II. the President's Role in the Legislative Process

Harvard Law Review, June 2012 | Go to article overview

II. the President's Role in the Legislative Process


In the U.S. constitutional system, the coordinate branches of government are charged with maintaining institutional equilibrium, each checking the others to prevent undue concentration of power. One way in which the President helps to maintain that interbranch balance is through his affirmative role in the legislative process. While the constitutional text presupposes an active role for the President in originating and shaping legislation, developments in the realities of the legislative process over time have precipitated changes in the ways the President can influence that process.

Signing statements--official executive branch pronouncements made when the President signs a bill into law to assert his interpretation, raise any constitutional objections, and state his intentions regarding enforcement--are a manifestation of this phenomenon.1 Al-though signing statements originated in the Monroe Administration, (2) Presi-dents rarely used them as a policy tool before the mid-twentieth century. (3) Later, in the 1980s, signing statements became a staple of executive branch practice in the Reagan Administration and, since then, "have increasingly been utilized by Presidents to raise constitutional or interpretive objections to congressional enactments." (4) This phenomenon went largely unnoticed until the George W. Bush Administration. President Bush, while not deviating dramatically from his immediate predecessors in terms of the number of signing statements issued, challenged far more provisions of law with these statements, especially on constitutional grounds. By some accounts, "the Bush Administration ... used signing statements to claim the authority or state the intention to disregard or decline to enforce all or part of a law [the President] signed more than all of his predecessors combined." (5) Many perceived this shift as an unconstitutional presidential power grab, calling the entire practice of signing statements into question. The popular press harshly criticized the Bush Administration. (6) The fervor prompted the formation of a bipartisan task force by the American Bar Association (ABA) to study the use of signing statements, eventually resulting in a re-port highly critical of signing statements in general and President Bush's use of signing statements in particular. (7) The popular criticism also led to a considerable amount of congressional action, including several committee hearings and legislative proposals pushing back against presidential use of signing statements.

While President Bush's signing statements drew considerable popular criticism, there is a general consensus among scholars and former Justice Department officials that the practice of using signing statements--both to assert that some aspect of a law is unconstitutional and to state in advance the President's intent to disregard the invalid provision or provisions--is not itself constitutionally problematic. (8) To the extent critics found cause for concern in the signing statements, it was in the statements' con-tent, most notably the scope of executive authority they asserted, not in their existence per se. (9)

Nonetheless, the public outcry against President Bush's perceived abuse of signing statements caused a change in the White House's public stance toward signing statements, leading the Obama Administration to adopt voluntary restraints on this previously important tool of executive power. Although he reserved the right to issue signing statements when necessary to protect executive branch prerogatives against legislative encroachment, President Obama voluntarily disclaimed the use of signing statements for other purposes--namely, disregarding or undermining congressional enactments because of policy disagreements or dubious constitutional objections.

This Part analyzes and suggests an explanation for why the Obama Administration has pulled away from the use of the signing statement in many significant (if not all) respects, notwithstanding the inability of Congress to force such a change through traditional legislative mechanisms. …

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