USA Law

Signing Statement

Signing Statement in the United States

Signing Statement

Introduction to Signing Statement

Signing Statement, opinion or commentary issued by the president of the United States upon signing legislation passed by the U.S. Congress. The written statement may have various purposes. It may simply declare the president’s reasons for approving the law, or it may indicate how the president expects federal agencies to carry out the legislation. Some presidents have used signing statements to indicate how they are interpreting a provision within a law, and several presidents have used them to announce that a provision within the law is unconstitutional and should either go unenforced or be challenged in the courts. Many legal experts believe it is unconstitutional for a president to use a signing statement to declare that provisions of a law will not be enforced.

Signing statements were used rarely in U.S. history until the late 20th century. In their early use, they were often merely ceremonial. The president thanked the legislators involved in the law’s passage or promoted the benefits of the new legislation. On a few occasions during the 1800s, the president used a signing statement to express disagreement with one or more provisions of a bill.

Signing statements became more common beginning in the mid-1980s. In the early 21st century, the administration of President George W. Bush used a record number of signing statements. By 2007 Bush had attached signing statements to more than 150 bills, and had challenged more than 1,100 provisions within those bills. All previous U.S. presidents combined had challenged only 600 provisions.

Bush’s use of signing statements was controversial and was disputed by the American Bar Association (ABA), the nation’s principal legal organization. Both conservatives and liberals accused the Bush administration of eroding the nation’s system of checks and balances and separation of powers.

Under the U.S. Constitution, the role of Congress is to enact laws, and the role of the president is to execute, or enforce, the laws. Article II, Section 3 of the Constitution states the president “shall take Care that the Laws be faithfully executed.” If the president disagrees with the law, he has the authority to veto it. A presidential veto can be overridden with a two-thirds vote in the House of Representatives and in the Senate. The Constitution contains no provision for a presidential signing statement. The Supreme Court of the United States has also ruled that the Constitution forbids a line-item veto-that is, the veto of a provision within a law. The President can only veto an entire bill, not certain provisions within a bill.” (1)

Resources

Notes and References

Guide to Signing Statement

Signing Statements Under George H. W. Bush

Introduction to Signing Statement

Signing statements continued to be endorsed during the administration of President George H. W. Bush. Bush’s attorney general, Richard Thornburgh, complained in a speech to the Federalist Society, a conservative legal group cofounded by Calabresi, that the president’s veto power was no longer adequate. Although Thornburgh stopped short of advocating the use of signing statements as a line-item veto, the first Bush administration issued signing statements to challenge 232 provisions of bills passed by Congress. About a third of those challenges involved matters relating to foreign policy.” (1)

Resources

Notes and References

Guide to Signing Statement

Signing Statements Under Clinton

Introduction to Signing Statement

By the time of the administration of President Bill Clinton, the frequent use of signing statements was well established, and Clinton issued them, too. Clinton wrote signing statements challenging 140 sections of bills. More than half of Clinton’s statements involved legislation affecting foreign policy.

The head of the Office of Legal Counsel under Clinton specifically approved the use of signing statements for asserting presidential authority. For example, a November 1993 OLC memo argued: “If the President may properly decline to enforce a law, at least when it unconstitutionally encroaches on his powers, then it arguably follows that he may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing. If so, then a signing statement…can be a valid and reasonable exercise of Presidential authority.” Clinton’s advisers, however, pointed out that if the courts upheld the law’s constitutionality, the president would have no choice but to obey it.

Clinton often made use of signing statements in the context of his authority as commander-in-chief. After Congress passed a law in 1997 requiring a 15-day notice before any U.S. military equipment could be transferred to United Nations peacekeeping forces, Clinton wrote a signing statement saying that as commander-in-chief he had the power to ignore the 15-day notice.

In another instance of a signing statement, Clinton took the same approach that Roosevelt had in 1943. Rather than directly refusing to enforce what he saw as an unconstitutional provision within a law, Clinton announced that he would obey it only until it was repealed or challenged in the courts. When a conservative congressman attached a provision to an appropriations bill stipulating that any member of the armed services infected by the human immunodeficiency virus (HIV) must be discharged from the service, Clinton’s signing statement called the provision unconstitutional. Clinton directed the attorney general not to uphold the ban if it was challenged in court.” (1)

Resources

Notes and References

Guide to Signing Statement

Signing Statements Under George W. Bush

Introduction to Signing Statement

President George W. Bush’s use of signing statements became noteworthy for several reasons. First was their frequency. Second was his open declaration that he could choose to ignore provisions of a law under his authority as the head of the executive branch or as commander-in-chief of the armed forces. Unlike previous presidents, Bush did not challenge the constitutionality of a law’s provisions. Instead, he simply asserted that he had the power to ignore the law’s provisions. And third was Bush’s frequent reference to a controversial legal theory known as the unitary executive theory, which he cited as his authority for how to interpret a law or whether or not to implement its provisions.” (1)

Resources

Notes and References

Guide to Signing Statement

Signing Statements Under George W. Bush Frequency of Signing Statements Under Bush

Introduction to Signing Statement

Whereas all previous presidents combined had questioned about 600 legal provisions in their signing statements, Bush disputed 500 in his first term alone. Bush’s use of this device was so commonplace that he did not issue a presidential veto until late in 2007, by which time he had challenged 1,100 provisions in 150 bills. Republican control of Congress for most of that period appeared to make little difference as Bush, a Republican president, routinely issued signing statements either ass
erting presidential disagreement with legislative provisions or indicating that he was interpreting those provisions under the unitary executive theory.

Bush’s signing statements effectively stymied the enforcement of some of the provisions he challenged. A 2004 study by the Government Accountability Office (GAO), a nonpartisan U.S. agency, found that federal agencies failed to enforce 6 out of 16 provisions that Congress had enacted but Bush had disapproved. Among the laws affected by signing statements were the Patriot Act, the Military Commissions Act, a law prohibiting the transfer of nuclear technology to India, and a provision requiring that the head of the Federal Emergency Management Agency (FEMA) have experience in or demonstrated knowledge of emergency management.” (1)

Resources

Notes and References

Guide to Signing Statement

Signing Statements Under George W. Bush Claims of Presidential Authority

Introduction to Signing Statement

In each case the Bush administration claimed that provisions in these laws violated or encroached on his authority as the head of the executive branch or as commander-in-chief of the armed forces. For example, in October 2004 Bush signed a law passed by Congress that established new rules and regulations for military prisons in the wake of the Abu Ghraib scandal. After signing it, however, Bush quietly issued a signing statement saying that he could ignore the law’s provisions if he deemed it necessary in the war on terror. In December 2004 Congress passed a law requiring the Justice Department to inform Congress how often the Federal Bureau of Investigation was using national security wiretaps on U.S. soil. In his signing statement Bush said he could withhold this information from Congress.

Similarly, in August 2005, after Congress strengthened protections for whistle-blowers, Bush’s signing statement declared that he could ignore the protections. Finally, in December 2005, after appearing publicly with Senator John McCain to openly support his amendment to the Detainee Treatment Act prohibiting torture or cruel and inhuman treatment of terrorist suspects, Bush issued a signing statement saying that he could waive the law’s requirements if he determined that it was necessary in the war on terror.” (1)

Resources

Notes and References

Guide to Signing Statement

Signing Statements Under George W. Bush Invoking the Unitary Executive Theory

Introduction to Signing Statement

Bush frequently cited the unitary executive theory in his signing statements. For example, after Congress renewed and extended the Patriot Act in 2006 with a new provision intended to strengthen civil liberties, Bush issued a signing statement saying that he alone would decide whether to implement the provision, citing his “constitutional authority to supervise the unitary executive branch.” Bush invoked this unitary executive theory on at least 82 occasions during his first term in office. Using the same language in almost each instance, he inserted a standard statement that indicated he would interpret legal provisions “in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limits on the judicial power.”

The unitary executive theory rejects the traditional understanding of the U.S. government’s system of checks and balances and separation of powers. Instead of viewing the three branches of government as having overlapping powers that ensure mutual accountability, the unitary executive theory maintains that each branch of government is its own rigidly separate branch. As the head of the executive branch, the president alone determines how the executive branch will function and neither Congress nor the courts can encroach on the president’s ability to manage that branch.

The first test of the unitary executive theory came in 1988 after the Reagan administration had invoked its principles in refusing to obey a subpoena issued by an independent counsel investigating the Environmental Protection Agency (EPA). The administration challenged the constitutionality of the law that established the office of independent counsel and used the unitary executive theory to say that only the president had authority over the EPA. The Supreme Court rejected their reasoning in a 7-to-1 vote in a case known as Morrison v. Olson. See also Independent Counsel Act.

Despite the Supreme Court ruling, the administration of George W. Bush continued to invoke the theory. It did so in part because the law establishing the independent counsel had been allowed to expire and in part because the theory continued to be championed by a group within the administration.

The continued use of signing statements provoked a backlash, however, among conservative Republicans who believed the Bush administration had gone too far. Several attorneys who had first promoted the use of signing statements as members of the Reagan administration-such as Deputy Attorney General Bruce Fein, Office of Legal Counsel head Douglas Kmiec, and the originator of the memo urging the use of signing statements, Steven Calabresi-began warning that the statements were being misused. Fein cautioned, “This is an attempt by the president to have the final word on his own constitutional powers, which eliminates the checks and balances that keep the country a democracy.” (1)

Resources

Notes and References

Guide to Signing Statement

Signing Statement: Findings of American Bar Association

Introduction to Signing Statement

The American Bar Association (ABA) intervened in the debate in July 2006, issuing a 32-page report crafted by a special, bipartisan task force on presidential signing statements and the separation of powers doctrine. The report concluded that signing statements violated the Constitution. The task force found that under the Constitution, a president has two choices when confronted with legislation that has passed both houses of Congress: Veto it or sign it and enforce all its provisions. The ABA report stated: “The president’s constitutional duty is to enforce laws he has signed into being, unless and until they are held unconstitutional by the Supreme Court.”

The ABA argued that signing a bill into law but announcing a refusal to obey certain provisions amounts to the same thing as a line-item veto, which the Supreme Court ruled unconstitutional in a 1998 ruling known as Clinton v. New York. In that ruling the Court found that even if Congress expressly gave the president line-item veto authority, it would still be unconstitutional. Even if the president believed a provision was unconstitutional, the ABA task force concluded, the president would still have to wait for the courts to make that determination. “The Constitution is not what the president says it is,” the task force found.

Congress is still considering legislation introduced by Republican senator Arlen Specter of Pennsylvania that would declare signing statements null and void.” (1)

Resources

Notes and References

Guide to Signing Statement

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