The Presidential Signing Statements Controversy1
Cass, Ronald A., Strauss, Peter L., The William and Mary Bill of Rights Journal
Presidential signing statements have come out of obscurity and into the headlines. Along with salutary attention to an interesting issue, the new public visibility of signing statements has generated much overblown commentary. The desire to make these little-known documents interesting to the public - and to score points in the inevitable political battles over any practice engaged in by a sitting President - has produced a lot of discussion that misleads the public and has tended to obscure the significant issues surrounding the use of signing statements. Reflection may help put the discussion in a more useful perspective. We offer these views as the joint product of persons who have served under different Presidents and are identified as Republican and Democrat (one in each camp) and as enthusiasts for fairly strong and relatively modest views of presidential authority under the Constitution (also one in each camp).
Presidents long have said what they think of the bills they sign into law and for two centuries have issued formal statements when they find something particularly noteworthy.2 Even though conflicts over signing statements have arisen from time to time for more than 175 years, the practice of issuing these statements remained little known and little noticed until the past few years.3 Recently, from the public's vantage, everything seems to have changed.
Newspaper exposés two years or so ago made it appear that President George W. Bush had greatly expanded the use of these statements beyond the practices of his predecessors, and concern over this characterization prompted both a Senate hearing (while the Senate remained Republican)4 and an American Bar Association (ABA) resolution condemning misuse of presidential signing statements.5 The bar association's resolution followed a much talked-about report by a blue-ribbon ABA task force and highly publicized statements from its chair, Neil Sonne«, tying the ABA' s initiative to constrain signing statements to concerns about the Bush administration.6 Subsequent to the Republicans' loss of control in Congress, the controversy continued with no lowering of the sound level. The House of Representatives has held hearings on the use of signing statements;7 a bill has been filed to prevent the use of any funds for signing statements;8 the Congressional Research Service has produced a report on signing statements' constitutional and institutional implications;9 the Government Accountability Office (GAO), at the urging of congressional Democrats, has studied their actual implementation;10 and this symposium has been held.
News reports and statements by politicians have cast the use of signing statements as a threat to our constitutional system and its division of powers among the branches of government.11 Mr. Sonnett and other ABA leaders, for example, declared that any use of signing statements to assert the unconstitutionality of elements of a statute, or to direct an interpretation inconsistent with clear congressional purpose, is a misuse of presidential power. 12 They proclaimed that the Constitution gives the President the simple choice of vetoing laws or signing them, adding that if the President signs a bill into law, he cannot qualify that choice.13 That was the theme sounded in the congressional hearings as well.14 And, following the release of the GAO report, the New York Times editorialized that President Bush had used signing statements to dramatically flout the law and the will of Congress, characterizing the administration's approach as one of "Don't Veto, Don't Obey."15
In our judgment, there is a lot more smoke than fire in this uproar - although there is some fire, and that is worth focusing on. While President Bush has used his signing statements to take exception to many more individual provisions of legislation than any of his predecessors16 and has tended to issue relatively lengthy statements, in fact they were often used by each of his three immediate predecessors, including President Clinton, whose frequency was quite similar to that of President Bush. …