In June 2007, the Government Accountability Office (GAO) released a report that described an apparent connection between the constitutional challenges in the Bush presidential signing statements and the implementation among executive branch agencies (Kepplinger 2007). This seemed to contradict an earlier study that could not find any connection between the two (Friel 2006). In that study, reporter Brian Friel looked at a couple of agencies and found that agency heads continued to cooperate with the wishes of Congress despite the challenges issued in President George W. Bush's signing statements. Friel concluded that "most of the signing statements issued by Bush ... seem largely symbolic and do not necessarily change how agencies implement legislation" despite the legal challenges expressed in the signing statement (65).
The GAO report found just the opposite--that in certain areas, agencies are influenced by administration challenges to provisions deemed defective in the bills signed into law. The GAO report looked at two questions: first, have executive branch agencies implemented the constitutional challenges issued in President Bush's signing statements? Second, have federal and/or state courts taken into consideration the signing statement when rendering opinions over conflicts in federal law? In answer to the first question, the GAO report identified areas where some of the agencies were not faithfully abiding by the letter of the law. In answer to the second question, there is no evidence that the interpretations and challenges found in the signing statement have any effect on the way judges decide conflicts in the law.
What can be said about these two conflicting reports? It can be said that there are certain policy areas that are critical to the president's agenda, and in those areas he and his staff will see to it that the substance of the signing statement is implemented by bureaucratic agents. In other areas deemed important to Congress, or at least to some members of Congress, the president and his staff will not spend the energy fighting a losing battle. The larger questions remain: which agencies are affected by the signing statement and why? How often are the president's challenges heeded? Much attention was paid to the large volume of challenges issued by President Bush since he took office, but is not known is what fraction of that number is meaningful.
The purpose of this article is to explain what the signing statement is and how it evolved, paying particular attention to the Reagan administration and its decision in 1986 to add the signing statement to the legislative history of bills signed into law. This article will also look at two ways that Congress can check the use of the signing statement--vigorous oversight and withholding appropriations--and not by way of passing legislation that will likely not have much impact on presidential behavior.
The Year of the Signing Statement
Little attention was paid to the signing statement prior to 2006. In the late 1980s, there was some interest by Congress and the press over the way in which the Reagan administration had used it, but thereafter it took a back seat to higher-profile devices such as the executive order.
When we talk of the signing statement, we are referring to the presidential commentary on a bill after it is signed into law. Sometimes the signing statement coincides with a formal signing ceremony, but mostly all are written and relegated to the pages of such publications as the Weekly Compilation of Presidential Documents or the Public Papers of the Presidents of the United States. Since 1986, they have also been published as part of the Legislative History section in the United States Code Congressional and Administrative News.
The signing statement is a useful device largely because of its flexibility. It can be used as a rhetorical tool to signal gratitude to supporters or to admonish opponents. It can be used to address constitutional defects in a bill and instruct executive branch agents on how to proceed with implementation. And it can inform executive branch agents on the meaning of vague or undefined provisions of the law (Cooper 2005; Kelley, forthcoming a).
In 2006, the signing statement became a public spectacle: first was as a result of President Bush's signing statement to a defense authorization bill that reneged on an agreement the president made with Senator John McCain (R-AZ) over the use of torture as an interrogation technique. Second were Reagan-era documents (1) that outlined a strategy for using the signing statement in a strategic way that were authored in part by Judge Samuel Alito, who was picked to replace Justice Sandra Day O'Conner on the Supreme Court. And third, occurring a couple of months later, was a story by Boston Globe reporter Charlie Savage that found that President Bush had issued "more than 750" constitutional challenges to provisions of law in his signing statements, a number that exceeded the challenges of all presidents combined (Savage 2006).
As a result of the publicity, there have been two congressional hearings on the administration's use of the signing statement as well as several bills to negate their effect. There were a number of reports by outside organizations such as the American Bar Association criticizing the use of the signing statement as contradictory to the Constitution or putting the president above the law (American Bar Association 2006). And there were numerous newspaper …