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Signing statement

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A signing statement is a proclamation, normally written, issued by a member of the executive branch of a government, usually the head of that branch, to accompany the signing of a law passed by the legislative branch and generally sets forth how the executive branch intends to interpret and enforce the new law.

Proponents of strong constitutional signing statements: Ronald Reagan, left, and George H. W. Bush, right.

The term is mostly used by the federal government of the United States.

Types and meanings of signing statements

The three types of signing statement

Generally any executive statement made with the signing of a law can be said to be a signing statement. Christopher Kelley, a political scientist who has analyzed signing statements, groups them into three categories: [1]

In common usage, the phrase "signing statement" normally refers to 'Constitutional' statements that direct how the law is to be applied.

A note on applying a metric to signing statements

It is common for different metrics to be used when counting an executive's total use of signing statements. A flat count of total signing statements would include the rhetorical and political statements as well as the constitutional. This may give a misleading number when the intent is to count the number of constitutional challenges issued.

Another common metric is to count the number of statutes that are disputed by signing statements. This addresses a count of the constitutional issues, but may be inherently inaccurate due to ambiguity in the signing statements themselves, as well as the method of determining which statutes are challenged.

No United States Constitution provision, federal statute or common-law principle explicitly permits or prohibits signing statements. Article I, Section 7 (in the Presentment Clause empowers the president to veto a law in its entirety, or to sign it. Article II, Section 3 requires that the executive "take care that the laws be faithfully executed".

Signing statements do not appear to have legal force by themselves. As a practical matter, they may give notice of the way that the Executive intends to implement a law, which may make them more significant than the text of the law itself.

Supreme Court rulings

The Supreme Court has not squarely addressed the limits of signing statements. Marbury v. Madison (1803) and its progeny are generally considered to have established judicial review as a power of the Court, rather than of the Executive. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984) recognized court deference to executive interpretations of a law "if Congress has not directly spoken to the precise question at issue" and if the interpretation is reasonable. To the extent that a signing statement would nullify part or all of a law, the Court may have addressed the matter in Clinton v. City of New York (1998), which invalidated any form of line item veto.

Presidential usage

The first president to issue a signing statement was James Monroe.[2] Until the 1980s, with some exceptions, signing statements were generally triumphal, rhetorical, or political proclamations and went mostly unannounced. Until Ronald Reagan became President, only 75 statements had been issued. Reagan and his successors George H. W. Bush and Bill Clinton made 247 signing statements between them. As of 2006, George W. Bush, the current President, has issued over 750 signing statements. [3]

A November 3, 1993 memo from the Clinton Justice Department explained the use of signing statements to object to potentially unconstitutional legislation:

If the President may properly decline to enforce a law, at least when it unconstitutionally encroaches on his powers, then it arguably follows that he 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.[1]

Signing statements may be viewed as a type of executive order without congressional (democratic) oversight. Other types of executive order are, national security directives, homeland security presidential directives, and presidential decision directives, all of which deal with national security and defense matters.

Criticism

George W. Bush's use of signing statements

 
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Critics observe that George W. Bush has often issued signing statements, detailing how the executive branch will construe legislation. Some opponents have said that he in effect uses them as line-item veto although the Supreme Court already held the line item veto as an unconstitutional delegation of power in Clinton v. City of New York.[4]

Bush supporters note that previous administrations had made use of signing statements to dispute the validity of a new law or its individual components. George H. W. Bush challenged 232 statutes through signing statements during four years in office and Clinton challenged 140 over eight years. However, George W. Bush has issued over 500 signing statements containing at least 750 challenges.[3] [5] In the words of a New York Times commentary:

And none have used it so clearly to make the president the interpreter of a law's intent, instead of Congress, and the arbiter of constitutionality, instead of the courts.[6]

One of the signing statements which has attracted most controversy is the signing of the McCain Detainee Amendment, prohibiting cruel, inhuman and degrading treatment of detainees in U.S. custody:

"The Executive Branch shall construe [the torture ban] in a manner consistent with the constitutional authority of the President to supervise the unitary Executive Branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power."

Since, under the unitary executive theory, the Commander-in-Chief has broad authority to use his discretion in interpreting and applying the law regarding the manner in which the President acts pursuant to executive authority, some critics argue that the President has with that statement reserved the right to waive the "torture ban."[7]

On June 5, 2006, the American Bar Association's Board of Directors formed a Task Force on Presidential Signing Statements and the Separation of Powers Doctrine to review the use of signing statements and whether or not this use is consistent with the U.S. Constitution.[8]

See also

References

  1. ^ Kelly, Christopher S. (April 3-6, 2003). "A Comparative Look at the Constitutional Signing Statement: The Case of Bush and Clinton". 61st Annual Meeting of the Midwest Political Science Association.
  2. ^ Kelley, Christopher (2003), The Unitary Executive and the Presidential Signing Statement, Ph.D. Dissertation, Miami University.
  3. ^ a b Lithwick, Dahlia (Jan. 30, 2006). "Sign Here". Slate.
  4. ^ On signing statements
  5. ^ *Number of new statutes challenged, Christopher Kelley, The Boston Globe, April 30, 2006
  6. ^ Veto? Who Needs a Veto? The New York Times, May 5, 2006
  7. ^ McCain Detainee Amendment
  8. ^ "ABA to Examine Constitutional, Legal Issues of Presidential Signing Statements" (Press release). American Bar Association. June 5, 2006. Retrieved 2006-06-07. {{cite press release}}: Check date values in: |date= (help)
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