Academic journal article Presidential Studies Quarterly

The Law: The Obama Administration's Evolving Approach to the Signing Statement

Academic journal article Presidential Studies Quarterly

The Law: The Obama Administration's Evolving Approach to the Signing Statement

Article excerpt

The presidential signing statement became a household term during the latter half of George W. Bush's presidency. In fact, for many, President Bush's use of the interpretive device embodies the robust view of executive power that has become the legacy of that administration. Like many presidents before, Bush repeatedly used the signing statement to challenge the constitutionality of newly passed statutory provisions, even as he signed those provisions into law. Despite public criticism of Bush's use of the signing statement, President Barack Obama continued the practice during his first six months in office. Although defenders described his as a more restrained and customary view of the role of the signing statement, the Obama administration's policy prompted condemnation from many in Congress and portions of the president's political base. Perhaps in response to that criticism, after issuing five constitutional signing statements in his first six months, Obama did not issue a single constitutionally based signing statement for nearly 16 months.

It is surely too early to conclude that the Obama administration has a desire to retreat from the practice of announcing the president's intent to disregard constitutionally suspect provisions of enacted laws through the use of the presidential signing statement. For after the extended hiatus, President Obama swiftly issued two constitutional signing statements within eight days in mid-October 2010. Yet there is evidence to suggest that the administration is considering additional methods for handling statutory provisions that the president finds constitutionally objectionable. Rather than face the inevitable backlash associated with the now heavily scrutinized signing statement, administration officials have reportedly stated that they will not utilize the signing statement where the administration, or perhaps even a prior administration, has "previously voiced objections elsewhere" (Savage 2010). Accordingly, the lack of a signing statement does not necessarily imply that the administration does not harbor serious constitutional objections to portions of a newly signed statute.

If the president is going to reduce his administration's reliance on the signing statement, then it is likely that other tactics will see increased use as alternative means of opposing statutory provisions the president views as unconstitutional. (1) Judging from the administration's first two years in the White House, a blend of interpretive mechanisms such as Statements of Administration Policy (SAPs) and legal opinions by the Office of Legal Counsel (OLC) within the Justice Department are the most likely candidates. Through these devices, a president could retain many of the benefits of a signing statement without exposure to the instrument's considerable political risks. This article summarizes the Obama administration's evolving approach to presidential signing statements.

Signing Statements Overview

Controversy over the presidential signing statement erupted in 2006 after President Bush signed a defense appropriations bill containing restrictions on the treatment of detainees while simultaneously attaching a sweeping signing statement. The signing statement asserted that the bill's provision prohibiting the cruel and unusual treatment of prisoners was in conflict with "the constitutional authority of the President to supervise the unitary executive branch" (Bush 2005). The statement signaled that the provision would not bind the administration. Numerous news stories, articles, books, blog posts, studies, and even a report by the American Bar Association have since focused on the president's use of signing statements to challenge the constitutionality of a statutory provision or announce the president's intent to refuse to enforce or disregard the suspect provision.

The presidential signing statement is a written statement issued by the president upon signing a bill into law. …

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