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Examining the Furor over Presidential Signing Statements

By Leon H Wolf Posted in Law — Comments (10) / Email this page » / Leave a comment »

More - much more - will be forthcoming about the use of Presidential Signing Statements (PSSs) by President Bush, but as a preliminary matter, I wanted to dispel the notion that the usage of such PSSs is either new or novel, or that the manner in which they have been used by the Bush administration is new or novel, or that it indicates that he is "acting like a king" as some bloggers have hysterically claimed. The purpose of this post will be to show that President Bill Clinton's administration stridently defended the practice of using PSSs, and used them far more often than the Bush administration.

Evidence below the fold...

In the first place, there is the rather simple fact that President Clinton issued well over 350 PSSs, compared with less than 150 thus far for President Bush. This fact is seldom mentioned or acknowledged, but where it is, the claim is generally that President Bush's are worse because he is using them in a way to declare that he will not enforce a certain provision because it unconstitutionally encroaches on his Presidential power. It cannot be gainsaid that President Bush does this in his Presidential Signing Statements. What generally goes unnoticed is the defense and use of this practice by the Clinton Administration. For instance, Presidential Counsel Bernard Nussbaum wrote in an Opinion for the Office of Legal Counsel (17 Op. O.L.C. 131, for those with access to such things):

This memorandum provides you with an analysis of the legal significance of Presidential signing statements. It is addressed to the questions that have been raised about the usefulness or validity of a such statements. We believe that such statements may on appropriate occasions perform useful and legally significant functions. These functions include (1) explaining to the public, and particularly to constituencies interested in the bill, what the President believes to be the likely effects of its adoption, (2) directing subordinate officers within the Executive Branch how to interpret or administer the enactment, and (3) informing Congress and the public that the Executive believes that a particular provision would be unconstitutional in certain of its applications, or that it is unconstitutional on its face, and that the provision will not be given effect by the Executive Branch to the extent that such enforcement would create an unconstitutional condition.

And further:

Signing statements have frequently expressed the President's intention to construe or administer a statute in a particular manner (often to save the statute from unconstitutionality), and such statements have the effect of binding the statutory interpretation of other Executive Branch officials.

No wait, there's more:

Thus, the President may use a signing statement to announce that, although the legislation is constitutional on its face, it would be unconstitutional in various applications, and that in such applications he will refuse to execute it. Such a Presidential statement could be analogized to a Supreme Court opinion that upheld legislation against a facial constitutional challenge, but warned at the same time that certain applications of the act would be unconstitutional. Cf. Bowen v. Kendrick, 487 U.S.  [*6]  589, 622-24 (1987) (O'Connor, J., concurring). Relatedly, a signing statement may put forward a "saving" construction of the bill, explaining that the President will construe it in a certain manner in order to avoid constitutional difficulties. See Federal Election Comm'n v. NRA Political Victory Fund, 1993 U.S. App. LEXIS 27298 (D.C. Cir. 1993), at *11-*12 (Silberman, J., joined by Wald, J.) (citing two Presidential signing statements adopting "saving" construction of legislation limiting appointment power). This, too, is analogous to the Supreme Court's practice of construing statutes, if possible, to avoid holding them unconstitutional, or even to avoid deciding difficult constitutional questions.

But the most damaging material of all comes from a 1994 memo from White House Counsel Abner K. Mikva, which explained the President's responsibility both to refuse to enforce provisions which encroached upon his authority and his authority to announce his intention to do so ahead of time (18 Op. O.L.C. 199):

Second, consistent and substantial executive practice also confirms this general proposition. Opinions dating to at least 1860 assert the President's authority to decline to effectuate enactments that the President views as unconstitutional. See, e.g., Memorial of Captain Meigs, 9 Op. Att'y Gen. 462, 469-70 (1860) (asserting that the President need not enforce a statute purporting to appoint an officer); see also annotations of attached Attorney General and Office of Legal Counsel opinions. Moreover, as we discuss more fully below, numerous Presidents have provided advance notice of their intention not to enforce specific statutory requirements that they have viewed as unconstitutional, and the Supreme Court has implicitly endorsed this practice. See INS v. Chadha, 462 U.S. 919, 942 n.13 (1983) (noting that Presidents often sign legislation containing constitutionally objectionable provisions and indicate that they will not comply with those provisions).

Tell us more, King William!

The President has enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency. Where the President believes that an enactment unconstitutionally limits his powers, he has the authority to defend his office and decline to abide by it, unless he is convinced that the Court would disagree with his assessment. If [*6]  the President does not challenge such provisions (i.e., by refusing to execute them), there often will be no occasion for judicial consideration of their constitutionality; a policy of consistent Presidential enforcement of statutes limiting his power thus would deny the Supreme Court the opportunity to review the limitations and thereby would allow for unconstitutional restrictions on the President's authority.

Well, are there any situations in which the President might even do so if no judicial review were available?

Some legislative encroachments on executive authority, however, will not be justiciable or are for other reasons unlikely to be resolved in court. If resolution in the courts is unlikely and the President cannot look to a judicial determination, he must shoulder the responsibility of protecting the constitutional role of the presidency. This is usually true, for example, of provisions limiting the President's authority as Commander in Chief. Where it is not possible to construe such provisions constitutionally, the President has the authority to act on his understanding of the Constitution.

This would seem to indicate that certain sockpuppets are being a little... um... selective in their outrage. For you see, not only did Clinton's legal team advise him that such action would be legal, Clinton himself took this advice and used Presidential Signing Statements to announce that he would construe portions of duly enacted legislation as "advisory" when they clearly were not (for those who have not been keeping track, this is the Great Evil that Bush is accused of doing). For some examples:

Statement on Signing Legislation To Reform the Financial System, 35 Weekly Comp. Pres. Doc. 2363. ("I therefore do not interpret the restrictions of section 332(b)(1) as binding and will regard any such lists of recommended candidates as advisory only."

Statement on Signing the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2000, 35 Weekly Comp. Pres. Doc. 2126. ("To the extent that this provision would interfere with my duty to "take Care that the Laws be faithfully executed," or impede my ability to act as the chief executive, it would violate the constitution, and I will treat it as advisory.")

Statement on Signing the National Defense Authorization Act for Fiscal Year 2000, 35 Weekly Comp. Pres. Doc. 1927. ("To the extent that these provisions conflict with my constitutional responsibilities in these areas, I will construe them where possible to avoid such conflicts, and where it is impossible to do so, I will treat them as advisory. I hereby direct all executive branch officials to do likewise.")

Statement on Signing the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, 34 Weekly Comp. Pres. Doc. 2108. ("Section 514 of the Foreign Operations/Export Financing appropriations section purports specifically to direct the Executive on how to proceed in negotiations with international organizations. These provisions could interfere with my constitutional authority in the area of foreign affairs. I shall treat all such provisions as advisory."

I could go on and on, but there's no need in beating a dead horse. Just to deflate the final talking point, that President Bush would be legally obligated to instead veto an entire statute if he found part of it to be unconstitutional, the Clinton Office of Legal Counsel again comes to the rescue:

. The fact that a sitting President signed the statute in question does not change this analysis. The text of the Constitution offers no basis for distinguishing bills based on who signed them; there is no constitutional analogue to the principles of waiver and estoppel. Moreover, every President since Eisenhower has issued signing statements in which he stated that he would refuse to execute [*9]  unconstitutional provisions. See annotations of attached signing statements. As we noted in our memorandum on Presidential signing statements, the President "may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing. If so, then a signing statement that challenges what the President determines to be an unconstitutional encroachment on his power, or that announces the President's unwillingness to enforce (or willingness to litigate) such a provision, can be a valid and reasonable exercise of Presidential authority." Memorandum for Bernard N. Nussbaum, Counsel to the President, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel at 4...

In accordance with these propositions, we do not believe that a President is limited to choosing between vetoing, for example, the Defense Appropriations Act and executing an unconstitutional provision in it. In our view, the President has the authority to sign legislation containing desirable elements while refusing to execute a constitutionally defective provision.

There are, I think, good reasons for treating all "law" that does not arise in the context of bicameral passage and presentment in very suspect light; by which I mean that this and other forms of legislative history and post-history should not be given the force of law, or be particularly meaningful for the judicial branch in interpreting the law. But it's important to realize that the assertion that the President's usage of Presidential Signing Statements is some shocking new aggrandizement of power is nothing more than a shockingly ignorant talking point, which has hopefully met its timely death.