly if the
Administration has played a significant part in moving the legislation through Congress.”
98 “[T]hough in some circumstances there is room for doubt as to the weight to be accorded
a presidential signing statement in illuminating congressional intent..., President Reagan’s
views are significant here because the Executive Branch participated in the negotiation of
the compromise legislation.” United States v. Story, 891 F.2d 988, 994 (2d Cir. 1989).
At most, signing statements might be considered analogous to informal agency
actions, entitled to respect only to the extent that they have the power to persuade.99
Ultimately, it does not appear that the courts have relied on signing statements
in any appreciably substantive fashion. As touched upon above, the references made
to signing statements in the Supreme Court’s decisions in Bowsher v. Synar and INS
v. Chadha were perfunctory in nature. Furthermore, in Hamdan v. Rumsfeld, the
Supreme Court made no reference whatsoever to the President’s signing statement
in rejecting the contention that the Detainee Treatment Act did not apply to pending
habeas petitions of Gauntanamo detainees.100
Impact on Congress. One of the main complaints lodged by the ABA Task
Force in opposition to the issuance of presidential signing statements is based on the
viewpoint that the objections and challenges raised therein improperly circumvent101
the veto process delineated in the Constitution. According to this argument, the
President, by refusing to veto a bill that contains provisions he does not intend to
enforce, expands the presidential role in lawmaking beyond the constitutional
parameters of “recommending ... laws he thinks wise and ... vetoing ... laws he thinks102
bad,” and deprives Congress of the opportunity override a presidential veto.
While this position has a degree of intuitive appeal in light of the maxims
pronounced in cases such as Youngstown, it could misapprehend the nature of signing
statements as presidential instruments as well as the actual substantive concerns that
underlie their issuance. First, as the signing statements discussed above illustrate, it
is exceedingly rare for a President to make a direct announcement that he will
categorically refuse to enforce a provision he finds troublesome. Instead, the concerns
voiced in the statements are generally vague, with regard both to the nature of the
objection and what circumstances might give rise to an actual conflict. The ABA
Task Force Report’s concern on this point also seems to assume that the
interpretation and application of congressional enactments is a black and white issue,
when, in reality, inherent ambiguity in the text almost always allows for competing
interpretations of what the provision at issue requires. Given this dynamic, it is not
surprising that a President’s interpretation of a law, as announced in a signing
statement, would be informed by a broad conception of executive authority. More
fundamentally, a signing statement does not have the effect of a veto. A bill that is
vetoed does not become law unless reenacted by a supermajority vote of the
Congress. Conversely, a bill that is signed by the President retains its legal effect and
character, irrespective of any pronouncements made in a signing statement, and
remains available for interpretation and application by the courts (if the provision is
justiciable) and monitoring by Congress.
99 See Costello, n. 92, supra.
100 Hamdan v. Rumsfeld, No. 05-154, slip op. (U.S. June 29, 2006). It is interesting to note,
however, that Justice Scalia chided the Majority for “wholly ignor[ing]” the President’s
signing statement in his dissent. Id. at 113-14.
101 ABA Task Force Report, n. 3, supra, at 21.
102 Youngstown, 343 U.S. at 587.
A closely related argument, also raised in the ABA Report, is that signing
statements that raise objections to provisions of an enactment constitute the exercise
of a line-item veto.103 In Clinton v. New York, the Supreme Court held that the Line
Item Act violated the constitutional requirement of bicameralism and presentment by
authorizing the President to essentially create a law which had not been voted upon
by either House or presented to the President for approval and signature.104
Accordingly, this argument posits that when the President issues a signing statement
objecting to certain provisions of a bill or declaring that he will treat a provision as
advisory so as to avoid a constitutional conflict, he is, in practical effect, exercising
an unconstitutional line-item veto. The counterpoints to this argument are similar to
those adhering to the premise that signing statements constitute an abuse of the veto
process. While an actual refusal of a President to enforce a legal provision may be
characterized as an “effective” line-item veto, the provision nonetheless retains its
full legal character and will remain actionable, either in the judicial or congressional
oversight contexts.
Ultimately, both of these objections, as with the general focus of concern on
signing statements as presidential instruments, may obscure the substantive issue that
has apparently motivated the increased use of the constitutional signing statement by
President Bush: an expansive conception of presidential authority, coupled with a
willingness to utilize fully mechanisms that will aid in furthering and buttressing that
philosophy. Given the general and hortatory nature of the language that characterizes
these signing statements, it seems apparent that President Bush is using this
instrument as part of a comprehensive strategy to strengthen and expand executive
authority generally, as opposed to a de facto line item veto. Indeed, while the breadth
and number of provisions called into question by President Bush draw attention to
the institution of the signing statement itself, Professors Curtis A. Bradley and Eric
A. Posner have stated that “critics of the Bush administration’s use of signing
statements have not identified a single instance where the Bush Administration
followed through on the language in the signing statement and refused to enforce the
statute as written.”105
This declaration is arguably belied by a report from the Government
Accountability Office (GAO) that identified six provisions of law that were
addressed in various signing statements that it determined were not “executed as
written” by the executive branch.106 Specifically, GAO reviewed 11 signing
statements that accompanied appropriations acts for FY2006, and identified 160
specific provisions that were addressed in the signing statements. GAO then
examined 19 of these provisions “to determine whether the agencies responsible for
103 ABA Task Force Report, n. 3, supra, at 18; See also, Bradley and Posner, n. 12, supra,
at 339.
104 Clinton, 524 U.S. at 446.
105 Bradley and Posner, n. 12, supra, at 333.
106 Government Accountability Office, “Presidential Signing Statements Accompanying the
Fiscal Year 2006 Appropriations Acts,” B-308603, June 18, 2007.
their execution carried out the provisions as written.”107 Of the six provisions
identified by GAO as not having been executed as written, the first three arose from
agency failures or refusals to seek committee approval prior to taking certain actions;
the fourth stemmed from the Department of Defense (DOD) failing to include
separate budget justifications to Congress on various operations in its 2007 budget
submission; the fifth stemmed from GAO’s determination that the DOD responded
to a congressional inquiry in 38 days instead of the 21-day period specified in law;
and the sixth example of noncompliance stemmed from GAO’s finding that the
Customs and Border Patrol (CBP) did not relocate checkpoints in the Tucson sector
every seven days as directed in the relevant appropriations act.108
While these examples may be cited in support of the proposition that
presidential signing statements constitute the effective exercise of a line item veto,
it should be noted that GAO stated in its report that “[a]lthough we found the
agencies did not execute the provisions as enacted, we cannot conclude that agency
noncompliance was the result of the President’s signing statements.”109 This
statement is significant, in that while it may of course be argued that these examples
of noncompliance constitute prima facie evidence that signing statements are being
given substantive legal effect under the current administration, the fact remains that
the GAO report presents no particularized information, beyond their existence, that
these departments and agencies were relying on the relevant presidential signing
statements as a basis to support such noncompliance. Specifically, the GAO report
does not identify any declarations or documents that indicate that presidential signing
statements played a role in the actions taken by the aforementioned departments and
agencies. Furthermore, it could be argued that the scope and nature of the
noncompliance in the provisions identified by GAO militates against a summary
conclusion that the pertinent signing statements motivated such noncompliance.
While the report stressed that GAO “did not examine the constitutionality of the
provisions to which the President objected,”110 the first three examples cited in the
GAO report all appear to involve congressional imposition of legislative vetoes of
the type expressly rejected by the Supreme Court in INS v. Chadha.111 Accordingly,
both the signing statements and executive noncompliance as to these three provisions
appear to be supported by explicit Supreme Court precedent.112 Regarding the fourth
provision, the DOD’s justification for noncompliance was based on its determination
that the costs of the covered operations were “difficult to predict because of the
continuing insurgent activity,” and that it was thus “not able to estimate with a great
certainty,” preventing its inclusion in the budget submission.113 While the DOD’s
submission constitutes a failure to comply with the literal terms of the appropriations
107 Id. at 1.
108 Id. at 10.
109 Id. at 9.
110 Id. at 4.
111 462 U.S. 919 (1983).
112 See n. 89 and accompanying text, supra.
113 See GAO Report, n. 106, supra at 24.
act, there is no clear evidence that the relevant signing statement played a
determinative role in the noncompliance, and the GAO report does not contain any
information that serves to rebut the veracity of the DOD’s reasons for not including
the budgetary information as directed. The fifth example cited by GAO illustrates a
literal failure on the part of the DOD to respond to a congressional inquiry within a
specified time frame. However, there are numerous examples of agency failures to
meet statutory deadlines, irrespective of the presence of a correlating signing
statement. Furthermore, given the brief delay period (38 days as opposed to the 21
required by law), it seems unlikely that this incidence of noncompliance may be
successfully described as a departmental refusal to enforce the law on the basis of a
presidential signing statement. Finally, regarding the sixth example identified by
GAO, the CBP justified its noncompliance on its determination that following the
congressional directive would be inconsistent with “Border Patrol mission
requirements.” The CBP additionally noted that only one location had been approved
for some checkpoints in the Tucson sector, rendering relocation impossible. The CBP
stated that these checkpoints were often shut down for a “short period in an endeavor
to satisfy the advisory provision” contained in the pertinent appropriations act.114 This
instance of noncompliance is perhaps the most explicit example of a signing
statement being given substantive effect by a department, as the language used by the
CBP closely mirrors the President’s declaration in his signing statement that “the
executive branch shall construe the relocation provision as advisory rather than
mandatory.”115 However, the GAO report does not elaborate on this apparent link,
and does not contain any information that may be used to evaluate the substance of
the CBP’s justifications for noncompliance. Thus, while the provisions identified by
GAO may be cited as examples of executive refusal to enforce the law subsequent
to the issuance of a signing statement, the information contained above could be
interpreted as providing reasons for noncompliance that are not directly attributable
to the existence of a presidential signing statement.
In light of these factors, some might argue that the Bush II Administration’s
practice of issuing signing statements is beneficial, in that the statements alert
Congress to the universe of provisions that are held in disregard by the executive
branch, in turn affording Congress the opportunity not only to engage in systematic
monitoring and oversight to ensure that its enactments are complied with, but to
assert its prerogatives to counteract the broad claims of authority that undergird the
statements. In particular, while the focus on the institution of the presidential signing
statement as a source of controversy may be misplaced, congressional interest in the
protection of its own institutional prerogatives could ultimately motivate a reaction
to the Bush II Administration’s expansive view of presidential authority as expressed
not only in signing statements, but in executive orders, OLC opinions, internal White
House Memoranda, and refusals to accede to congressional and legislative branch
agency requests for information. All of these tools have been used by President Bush
to exert control over executive personnel in their administration of statutory
obligations and interaction with Congress. Additionally, the broad and persistent
nature of the claims of executive authority forwarded by President Bush appear
designed to inure Congress, as well as others, to the belief that the President in fact
114 See GAO Report, n. 106, supra at 35.
115 See GAO Report, n. 106, supra at 35.
possesses expansive and exclusive powers upon which the other branches may not
intrude.
Three bills have been introduced in the 110th Congress with the aim of
restraining the use of signing statements, but it does not appear that any of these
proposals would appreciably alter or confine the current administration’s approach.
Section 3(a) of H.R. 264 provides that “[n]one of the funds made available to the
Executive Office of the President, or to any Executive agency ... from any source may
be used to produce, publish, or disseminate any statement made by the President
contemporaneously with the signing of any bill or joint resolution presented for
signing by the President.”116 This section does not give any indication as to when
such a statement would cease to be “contemporaneous” with the signing of a bill, but
under a practical interpretation of the term, it seems unlikely that this section would
impose a substantial impediment to the issuance of signing statements. This section
would also not appear to prevent contemporaneous declarations by executive branch
agencies. Section 4 of H.R. 264 goes on to state that “[f]or purposes of construing or
applying any Act enacted by the Congress, a governmental entity shall not take into
consideration any statement made by the President contemporaneously with the
President’s signing of the bill or joint resolution that becomes such Act.” This
command indicates that the first section may not necessarily prevent a President from
issuing a signing statement. Furthermore, nothing in the bill would prevent a
President from simply issuing memoranda or other declarations aimed at guiding
agency interpretation and implementation.117 A bill essentially identical to H.R. 264
was introduced in the 109th Congress.118
Additionally, two identical bills, S. 1747 and H.R. 3045, would purport to
prohibit any Federal or State court from relying on or deferring to a presidential
signing statement as a source of authority “[i]n determining the meaning of any Act
of Congress.”119 The bills further provide that both the House and the Senate, acting
respectively through Office of General Counsel for the House of Representatives and
the Office of Senate Legal Counsel, shall be permitted to participate as amicus curiae
in any case arising in Federal or State court that involves the construction,
constitutionality, or both, of “any Act of Congress in which a signing statement was
issued.” Finally, the bills would establish that in any suit involving a signing
statement, Congress may pass a concurrent resolution clarifying congressional intent
or findings of fact, and that such a resolution shall be submitted “into the record of
the case as a matter of right.” The potential effect and utility of a provision
forbidding courts from relying on, or deferring to, presidential signing statment is
116 H.R. 264, 110th Cong., 1st sess. (2007). Section 3(b) of H.R. 264 provides that section 3(a)
“shall apply only to statements made by the President regarding the bill or joint resolution
presented for signing that contradict, or are inconsistent with, the intent of Congress in
enacting the bill or joint resolution or that otherwise encroach upon the Congressional
prerogative to make laws.”
117 See Louis Fisher, “Signing Statements: What to Do?,” The Forum: Vol. 4: No. 2, Article
118 H.R. 5486, 109th Cong., 2nd sess. (2006).
119 S. 1747, § 4, 110th Cong., 1st Sess. (2007); H.R. 3045, § 4, 110th Cong., 1st Sess. (2007).
unclear; apart from the potential constitutional issues adhering to congressional
attempts to restrict courts from considering such information, there is little indication
that signing statements have played any substantive role in influencing judicial
rulings.120 Likewise, the impact of provision allowing for the submission of a
“clarifying” concurrent resolution is open to speculation. Any such clarification by
Congress would not have the force and effect of law, and could be viewed by the
judiciary as a species of post-enactment legislative history .121
Various other bills were introduced in the 109th Congress that would have
attempted to constrain the issuance, or limit the effect, of signing statements.
H.J.Res. 87122 and H.J.Res. 89123 would have required the President to provide
notification to Congress “[i]f at the time of enactment of a law the President makes
a determination not to carry out any duly enacted provision of the law,” and would
have established expedited procedures in the House for consideration of legislation
developed in response to such a determination.124 The scope of this legislation is not
entirely clear. As touched upon above, it is quite rare for a signing statement to
contain a specific declaration that a law will not be enforced. Furthermore, the
generalized nature of the language that is employed in such statements would usually
make it difficult to assert that the President had made a concrete determination to not
enforce the law (raising the additional possibility that the President would simply
ignore this requirement on the grounds that no such determination had been made).
Finally, S. 3731125 would have attempted to imbue both Chambers of Congress
with legal standing to challenge a signing statement, providing that any court of the
United States would be authorized to rule on the legality of a signing statement “upon
the filing of an appropriate pleading by the United States Senate, through the Office
of Senate Legal Counsel, and/or the United States House of Representatives, through
the Office of General Counsel for the United States House of Representatives.”126 It
is not clear that this provision would satisfy either the “case or controversy” or
120 See n. 92 and accompanying text, supra.
121 See Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 118 n.
13 (1980) (stating “even when it would otherwise be useful, subsequent legislative history
will rarely override a reasonable interpretation of a statute that can be gleaned from its
language and legislative history prior to its enactment.”).
122 H.J.Res. 87, 109th Cong., 2nd sess. (2006).
123 H.J.Res. 89, 109th Cong., 2nd sess. (2006).
124 These bills are identical, except that H.J.Res. 89 provides that the President would only
be required to submit a notification to the congressional intelligence committees with regard
to determinations involving classified materials. Section 3 of both resolutions also provide
that any Member of the House would be authorized to request a report from the General
Counsel of the House describing any legal actions that could be brought to challenge the
President’s refusal to enforce a provision of law.
125 S. 3731, 109th Cong., 2nd sess. (2006).
126 Id. at § 5.
standing requirements of Article III of the Constitution.127 This bill would likewise
have prohibited any state or federal court from relying on, or granting deference to,
a presidential signing statement as a source of authority.128
While the broad and continuing assertions of authority made by President Bush
in numerous signing statements have the potential to impact Congress at a practical
and institutional level, both by discouraging federal officials from engaging in open
interaction with congressional committees and staff and by arguably discounting the
constitutional prerogatives enjoyed by Congress, the aforementioned legislative
proposals may be seen as failing to address the purpose and impact of these
instruments. By focusing its efforts on attempting to constrain the President from
issuing signing statements that call the validity of its enactments into question,
Congress could leave unaddressed any risks posed to its institutional power by the
broad conception of presidential authority that arguably motivates their issuance. It
does not seem likely that a reduction in the number of challenges raised in signing
statements, whether caused by procedural limitations or political rebuke, will
necessarily result in any change in a President’s conception and assertion of
executive authority. Accordingly, a more effective congressional response might be
to focus on any substantive actions taken by the Bush II Administration that are
arguably designed to embed that conception of presidential power in the
constitutional framework.
Conclusion
Presidential signing statements have a long historical pedigree and there is no
discernible constitutional or legal impediment to their issuance. While such
statements have become increasingly common since the Reagan Administration and
have increasingly been utilized by Presidents to raise constitutional or interpretive
objections to congressional enactments, that increased usage does not render them
unconstitutional. While the broad assertions of executive authority contained in these
statements carry significant implications, both practical and constitutional, for the
traditional relationship between the executive branch and Congress, they do not have
legal force or effect, and have not been utilized to effect the formal nullification of
laws. Instead, it appears that recent administrations, as made apparent by the
voluminous challenges lodged by President George W. Bush, have employed these
instruments in an attempt to leverage power and control away from Congress by
establishing these broad assertions of authority as a constitutional norm. It can be
argued that the appropriate focus of congressional concern should center not on the
issuance of signing statements themselves, but on the broad assertions of presidential
authority forwarded by Presidents and the substantive actions taken to establish that
authority. Accordingly, a robust oversight regime focusing on substantive executive
action, as opposed to the vague and generalized assertions of authority typical of
signing statements, might allow Congress in turn to more effectively assert its
constitutional prerogatives and ensure compliance with its enactments.
127 See, e.g., Raines v. Byrd, 521 U.S. 811 (1997). See also, Laurence H. Tribe, “Signing
Statements are a Phantom Target,” The Boston Globe, August 9, 2006.
128 S. 3731, § 4.