Signing Statements and the Presidency

Presidents from Monroe to Obama have used Signing Statements.

For my last article I explored the issue of Executive Orders and the Executive Branch.  The bookend to this subject is something a bit more controversial: Signing Statements.  According to The American Presidency Project, Signing Statements are:

“Often signing statements merely comment on the bill signed, saying that it is good legislation or meets some pressing needs.  The more controversial statements involve claims by presidents that they believe some part of the legislation is unconstitutional and therefore they intend to ignore it or to implement it only in ways they believe is constitutional.”

Just as Executive Orders have not always been known as such, the same is true with Signing Statements.  In 1822 President James Monroe issued what we today call a Signing Statement saying that “he had resolved what he saw as a confusion in the law in a way that the thought was consistent with his constitutional authority.”

One justification for presidents to use a Signing Statement, according to a recent memo issued by the Obama Administration is:

Congress these days often passes omnibus bills. If a big bill has only a few problematic parts, a president has to choose between vetoing the whole bill, or agreeing to enforce provisions he believes to be unconstitutional.

During the Presidency of George W. Bush much was made in the press of his use of Signing Statements even though his predecessor, Bill Clinton, actually issued more of them.  The objections to the Signing Statements that former President George W. Bush issued seemed to be that he was using them to “expand presidential power at the expense of the other branches of government.”  Some of his more controversial Signing Statements had to do with warrantless wiretapping, the Patriot Act, and rules and regulations for military prisons.  These objections were answered by saying that because the president is also “Commander in Chief” of the military he is authorized to oversee how these affairs are conducted.

To be sure, the times after September 11, 2001 were rocky and uncharted waters for the United States and its three branches of government.  Many said that the expansion of Executive authority was to the detriment of the U.S. Constitution while others said that they were implicit powers that needed to be exercised if the United States were to successfully fight the forces that battled against the country.

During the presidential campaign of 2008 Barack Obama said that he would not employ Signing Statements.  According to an editorial in the New York Times:

As a candidate, Barack Obama offered withering criticism of President Bush’s signing statements — declarations that he would not enforce parts of the bills he signed.

Once candidate Obama became President Obama, the situation changed quite a bit:

President Obama on Wednesday issued his first signing statement, reserving a right to bypass dozens of provisions in a $410 billion government spending bill even as he signed it into law.

In the statement — directions to executive-branch officials about how to carry out the legislation — Mr. Obama instructed them to view most of the disputed provisions as merely advisory and nonbinding, saying they were unconstitutional intrusions on his own powers.

It seems that, in general, the view of the Executive Branch and Signing Statements looks one way from outside of the White House but, once you’re sitting in the Oval Office things look differently.  Considering the challenges this country faces and the massive all-encompassing bills that Congress sends to the White House, Signing Statements probably have a fairly secure future, objections and all.

- H. Price Jessup, Jr.

Related posts:

1. Executive Orders and the Law
2. Is the Electoral College Obsolete?
3. Just What is a Bill and How Does it Become a Law?

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