Academic journal article The William and Mary Bill of Rights Journal

Presidential Signing Statements and the Rule of Law as an "Unstructured Institution"*

Academic journal article The William and Mary Bill of Rights Journal

Presidential Signing Statements and the Rule of Law as an "Unstructured Institution"*

Article excerpt

Both inside and outside the academy, a debate is raging in the United States about the relative merits of what might be called presidentialist and pluralist interpretations of the separation of powers. Presidentialism imagines that the Constitution vests in the President a fixed and expansive category of executive authority that is largely immune to legislative control or judicial review.1 Pluralism sees checks and balances as the principle animating the separation of powers.2 It disputes the fixed nature of executive power.3 It sees questions of separation of powers interpretation as calling regularly for the careful calibration of each branch's authorities, all in the name of government accountability to the law and to the citizenry.4

Aggressive presidentialism was a pillar of constitutional understanding in the administrations of both Ronald Reagan and George H.W. Bush. The Clinton administration sometimes tended towards presidentialism in its handling of regulatory oversight, although its professed constitutional doctrine was more often pluralist in tone. Today, we are six years into the most radically presidentialist administration in history, the presidency of George W. Bush. It is an administration that has frequently announced the substance of its views on executive power through an unusual medium - statements that the President releases in connection with his signing proposed legislation into law.

What I want to argue here, however, is an even subtler connection between the radical presidentialism of the current Bush administration and its practice with regard to presidential signing statements. In particular, I want to argue that the Bush administration's use of signing statements embodies a disturbingly thin and formalistic view of the rule of law that goes hand-in-hand with its vision of the separation of powers.

The Bush administration's signing statement practice has been notable for two distinct reasons. The first is the extremity ofthe constitutional vision that these statements typically assert, especially with regard to the so-called "unitary executive."5 The second is their sheer volume, unmatched in the entire history ofthe executive.6 Given the various other ways in which the administration has professed allegiance to its radical view ofthe separation of powers, the substantive content ofthe Bush signing statements is not surprising. But the obvious question is, why so many?

To appreciate the puzzle, we have to recall that these views, even if earlier GOP Presidents pushed them less aggressively, were certainly held also by leading legal thinkers under both Presidents Reagan and Bush 4L7 So why does President Bush 43 - as opposed to Reagan or Bush 41 - feel compelled so often to resort to signing statements in order to express his extreme constitutional theories? Bush's recent GOP predecessors, facing Congresses controlled by Democrats, certainly had less political room to work their will than he does. One might think that they would have been the more strident in asserting their prerogatives of unilateral action. Is it not odd that President Bush would be so insistent on his prerogatives in the face of Congresses entirely in GOP control from 2003 to 2006,8 and partially in GOP control from 200 1 to 2002?9

To grasp this phenomenon, I think we have to understand that presidentialism and pluralism can each operate not just as a constitutional philosophy, but also as an ethos, that is, as a fundamental element ofthe spirit with which the government conducts business. The Bush administration has operated until recently against the backdrop of Republican-controlled Congresses and a Supreme Court highly deferential to executive power. This political context has enabled the Bush administration not only to elaborate presidentialism as a theoretical stance but also to operate very largely within the premises of presidentialism, as if presidentialism really were what the Constitution envisions. …

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