Signing statement

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

A signing statement is a written proclamation issued by the government executive power that accompanies the signing of a law passed by the government's legislature.

Historically their main use is for rhetorical or political proclamations. Presidents of the United States, however, have also used such statements to set forth how they intend the rest of the executive branch of the federal government to interpret and enforce the new law.

There is an ongoing controversy concerning the extensive use of signing statements in this way by the current U.S. President, George W. Bush. In July 2006, a task force of the American Bar Association described such use of signing statements as "contrary to the rule of law and our constitutional system of separation of powers".

Types

Generally any executive statement made with the signing of a law can be said to be a signing statement. Christopher Kelley, a political scientist who has analyzed signing statements, groups them into three categories:

• Rhetorical, "this is a great law"
• Political, "this law meets the need of working families"
• Constitutional, "I'm signing this law, but won't enforce section 2"

In common usage, the phrase "signing statement" normally refers to 'Constitutional' statements that direct how the law is to be applied.

A note on applying a metric to signing statements

It is common for different metrics to be used when counting an executive's total use of signing statements. A flat count of total signing statements would include the rhetorical and political statements as well as the constitutional. This may give a misleading number when the intent is to count the number of constitutional challenges issued.

Another common metric is to count the number of statutes that are disputed by signing statements. This addresses a count of the constitutional issues, but may be inherently inaccurate due to ambiguity in the signing statements themselves, as well as the method of determining which statutes are challenged.

Legal significance in the United States

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

Signing statements do not appear to have legal force by themselves. As a practical matter, they may give notice of the way that the Executive intends to implement a law, which may make them more significant than the text of the law itself.

Supreme Court rulings

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

In Hamdan v. Rumsfeld (2006), the Supreme Court gave no weight to a signing statement in interpreting the Detainee Treatment Act of 2005, according to that case's dissent.

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 made 247 signing statements among them. As of 2006, George W. Bush has issued over 130 signing statements containing more than 750 constitutional challenges.

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

A November 3, 1993 memo from the Clinton Justice Department explained the use of signing statements to object to potentially unconstitutional legislation:

If the President may properly decline to enforce a law, at least when it unconstitutionally encroaches on his powers, then it arguably follows that he may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing. If so, then a signing statement that challenges what the President determines to be an unconstitutional encroachment on his power, or that announces the President's unwillingness to enforce (or willingness to litigate) such a provision, can be a valid and reasonable exercise of Presidential authority.[1]

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

Signing statements may be viewed as a type of executive order or simply a written expression of the President's interpretation of legislation which may be reviewed in future court cases just as Congressional intentions are determined by examining the legislative history and record of debate in Congress. Other types of executive order are, national security directives, homeland security presidential directives, and presidential decision directives, which may deal with national security and defense matters.

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

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

Previous administrations had made use of signing statements to dispute the validity of a new law or its individual components. George H. W. Bush challenged 232 statutes through signing statements during four years in office and Clinton challenged 140 over eight years. George W. Bush's 130 signing statements contain at least 750 challenges. In the words of a New York Times commentary:

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

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

The Executive Branch shall construe [the torture ban] in a manner consistent with the constitutional authority of the President to supervise the unitary Executive Branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power.

This statement specifically refers to a unitary executive theory, under which the President asserts broad authority to use his independent judgment to interpret and apply the law.

On July 24, 2006, the American Bar Association's Task Force on Presidential Signing Statements and the Separation of Powers Doctrine issued a report condemning some uses of signing statements. The task force report and recommendations will be presented to the delegates, for approval, at their August 2006 meeting. The report stated in part:

Among those unanimous recommendations, the Task Force voted to:

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

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

• urge the President to confine any signing statements to his views regarding the meaning, purpose, and significance of bills, and to use his veto power if he believes that all or part of a bill is unconstitutional;

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

Congressional efforts to restrict signing statements

Sen. Arlen Specter (R-Pa.) introduced the Presidential Signing Statements Act of 2006 on July 26, 2006. [2]The bill would:

1. Instruct all state and federal courts to ignore presidential signing statements. ("No State or Federal court shall rely on or defer to a presidential signing statement as a source of authority.")
2. Instruct the Supreme Court to allow the U.S. Senate or U.S. House of Representatives to file suit in order to determine the constitutionality of signing statements. [3]

The bill was referred to the Senate Judiciary Committee, which Specter chairs, on the day it was introduced.[4]

See also

• List of United States federal executive orders
• Separation of powers

External links

• Presidential Signing Statements Browsable database of signing statements from 1929 through the present. Added on June 30, 2006.
• Presidential Signing Statements 2001-2006 Browsable database of the signing statements of President George W. Bush. Created on May 31, 2006.
• DoD Bill Signing Statement Example of a signing statement issued by President Bill Clinton on November 4, 1999.
• By Order of the President: The Use and Abuse of Executive Direct Action By Phillip J. Cooper. University Press of Kansas: 2002.
• The Unitary Executive and the Presidential Signing Statement Doctoral dissertation by Christopher S. Kelley, Ph.D., 2003.
• Alito Once Made Case For Presidential Power By Christopher Lee. Washington Post. January 2, 2006. (Discussing encouragement of the use of signing statements by Samuel Alito when he worked in the administration of former President Ronald Reagan)
• Bush Could Bypass New Torture Ban By Charlie Savage. The Boston Globe. January 4, 2006. (Disclosing Bush's claim, in a signing statement, that he has the authority to make exceptions to a law forbidding harsh interrogation techniques)
• Bush using a little-noticed strategy to alter the balance of power By Ron Hutcheson and James Kuhnhenn. Knight Ridder Newspapers. January 6, 2006.
• The Unitary Executive: Is The Doctrine Behind the Bush Presidency Consistent with a Democratic State? By Jennifer Van Bergen. Findlaw. January 9, 2006.
• Presidential Signing Statements, and Alito's Role in Them, Are Questioned By Adam Liptak. The New York Times. January 14, 2006.
• For President, Final Say on a Bill Sometimes Comes After the Signing By Elisabeth Bumiller. The New York Times. January 16, 2006.
• Bush Shuns Patriot Act Requirement By Charlie Savage. The Boston Globe. March 24, 2006. (Disclosing Bush's claim, in a signing statement, that he has the authority to defy provisions in the new version of the USA Patriot Act requiring him to tell Congress how he is using its expanded police powers.)
• The Problem With Presidential Signing Statements by Richard A. Epstein, Cato Institute, July 18, 2006.
• Bush Challenges Hundreds of Laws By Charlie Savage. The Boston Globe. April 30, 2006. (A detailed look at five years of specific signing statement claims.)
• Examples of Bush Signing Statements By Charlie Savage. The Boston Globe. April 30, 2006.
• The Legal Significance of Presidential Signing Statements By Walter Dellinger, Assistant Attorney General on the Department of Justice website. "Many Presidents have used signing statements to make substantive legal, constitutional, or administrative pronouncements on the bill being signed. Although the recent practice of issuing signing statements to create 'legislative history' remains controversial, the other uses of Presidential signing statements generally serve legitimate and defensible purposes."