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Presidential Signing Statements and Their Implications for Public Nancy Roberts, Editor James P. Pfi ffner George Mason University Presidential Signing Statements and Th eir Implications Public for Public Administration Documents For most of U.S. history, presidents have issued signing the permanent stationing of United States Armed James P. Pfi ffner is University Professor statements to comment on bills being signed into law. Forces in Iraq.” When President Bush signed the law, in the School of Public Policy at George Mason University. His areas of specializa- Th ese statements often are hortatory and comment on the he issued a signing statement that said, “Provisions of tion are public administration, the merits of the new law. In recent decades, presidents also the Act, including sections 841, 846, 1079, and 1222 presidency, and American national have used signing statements to indicate portions of laws purport to impose requirements that could inhibit the government. He has written or edited twelve books on these topics. This article is that they consider unconstitutional. Pointing out such President’s ability to carry out his constitutional obli- drawn from the author‘s book, Power Play: parts of new statutes is not a problem, but indicating that gations to take care that the laws be faithfully ex- The Bush Presidency and the Constitution, the president may not execute part of the law is problem- ecuted. Th e executive branch shall construe such published by the Brookings Institution Press in 2008. atic. President George W. Bush used signing statements provisions in a manner consistent with the constitu- E-mail : pfi [email protected] in an aggressive way to imply that he might not faith- tional authority of the President” ( White House fully execute more than 1,000 provisions of statutes that 2008 ). Th us, President Bush left open the possibility he signed into law. Th is essay argues that this practice that U.S. troops would be stationed in Iraq on perma- undermines the rule of law and threatens the separation nent bases and signaled his conviction that Congress of powers system. could not control expenditures from the treasury through law. Article I: “All legislative Powers herein granted shall be vested in a Congress of the United On March 9, 2006, President Bush signed a reau- States . .” thorization of the USA PATRIOT Act (H.R. 3199), which was soon to expire. Legislators worried about Article II: “ . [H]e shall take Care that the civil liberties were concerned that the Federal Bu- Laws be faithfully executed . .” reau of Investigation was conducting searches of homes and private records without warrants and n 2005, Senator John McCain introduced an called for more congressional oversight. In order to amendment to a military authorization act that end a fi libuster that delayed a vote on the bill, the I would outlaw any torture by United States per- administration agreed to provisions that would sonnel anywhere in the world. When signing the bill require it to report to oversight committees about into law, President George W. Bush issued a signing its use of the law‘s search provisions. Th ese legal statement that read in part, “Th e executive branch guarantees convinced some members of Congress to shall construe Title X [of the Detainee Treatment Act] drop their objections and to allow the bill to come relating to detainees, in a manner consistent with the to the fl oor for a vote and be passed. President Bush constitutional authority of the President to supervise signed the bill into law with much fanfare in the the unitary executive branch.” By issuing this signing East Room of the White House. Yet after signing statement, President Bush raised the possibility that the bill, the president issued a signing statement he would not execute the law, using the justifi cation declaring, “Th e executive branch shall construe the that it might interfere with his prerogatives as com- provisions of H.R. 3199 that call for furnishing mander in chief. information to entities outside the executive branch [i.e., Congress] . in a manner consistent with the In 2008, Congress passed the National Defense Au- President’s constitutional authority to . withhold thorization Act of Fiscal Year 2008; section 1222 of information the disclosure of which could impair the act provided that “no funds appropriated pursuant foreign relations, national security, the deliberative to an authorization of appropriations in this Act may processes of the Executive, or the performance of be obligated or expended . to establish any military the Executive’s constitutional duties” (quoted in installation or base for the purpose of providing for Savage 2007, 228 ). 1 Presidential Signing Statements 249 In these signing statements, tutional questions. Th is was a President Bush directly chal- President Bush directly sharp increase in constitutional lenged the ability of Congress to challenged the ability of objections from the 24 that constrain executive actions, the Congress to constrain executive President Carter issued, and it nature of the rule of law in the ushered in the era of more active United States, and the meaning actions, the nature of the rule of use of signing statements to of the separation of powers sys- law in the United States, and challenge the constitutionality of tem. In hundreds of other objec- the meaning of the separation laws ( Halstead 2007, 3 ). Th e tions to laws contained in of powers system. Reagan administration began its signing statements, President systematic campaign to use sign- Bush challenged the authority of ing statements in a strategic Congress and the law to force him to do anything he manner for several purposes: to get signing statements deemed an unconstitutional infringement on his institutionalized and accepted within the executive authority as president. 2 Such statements can place branch, to get them seen as legitimate sources of legis- public administrators into diffi cult situations: Should lative intent, to allow the president to use them to one follow the president’s directive, or carry out the instruct executive branch subordinates, and to raise law as passed by Congress and signed by the challenges to the constitutionality of parts of president? statutes to which the president objected ( Alito 1986; Kelley , forthcoming). The Nature of Signing Statements Signing statements are offi cial pronouncements by the President George H. W. Bush was concerned with president that are issued when he signs a bill into law protecting presidential prerogatives against Congress. ( Cooper 2002 ). Th ese statements are recorded, but He issued 214 signing statements and raised constitu- their legal and authoritative status has been in dispute, tional issues in 146 of them. President Bill Clinton especially during the Bush administration. Th e prac- also used signing statements to claim that Congress tice of making presidential comments on the law is had overstepped its authority in some laws. He issued benign; there is no reason the president should not 391 signing statements, most of which did not raise make public and offi cial comments on a law that he constitutional issues, but 105 of them did. signs into law. Noting constitutional objections to the law, however, raises troubling questions, if the impli- President George W. Bush issued signing statements cation is that the president may choose not to execute regarding 171 laws (as of October 15, 2008), fewer laws to which he has constitutional objections. Sign- than the 391 of President Clinton. But most of ing statements were issued occasionally during the them, 127, made constitutional claims, as opposed fi rst century and a half of the republic, but in the to the 105 of President Clinton. More important, latter half of the twentieth century, they increased in however, was the fact that in those 171 signing state- usage and importance. ments, President Bush objected to more than 1,168 provisions of laws ( Kelley 2008) . Th is is almost twice Th e use of rhetorical signing statements began to as many as all previous presidents of the United increase during the Harry S Truman administration, States combined. All previous presidents issued a but the most controversial use of signing statements total of fewer than 600 constitutional challenges has been to register reservations about the constitu- to laws in their signing statements ( Savage tionality of the law in question. Th e use of signing 2007, 230 ). statements for this purpose began to be taken seri- ously during the Jimmy Carter and Gerald Ford In addition to the sheer volume of challenges to laws, presidencies. It was during the Ronald Reagan presi- President Bush used signing statements in a systematic dency, however, that signing statements were used in and strategic way to lay the groundwork for claiming a systematic way to argue that presidential opinions more presidential power. Any provision in a law that about legislative intent should be considered by might conceivably relate to executive authority was courts (when the language of the statue is unclear), subject to a signing statement objection, often of a just as congressional committee reports have been general and vague type, rather than a specifi c objec- used. Th e Reagan administration also used signing tion accompanied by legal reasoning. statements to assert that the president might not be obligated to execute laws. Th e use of signing statements for hortatory, ceremo- nial, or informational purposes is legitimate and not During the Reagan administration in the 1980s, controversial. Presidents ought to be able to say what executive branch lawyers made a concerted eff ort to they want about laws, and presidential signing state- enhance the authority of the presidency through ments can be used legitimately as vehicles for these signing statements. President Reagan issued a total of benign purposes. When presidents go further, 276 signing statements, and 71 of those raised consti- however, in their claims for the authority of signing 250 Public Administration Review • March | April 2009 statements, their use of this ve- raises serious constitutional ques- hicle becomes more problematic.
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