Academic journal article The William and Mary Bill of Rights Journal

A Matter of Direction: The Reagan Administration, the Signing Statement, and the 1986 Westlaw Decision

Academic journal article The William and Mary Bill of Rights Journal

A Matter of Direction: The Reagan Administration, the Signing Statement, and the 1986 Westlaw Decision

Article excerpt

The presidential signing statement has received a great deal of attention since an April 30, 2006, Boston Globe story told of President George W. Bush using it to challenge the constitutionahty of over 750 provisions of law.1 As a result, the Senate2 and House3 Judiciary Committees held a hearing on the signing statement, four separate bills were introduced in an attempt to blunt its effect,4 and various outside interest groups released statements condemning its use.5

Despite all of the heated attention directed towards the current administration and its use of the signing statement, it was not the first to use the signing statement. In fact, the signing statement has roots nearly as deep as the Republic.

The signing statement was first utilized in the Monroe administration to protect the President's Commander-in-Chief prerogative.6 The device did not come into regular use, however, until the period following Watergate, when it was used routinely by the Ford and Carter administrations to nullify legislative vetoes7 and drew its first reaction from Congress. In 1978, Congressman Elliot Levitas (D-GA) added language to an appropriations bill that required the Attorney General to inform Congress whenever he refused to defend a challenge to a legislative veto.8

But it was the Reagan administration that developed the signing statement into a strategic weapon, part of a set of "power tools" the President could rely upon when needed.9 Thus, the purpose of this Article is to provide a complete and detailed understanding of the decision by the Reagan administration to add the signing statement to the legislative history of bills signed into law. While many believe that the Reagan administration's purpose for the signing statement was to affect judicial decisionmaking,10 I will demonstrate that the decision was designed to influence the administrative agencies as much, if not more, than to influence judges.


Before telling the story of the Westlaw decision, it is important to understand precisely what a signing statement is in order to understand its importance to the President. The signing statement is a document the President appends to a bill he has signed into law. The signing statement may be both written and spoken, as when the President calls together members of Congress or other important individuals who have helped pass the legislation he has signed. Mostly, signing statements are informal and only written, akin to a press release. The actual document that is the signing statement does not hold much interest to scholars studying the presidency. It is what is contained in the document - the "devil in the details" - that is important.

There are four different uses for the presidential signing statement - either non-constitutional or constitutional. The first use, and the only one not justified by interpreting the Constitution, is the rhetorical signing statement.11 The rhetorical signing statement, by far the most common use of a signing statement, is used to garner the attention ofthe press, important political constituencies, Congress, and/or the public. For instance, the President will thank particular members of Congress for help on abili, or he will use it to scorn Congress for sloppy or irresponsible work.12 One study has found that the number of signing statements responds positively to the presence of a federal election, going up during a presidential or midterm election and falling during off-year elections.13

The second, third, and fourth uses for the signing statement involve interpreting the Constitution. They either rely upon the Oath Clause or the Take Care Clause in Article II.14

The second use for the signing statement, and one that stems from the President' s oath to protect and defend the Office of the Presidency as well as the Constitution, involves the President challenging provisions of a bill he deems unconstitutional. …

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