What's So Sinister about Presidential Signing Statements?

Article excerpt

In 1830, Andrew Jackson signed into law an appropriations bill that, among other things, provided funds to construct a road from Detroit to Chicago. After signing the bill into law, Jackson wrote a special message to Congress indicating that he had signed the bill with the understanding that the authorized road was not to extend beyond the Michigan Territory (Jackson 1830). Jackson's actions outraged members of Congress and prompted the House of Representatives to issue a report rebuking Jackson's actions and declaring that his message in effect constituted a line item veto (Halstead 2007).

This episode marked one of the early instances in which a president formally issued a statement outlining an interpretation of a newly enacted law. Over time, this practice has been institutionalized in the form of presidential signing statements (Conley 2011), written comments delivered when a president signs a bill into law. These statements span the spectrum from innocuous rhetorical messages used to praise allies to pointed messages that offer the president's interpretation of certain statutory provisions. While signing statements have been used since the early 1800s, they did not receive consistent attention in political science until the George W. Bush administration. Since then both academic (Cooper 2005) and media (Savage 2006, 2007) sources have adopted a position consistent with the House of Representatives' 1830 report and likened signing statements to a line-item veto and a general abuse of presidential power. The American Bar Association (2006) went a step further and argued that signing statements pose a "serious threat to the rule of law" (20).

Signing statements exist in an ambiguous and murky world alongside the many modern presidential tools that are neither expressly mentioned in nor prohibited under the Constitution.1 This ambiguity has understandably led to the question of what precisely signing statements are and what presidents intend to accomplish through their issuance. The initial scholarly accounts have largely portrayed signing statements as the newest unilateral policy tool employed by recent presidents (Cooper 2005; Kelley and Marshall 2008, 2009, 2010; Pfiffner 2008). Within this framework, signing statements give presidents a last mover advantage (Kelley and Marshall 2008, 2009), which can circumvent congressional law-making authority by nullifying select statutory provisions. This power has been compared to a royal prerogative (May 1998).

But are signing statements so sinister? While some statements may be directed toward changing the outcome of a law, there has been little to no systematic evidence to demonstrate that signing statements alter the implementation of public laws (Halstead 2007, 2008a; Kepplinger 2007a, 2007b, 2008). (2) Furthermore, an examination of the rhetorical content in signing statements indicates that many of these statements, even those raising constitutional questions, cannot be construed as intending any policy change. In these cases, signing statements appear to be institutionally oriented and do not appear to be used to make specific policy gains. Rather these statements are directed at reiterating the boundaries between Congress and the president. Additionally, statements of administration policy (SAP), which are issued during the legislative process and at times outline a president's constitutional concerns, have been found to precede many constitutional signing statements (Ainsworth et al. 2011; Rice 2010).

We suggest that the popular framework of unilateral action is an inappropriate perspective for understanding presidential signing statements. Instead, we posit that signing statements function as an opportunity for presidents to speak with Congress about specific provisions of a bill or larger interbranch issues. In doing so, the president is able to note concerns about policy, ambiguity, and the constitutionality of provisions, as well as offer praise for specific legislative accomplishments or congressional cooperation. …