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Monday, February 25, 2008
By Steven L. Taylor

I have noted before (here and especially here) my concern with the practice of President’s issuing “signing statements” along with bills that they sign into law. The basic practice is definable as follows (from a CRS report [PDF] on the subject):

Presidential signing statements are official pronouncements issued by the
President contemporaneously to the signing of a bill into law that, in addition to commenting on the law generally, have been used to forward the President’s interpretation of the statutory language; to assert constitutional objections to the provisions contained therein; and, concordantly, to announce that the provisions of the law will be administered in a manner that comports with the Administration’s conception of the President’s constitutional prerogatives.

The major problem here is the notion that a president would sign into law something which that president deems to be unconstitutional, but instead of exercising the constitutionally provided veto, the president would simply allow the bill to become a law, and simply make a note about those provisions in the law that said president feels could be ignored at some later date.1

Such behavior is, I would argue, an abrogation of presidential responsibility, as under our constitutional system, the president is supposed to utilize the veto to reject laws that the president deems to be unconstitutional2 Beyond the abrogation of responsibility, it is noteworthy that the signing statement is an extra-constitutional act, i.e., there is no constitutional provision for the president to issue any type of interpretative document concerning the bills he signs.

Given the recent surge3 in the usage of signing statements, and the general debate that the Bush administration has engendered on the question of executive power, it is worth knowing what the candidates think about signing statements. Matthew Shugart came across a BoGlo piece from last December which detailed the candidate’s views on these statements as part of a questionnaire given to each on executive power.

Of the remaining viable candidates, here are the answers, in full, given to the question on signing statements:

Clinton:

I have opposed the Bush Administration’s abuse of signing statements, and as President, I would not use signing statements to disagree on policy grounds with legislation passed by Congress or as an end run around the veto. I would only use signing statements in very rare instances to note and clarify confusing or contradictory provisions, including provisions that contradict the Constitution. My approach would be to work with Congress to eliminate or correct unconstitutional provisions before legislation is sent to my desk.

Obama:

Signing statements have been used by presidents of both parties, dating back to Andrew Jackson. While it is legitimate for a president to issue a signing statement to clarify his understanding of ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute the law, it is a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability.

I will not use signing statements to nullify or undermine congressional instructions as enacted into law. The problem with this administration is that it has attached signing statements to legislation in an effort to change the meaning of the legislation, to avoid enforcing certain provisions of the legislation that the President does not like, and to raise implausible or dubious constitutional objections to the legislation. The fact that President Bush has issued signing statements to challenge over 1100 laws – more than any president in history – is a clear abuse of this prerogative. No one doubts that it is appropriate to use signing statements to protect a president’s constitutional prerogatives; unfortunately, the Bush Administration has gone much further than that.

McCain:

As President, I won’t have signing statements. I will either sign or veto any legislation that comes across my desk..

The only constitutionally defensible position is that of McCain (and, not coincidentally, it is the briefest of the responses). It would seem to me that both Clinton and Obama are saying that they would use signing statements in a way not that dissimilar to Bush’s, just that they would use them less frequently.

Again: if there is a question about the constitutionality of the law, then the president has a duty, I would argue, to veto the bill and thereby force the Congress to fix the provision (or to abandon the project altogether).

Indeed, if a president wishes to allow a bill to come into law without signing it as a symbolic protest, then that option exists, but that is rather the direct opposite of issuing a signing statement.

  1. This is something President Bush in particular has been a master at doing, indeed in historical fashion. According to the report linked above, if we look at recent Presidents: 26% of Reagan’s signing statement had objections, Bush I’s 68%, Clinton’s 27% and Bush II’s 86%. This was as of October 2006. []
  2. Indeed, that is the original purpose of the veto power–not the shaping of public policy to suit the ideological views of the president . []
  3. If I may use the word. []
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14 Responses to “The Candidates and Signing Statements”

  1. Jan Says:

    Obama states:No one doubts that it is appropriate to use signing statements to protect a president’s constitutional prerogatives

    I’m assuming that is what you are using as your basis of saying that he will use it in the same way as Bush to make Constitutional objections, yes? I’m not sure exactly what that is supposed to mean, but I think he makes it pretty clear that he would not use it for the same purposes as Bush. I actually took the comment about constitutional prerogative to refer back to his comment on faithfully executing the law, but I could be mistaken about that.

  2. Dr. Steven Taylor Says:

    Any president who would use signing statements to protect executive “prerogatives” is asserting an extra constitutional power that ultimately is in the same basic category as what Bush has done as far as I am concerned. It is only a matter of degree.

  3. MichaelB Says:

    I actually think the Bush administration’s approach is much better then the alternative. In practice, the executive branch always has considerable leeway in interpreting a statute. Here at least there’s a statement of what that interpretation will be. There will always be such an interpretation, even if it is developed in an ad hoc “Well, how are we gonna enforce this new law?” kind of way; here at least it’s open for all to read and see.

    As for constitutional issues, this seems remarkably similar to the cannon of constitutional avoidance. That’s one of the most fundamental rules of statutory interpretation used by the courts – and it basically says that if a statute can plausibly be read in a way that does not raise serious constitutional concerns, and also in a way that does raise serious constitutional concerns, the courts will use the former interpretation.

  4. Dr. Steven Taylor Says:

    But if the president believes portions of a bill are unconstitutional/that segments infringe on portions of executive prerogatives, does not that president have a duty to veto the bill?

    To sign a bill and attach a statement saying that certain portions will be ignored is to assert a power that the constitution does not give to the president.

    And it is especially odd that Bush has done this during an era of unified government.

  5. Jan Says:

    I guess I’m just a little confused about what “presidential prerogative” is actually supposed to mean.

  6. MSS Says:

    Bush’s (II) historically high use of signing statements is, as I have noted at F&V, all the more remarkable given that he had co-partisan Congresses for most of his tenure.

    Not that divided government in any way justifies the use of this ‘para-constitutional’ device, but we might expect it to make its use more common. That Bush II has used it so extensively with Republican Congresses really drives home the extent to which his presidency–and his judicial appointments–represents a fundamentally different model of presidentialism: One in which Congress only sets broad parameters, and the executive remains free to implement and interpret as it sees best. (I have called this the Latin American model.)

  7. pennywit Says:

    I actually prefer Obama’s stance on the issue. This phrase in particular rings true:

    While it is legitimate for a president to issue a signing statement to clarify his understanding of ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute the law, it is a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability.

    Using a signing statement to “clarify his understanding of an ambiguous law” seems to be a reasonable exercise of the executive’s discretion, particularly when it comes to contradictory or vague laws.

    –|PW|–

  8. Dr. Steven Taylor Says:

    I certainly find it more palatable. However, again, where in the Constitution is the President afforded such a power/responsibility?

  9. james Says:

    Your “coincidentally” comment is somewhat misleading. If you examine what the candidates said carefully, you will find that McCain does not criticize the current administration. Hence, a far shorter statement. In fact, in this respect, I don’t see that McCain’s statement is a “consitutionally defensible position” at all. (I’m sure there must be something against abuse of power by the administration somewhere in your constitution…)

    The statement does go straight to the point – much as the “You are either with us or against us” statement. (Which is, coincidentally, about as patriotic as you can get, right?)

    Regards.

  10. Dr. Steven Taylor Says:

    James,

    The question that was being answered was specifically about whether the candidates would use signing statements, and so in those terms, McCain’s is the only constitutionally defensible position. You are reading too much into the discussion.

    Now, whether McCain’s overall approach is appropriate, that is a another matter, but the discussion at hand is rather narrow.

  11. Max Lybbert Says:

    Please remember that Bush’s signing statements are all couched in “I believe it is unconstitutional for Congress to make me do X, so I won’t do that part of the law.” Obama’s and Clinton’s statements both leave those kinds of signing statements open. What evidence is there that their idea of unconstitutional is any different than President Bush’s?

    I haven’t been able to figure out President Bush’s reliance on signing statements. It seems to me that if he disagrees with a bill that he doesn’t plan to veto he ought to not sign the bill, allow it to become law, and then issue an executive order regarding that bill. In effect, this would do the same thing the signing statements do but at the same time more clearly oppose the parts of the law the President doesn’t like. Executive orders are legally binding on people who work for the executive branch, but nobody else.

    Additionally, the Constitution gives Congress some ability to determine rules and procedures for federal courts. That includes what gets called law. It seems to me that Congress could always create a rule that signing statements are not “law” and should not be referred to in court disputes.

  12. james Says:

    Dr Taylor:
    You’re right of course – I must have got up on the wrong side of bed this morning. However, Obama invokes precedent, and explains that he would use signing statements for purposes quite different to dubya’s. All in all it seems that he has a far more honest approach to this presidential prerrogative. McCain’s “I shan’t use ‘em” seems somewhat radical to me – a flat rejection that, IMO, will likely become a straight forward lie if he becomes president.

    Mr Lybbert:
    I don’t believe you are right about Obama leaving open the possibility of Bush-like signing statements. He uses nice, friendly phrases such as “intends to faithfully execute the law”, “clear abuse of power to use such statements as a license to evade laws”, “not use signing statements to nullify or undermine congressional instructions”. As such he does seem to have soem sort of idea as to what is unconstitutional and what isn’t.

    Regards.

  13. Dr. Steven Taylor Says:

    James,

    It is always possible that McCain’s would behave differently in office–I can’t deny that. Nevertheless, my preference would be that no one use the darn things period.

  14. Oldfart Says:

    I have heard Edwards make a strong statement in regards to the use of torture and now these two very weak statements by Obama and Clinton about signing statements. I would like to know, if anyone has done the research, whether or not the Obama and Clinton campaigns ever answered what I call the “Ron Paul Test”. By that I mean, strongly or otherwise support his HR 3835 and the statements contained within, to wit:

    http://thomas.loc.gov/cgi-bin/query/z?c110:H.R.3835:

    It is a very short read for most of you. Ron Paul is wrong about many things, but he has this one right.

    It seems very obvious now, also, that the so-called Department of Justice needs to be independent of the Executive or made, in some way, more responsive to the other branches of government and less a creature solely controlled by the Executive. When Bush says that the DOJ, as part of the Executive Branch, cannot be used to investigate the Executive, there is something wrong.


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