Signing statement
A signing statement is a written pronouncement issued by the President of the United States upon the signing of a bill into law. They are usually printed in the Federal Registers Compilation of Presidential Documents and the United States Code Congressional and Administrative News. The statements offer the president's view of the law or laws created by the bill.
There are two kinds of signing statements. One type, which is not controversial, consists only of political rhetoric or commentary, such as praising what the bill does and thanking Congress for enacting it. The other type, which has attracted significant controversy, is more technical or legalistic, and consists of the president's interpretations of the meaning of provisions of the bill—including claims that one or more sections are unconstitutional. The latter type usually amount to a claim that newly created legal restrictions on the executive branch or president are not binding and need not be enforced or obeyed as written.
During the administration of President George W. Bush, there was a controversy over the President's use of signing statements to challenge numerous sections of bills as unconstitutional constraints on executive power; Bush used the device both to raise challenges to more provisions than all previous presidents combined had done, and to advance an unusually broad conception of presidential power. The Bush administration did not invent the practice, however: previous presidents had also used signing statements in that manner since the Reagan administration, and the succeeding Obama administration also continued the practice. In August 2006, the American Bar Association's house of delegates adopted a task force's conclusion that presidents should stop using signing statements to modify the meaning of duly enacted laws because the practice serves to "undermine the rule of law and our constitutional system of separation of powers".
Types
A study released by then-Assistant Attorney General Walter Dellinger grouped signing statements into three categories:- Constitutional: asserts that the law is constitutionally defective in order to guide executive agencies in limiting its implementation;
- Political: defines vague terms in the law to guide executive agencies in its implementation as written;
- Rhetorical: uses the signing of the bill to mobilize political constituencies.
Critics, including the American Bar Association, have contended that this practice amounts to a line-item veto because it allows a president to accept the parts of a bill he likes while rejecting other parts that lawmakers bundled together with those parts, except that it gives Congress no ability to vote to override a veto. Supporters of signing statements have contended that the practice is necessary as a matter of political reality because Congress frequently passes large bills that cover many topics and may have small flaws, and that it would cripple government for a president to veto such legislation over the small flaws.
Applying a metric to signing statements
There is a controversy about how to count an executive's use of signing statements.One complexity centers on what counts as a relevant signing statement. A counting of the total number of bill signing statements by any particular president that included purely rhetorical and political messages about legislation would result in a misleading number for the purpose of a discussion about signing statements that make constitutional challenges to sections of the bills being enacted into law.
Another complexity centers on whether what matters is the number of bills to which a signing statement has been appended, or the number of challenges to newly created sections of statutory code. For example, Congress could pass three short bills about discrete topics, each of a president signed but challenged with three different signing statements. Or Congress could bundle the same legislative language into a single bill with three sections, about which a president could issue one signing statement that made three discrete challenges. As a matter of legal substance, the result is the same—three challenges to new sections of law—but the latter could be measured as one or three presidential acts.
A Congressional Research Service report issued on September 17, 2007, compared the total number of presidents' signing statements that made any constitutional objection to at least one part of a bill—regardless of how many bill sections were flagged—to the total number of issued by presidents, including those what were purely rhetorical or political messages. By that metric, it made the following findings:
In March 2009, The New York Times cited a different metric. It ignored purely rhetorical or political messaging statements, while counting the number of challenges to sections within bills to which presidents made constitutional objections regardless of how many bills and accompanying statements were involved. By that metric, it recounted the following findings:
Legal significance
No provision of the U.S. Constitution, federal statute, or common-law principle explicitly permits or prohibits signing statements. However, there is also no part of the Constitution that grants legal value to signing statements. Article I, Section 7 empowers the president to veto a law in its entirety, to sign it, or to do nothing. Article II, Section 3 requires that the executive "take care that the laws be faithfully executed". The Constitution does not authorize the President to cherry-pick which parts of validly enacted Congressional Laws he is going to obey and execute, and which he is not. The complexity is that if a section of U.S. code is not constitutional, then by definition it was not validly enacted. One part of the debate, then, is whether it is proper for a particular president to sign into law a statutory section that he considered at the time to be invalid, while declaring that he will not consider it binding, rather than vetoing the entire bill and sending it back to Congress.Signing statements do not appear to have legal force outside the executive branch by themselves, although they are all published by the Federal Register. As a practical matter, those that announce a president's interpretations of—or constitutional objections to—newly enacted statutes amount, implicitly or explicitly, of instructions to subordinate government officials to interpret the new laws the same way. There is a controversy about whether they should be considered as part of legislative history.
Presidential signing statements maintain particular potency with federal executive agencies, since these agencies are often responsible for the administration and enforcement of federal laws. A 2007 article in the Administrative Law Review noted how some federal agencies' usage of signing statements may not withstand legal challenges under common law standards of judicial deference to agency action.
Supreme Court rulings
The Supreme Court has not squarely addressed the limits of signing statements. Marbury v. Madison and its progeny are generally considered to have established judicial review as a power of the Court, rather than of the Executive. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, established court deference to executive interpretations of a law "" and if the interpretation is reasonable. This applies only to executive agencies; the President himself is not entitled to Chevron deference. To the extent that a signing statement would nullify part or all of a law, the Court may have addressed the matter in Clinton v. City of New York, which invalidated the line-item veto because it violated bicameralism and presentment.Presidential usage
The first president to issue a signing statement was James Monroe. Until the 1980s, with some exceptions, signing statements were generally triumphal, rhetorical, or political proclamations and went mostly unannounced. Until Ronald Reagan became president, only 75 statements had been issued; Reagan and his successors George H. W. Bush and Bill Clinton produced 247 signing statements between the three of them. By the end of 2004, George W. Bush had issued 108 signing statements containing 505 constitutional challenges. As of January 30, 2008, he had signed 157 signing statements challenging over 1,100 provisions of federal law.The upswing in the use of signing statements during the Reagan administration coincides with the writing by Samuel Alito – then a staff attorney in the Justice Department's Office of Legal Counsel – of a 1986 memorandum making the case for "interpretive signing statements" as a tool to "increase the power of the Executive to shape the law". Alito proposed adding signing statements to a "reasonable number of bills" as a pilot project, but warned that "Congress is likely to resent the fact that the President will get in the last word on questions of interpretation."
A November 3, 1993, memo from White House Counsel Bernard Nussbaum explained the use of signing statements to object to potentially unconstitutional legislation:
This same Department of Justice memorandum observed that use of presidential signing statements to create legislative history for the use of the courts was uncommon before the Reagan and Bush presidencies. In 1986, Attorney General Edwin Meese entered into an arrangement with the West Publishing Company to have Presidential signing statements published for the first time in the U.S. Code Congressional and Administrative News, the standard collection of legislative history