The Constitution is silent on the practice of the president issuing any statement when he signs a bill presented to him by the Congress.  However, presidents have issued statements setting out their views since the time of President James Madison.1  Historically, signing statements have served a largely ceremonial function, or sometimes they are used to put a general gloss on the statute as a kind of directive to the executive branch. Occasionally, a signing statement will be crafted so as to be a self-conscious effort to influence courts in their interpretation of the statute, i.e. “the president’s under-standing of the statute.”  (Justice Samuel A. Alito, Jr., when in the Justice Department’s Office of Legal Counsel wrote a memorandum in 1986 arguing that the president’s views are just as important as those of the key congressional sponsors of the legislation, or floor debates about the bill.)  Courts have generally ignored such statements, and seem to pay less and less attention to legislative history as well.

When a signing statement is used not for any of the foregoing reasons, but rather to express doubts about the legislation the president is signing, or to condemn one or more provisions of the new law as unconstitutional and announce the president’s refusal to enforce the “unconstitutional” provisions, then controversy is sure to follow.  A firestorm erupted when, after Congress, by overwhelming, veto-proof votes on two separate, complementary defense bills, adopted the McCain Amendment banning the cruel, inhuman or degrading treatment of U.S.-held detainees,President George W. Bush hinted that he might not respect the provision as law.  Bush instead asserted: that “The executive branch shall construe [the provision] relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief” as well as taking into account what Bush called “constitutional limitations on the judicial power.”2  Bush further asserted that he would apply his own legal judgment that under Supreme Court precedent there would not be a judicial cause of action for victims.   As a result, a spotlight was put on the practice of signing statements that had hitherto not attracted as much attention.  Many critics asserted that the President was using the signing statement in that case as a de facto line-item veto, which is unconstitutional. 

President Ronald Reagan is credited by many as “beefing up” signing statements in a way not previously done, in an effort to influence the way statutes were interpreted by the courts and executive agencies, as well as to preserve presidential prerogatives.  President George H. W. Bush issued 232 signing statements in his four years in office, and he went further than President Reagan had by arranging to have colloquies inserted into the congressional debates, then relying on those colloquies to interpret statutory provisions despite stronger legislative history supporting a contrary interpretation.  President Bill Clinton issued signing statements 105 times, nearly half in the area of foreign policy.  In one instance he declared a provision in the statute unconstitutional, and instructed his attorney general not to defend it if challenged. His advisors made it clear, however, that if the law were not struck down, the president would have no choice but to enforce it. 

President George W. Bush has in his six years in office pushed the signing statement envelope well beyond that of any of his predecessors.3 In fact, according to the American Bar Association Task Force Report on this subject (issued in August 2006), President Bush has produced more than 800 signing statements containing challenges to the bills he signed.4  All his predecessors combined only did so 600 times.  The Bush II statistic is all the more revealing because throughout most of his presidency – until 2007 – the Congress has been controlled by the Republicans.  Seventy-seven of the over 500 challenges issued in his first term related to his claim that the president has exclusive power over foreign affairs, 37 related to his commander-in-chief powers, and 82 related to the assertion of his theory of the “unitary executive.”  The ABA Task Force Report noted at page 15 that although in the Clinton Administration the president sometimes requested that the Office of Legal Counsel (OLC) in the Justice Department analyze controversial provisions in bills presented to him, in the Bush II Administration “… all bills are routed through Vice President Cheney’s office to be searched for perceived threats to the ‘unitary executive’ – the theory that the president has the sole power to control the execution of powers delegated to him in the constitution and encapsulated in his commander in chief  powers and in his constitutional mandate to see that ‘the laws are faithfully executed.’” 

In addition to the highly controversial signing statement quoted above regarding the McCain amendment forbidding any  cruel, inhuman, or degrading treatment on prisoners in U.S. custody, the president has more recently issued two signing statements that resulted in news stories in the Washington Post and The New York Times.   

The first was the signing statement issued by President Bush in connection with signing the Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006, signed into law on Dec. 18, 2006.  While his oral statement was conciliatory, his written signing statement took exception to nine full sections of the bill approved by Congress, insisting that the executive branch was not bound by the terms of the carefully hammered-out agreement approved by the House of Representatives and Senate, which had been negotiated in the Congress for a year.  (See the Jan. 7, 2007 article on this Web site by George Bunn, entitled “U.S.-India Nuclear Cooperation Agreement: Can President Bush Refuse to Follow the Expressed Will of Congress Concerning Nuclear Exports to India?” -- posted at www.cdi.org/laws/india-us-011707.cfm) 

The second controversial signing statement, also dated Dec. 20, 2006, was attached to a postal reform bill and was criticized as threatening warrantless searches of mail.  The bill had provided that “[n]o letter of such a [particular] class of [mail] of domestic origin shall be opened except under authority of a search warrant authorized by law, or by an officer or employee of the Postal Service for the sole purpose of determining an address at which the letter can be delivered, or pursuant to the authorization of the addressee.”   When Bush focused on that provision in his signing statement, he warned: “The executive branch shall construe [the provision] in a manner consistent, to the maximum extent permissible, with the need to conduct searches in exigent circumstances, such as to protect human life and safety against hazardous materials, and the need for physical searches specifically authorized by law for foreign intelligence collection.”5  Administration spokesmen said that the statement was not intended to expand the powers of the executive branch, but some civil liberties and national security law experts disagreed, pointing out that the statement’s language is unduly vague and appears to go beyond long-recognized limits on the ability of the government to open letters and other U.S. mail without approval from a judge. 

In addition to the ABA Task Force Report, a memorandum prepared by eight former members of the Office of Legal Counsel, an edited version of a post to the Georgetown Law Faculty Blog, supports some but not all of the ABA report recommendations, and contains several interesting comments.6  For example, the “OLC Alumni” note that while some of the increase in signing statements that challenge the constitutionality of  statutory provisions can be attributed to an unjustifiable arrogation of power that President Bush has asserted and continues to assert, some of the blame can also be laid at Congress’ door. In recent years Congress has increasingly used “…omnibus legislation that includes, among hundreds of constitutionally unobjectionable provisions, a handful of provisions that might be unconstitutional, including some that are clearly invalid under governing Supreme Court precedent.” 

The OLC Alumni agree with the ABA report that the president cannot simply choose not to enforce whichever statutes he does not like. As they put it: 

…A President may not exercise a dispensing power – in effect a type of “line-item veto” – to ignore statutes that he thinks are unwise, or wrong, or politically inexpedient.  See United States ex rel. Stokes v. Kendall. The Task Force thus is absolutely right (p. 23) when it quotes former OLC Assistant Attorney General Rehnquist to the effect that presidential “impoundment” of appropriated funds is unconstitutional, and that the power to execute laws does not give the President the authority to decline to execute them. The President has an obligation under Article II to faithfully execute the laws.

At page 5 of the OLC Alumni memo the authors state:

The Task Force suggests that the Presentment Clause prohibits the President from using such signing statements.  But that concern is off the mark. When the President signs a bill presented to him it becomes positive law – all of it, even the constitutionally objectionable provisions – and thus the Presentment Clause is satisfied. The fact that the President asserts a right not to enforce it does not mean that it is wiped off the books. There is, in other words, no “line-item veto.” An example should prove the point: If President Bush had the power to “line-item veto” the McCain Amendment, it would never have become law, and would never have bound federal interrogation practices.  But because he did not veto it, it is an actual statute.  It binds the conduct of executive branch actors in the absence of a presidential directive not to enforce it, and it can and will be enforced by future Presidents who disagree with President Bush’s view of the Commander-in-Chief Clause (or if the Supreme Court were to declare that it is constitutional).” 

The OLC Alumni memorandum than discusses what its authors consider as the four most important problems with the Bush Administration’s practices. They are: 

First, in this Administration nonenforcement appears to be a strategy of first resort, not last. The guidelines that OLC set forth during the Clinton Administration place a focus on the Constitution’s structure. Those guidelines make clear that the President is to act in ways that respect the important roles of Congress and the courts in the process of constitutional interpretation and the resolution of constitutional controversy. The frequent and cavalier declarations of constitutional objections by the Bush Administration demonstrate that it pays little or no heed to these fundamental constitutional values.

 

Second, in many cases this Administration’s signing statements do not plausibly reflect legislative intent. More often than not, the Administration has justified such constructions as necessary in order to avoid a serious constitutional question. But even if the avoidance canon applies to the President’s interpretations just as strongly as it does to the judiciary’s interpretations, it is triggered only where the statute in question is genuinely ambiguous. See, e.g., United States v. Oakland Cannabis Buyers’ Coop. This Administration has too frequently misused the avoidance canon to distort the meaning of statutory provisions that were not ambiguous – both with respect to provisions President Bush signed into law and provisions long on the books…. If the President believes that a statute, fairly construed, would be unconstitutional, he should simply say so, and consider whether to enforce it or to take some other action to address his constitutional concern, rather than couching his objection as an implausible form of statutory “construction.”

 

Third, the whole point of such signing statements – the reason that making them is actually a valuable practice …. is that they make transparent the President’s intent to decline to enforce statutes in the manner contemplated by Congress. But President Bush’s statements for the most part do not serve this function. Many of the objections are written in such general and opaque terms, and with resort to vague assertions about an intent to “construe” the provisions in conformity with the Commander-in-Chief Clause, the “unitary executive,” etc. that it is impossible to know just what they mean in terms of how the Administration is implementing the statutes in question. …  Congress and the public are offered no clear understanding of the legal theory of unconstitutionality, or of precisely which statutory provisions will be enforced, under what circumstances, and why. The statements are, instead, mere placeholders, with respect to a vast number of statutory provisions, signaling that the Administration reserves the right not to enforce numerous unspecified provisions.

 

Moreover, the President is not telling Congress when he does refuse to enforce (or when he construes the statute in a manner that the legislature could not possibly have contemplated.)  A President may seek to enforce his own conception of the Constitution, even if it is a sharp break with the past. But when he does, he is constitutionally obliged to do so in broad daylight, with adequate opportunity for the other branches and the public to understand the legal theory and the practice and to respond accordingly. Checks and balances can’t possibly work if the revolution is occurring in secret, or if the Administration publicly insists that all is business as usual, that all statutes and treaties are being implemented as they always have been, while simultaneously  “implementing” such statutes in a manner that comes as a great surprise to Congress and the public. …

 

The final, and most important, problem with the practice in this Administration, as we emphasized above, is not the signing statements themselves, nor the simple fact that the President might be engaged in nonenforcement, but instead the substance of many of the Administration’s constitutional objections: e.g., the extremely broad theories of the Commander-in-Chief Clause and the “unitary executive” that underlie many of the

signing statements and other distorted statutory constructions. If those constitutional objections were well-taken, and were publicly disclosed and debated, the signing statements themselves would present far fewer problems. But many of us believe that the Administration is wrong on the merits; and it is that substantive concern, along with the concerns about the lack of transparency and about the use of nonenforcement as a tactic of first resort, that should be at the heart of this debate.

The OLC Alumni conclude that in an effort to be nonpartisan, the ABA Task Force Report states “our recommendations are not intended to be, and should not be viewed as, an attack on the current President.”  However, the OLC Alumni memo notes that “… criticism of a particular President’s abuse of power, far from being partisan, is an obligation of the legal profession.” The author shares that view.

Philip A. Fleming, a U.S. Air Force veteran, is the president of the Lawyers Alliance for World Security (LAWS).  A former partner in the law firm of Crowell & Moring and a Life Fellow of the American Bar Foundation, Fleming also has served as Special Counsel to the Administrative Conference of the United States and as Chair of the ABA Section of Environmental, Energy and Natural Resources Law.  In addition to leading LAWS, Fleming currently provides mediation and arbitration services through Washington, D.C.,-based Fleming ADR Services.  Fleming is a graduate of Michigan Law School and Cornell University.