By Sarah Nelson
In
2006 the American Bar Association convened a task force to investigate the
legality of the presidential signing statement.[i]
A signing statement is defined as a “written comment issued by a President at
the time of signing legislation” and is most often utilized by a President to
offer a comment of approval or disapproval on legislation being passed.[ii].
When adhering to its original purpose, a signing statement is relatively
harmless, and is the equivalent of a President issuing a press release stating
his position. But then why did the American Bar Association task force
determine that signing statements directly “undermines the rule of law” and
compromise “our constitutional system of separation of powers”?[iii]
From
1993 to 1996, Assistant Attorney General Walter Dellinger conducted a research
study on the history of signing statements.[iv]
Dellinger determined that three distinct types of signing statements existed:
constitutional, political and rhetorical. A constitutional signing statement is
one that claims a particular law does not act in accordance with the
Constitution and therefore executive agencies will not take part in enforcing
the law as it is written.[v]
A political signing statement is used by the President to clarify vague
language in a law.[vi]
Finally, Dellinger defines a rhetorical signing statement as a method for
President’s to “mobilize political constituencies” in opposition or in favor of
a law.[vii]
But paradoxically, the constitution type of signing statement is argued to be
unconstitutional.
Presidents
have used presidential signing statements since the administration of James
Monroe in 1817.[viii]
However, they were generally not reported on until the 1980’s when they began
to be used with greater frequency. The New York Times elaborates on the uptake
in frequency noting that before the presidency of Ronald Reagan there had only
been 75 signing statements.[ix]
Between Reagan, George H.W. Bush and Clinton alone there were used 247 times.[x]
During the presidency of George W. Bush he signed 157 signing statements that
“challenged over 1,100 provisions of federal law”.[xi]This
sharp increase has been less drastic during the Obama presidency with only 28
signing statements being issued as of June 17, 2014.[xii]
The legality of signing statements has been thrust into the spotlight due to
the unprecedented rate at which they are being used.
Controversy
over signing statements reached a fever pitch during the presidency of George
W. Bush, with critics claiming that he used them as a form of line-item veto.
Line item vetoes have been unconstitutional since the Supreme Court outlawed
them in the case of Clinton v. City of New York in 1998.[xiii]
One of the most controversial signing statements from the Bush administration
occurred in 2005 with the passage of the Detainee Treatment Act. This
constitutional signing statement announced that the Bush administration would
“construe the act relating to detainees in a manner consistent with the
constitutional authority of the President to supervise the unitary executive
branch…”[xiv]
In essence this voided the legislation passed by Congress in favor of saying
that the executive branch would act as it saw fit in the treatment of
detainees. Opponents of signing statements saw this as a considerable breach of
the separation of powers.
The legal significance of signing statements is best
described as murky and unclear. The United States Constitution provides no
provision that “explicitly permits or prohibits” this presidential practice.[xv]
Therefore signing statements have never been granted a constitutionally based legal
standing. The Presentment Clause of the Constitution located in Article I
Section 7 states that “every order, resolution, or vote to which the
concurrence of the Senate and the House of Representatives may be necessary
(except on a question of adjournment) shall be presented to the President of
the United States; and before the same shall take effect, shall be approved by
him, or being disapproved by him…”[xvi]
The Constitution allows the President to either sign or veto legislation in its
entirety, but mentions nothing about the President being allowed to selectively
choose which parts of legislation he will or will not enforce. Opponents of
signing statements argue that presidents that employ them are in violation of
Article II Section 3 of the Constitution. Article II Section 3 asserts that the
executive offices of the President must “take care that the laws be faithfully
executed”.[xvii]
When a President issues a signing statement specifically saying that he will
not “faithfully execute” a portion of a law he is directly disobeying the
Constitution.
The
Supreme Court has remained ambiguous on the legality of presidential signing
statements. Opponents of signing statements argue that they should be outlawed
because they undermine the Supreme Court’s judicial review established in
Marbury v. Madison.[xviii]
Members of the United States Congress also dispute the legality, particularly former
Pennsylvania Senator Arlen Specter. In 2006 Specter repeatedly advocated for
legislation that would limit the usage of the signing statement. The bill
Specter proposed, called the Presidential Signing Act of 2006, would force
state and federal courts to disregard all presidential signing statements.[xix]
The legislation would have also required the Supreme Court to allow the U.S.
Senate and the U.S. House of Representatives to individually decide the
constitutionally of all signing statements.[xx]
The Presidential Signing Statements Act of 2006 expired within committee, but
copies of the legislation have been systematically reintroduced to Congress.
Controversy
also exists on how the number of signing statements issued by a President
should be calculated. One way to determine the number of signing statements is
to do a “flat count”, which means counting every political, rhetorical and
constitutional signing statement. Another way to complete the calculation is to
only count the number of statutes a particular signing statement challenges
within a law. In research compiled by the Congressional Research Service in
2007 President Clinton was determined to have issued the highest number of
signing statements.[xxi]
However, in a New York Times study
conducted in 2009 President George W. Bush was considered to have “broken all
records” in his number of signing statements.[xxii]
The results vary depending on how the data is interpreted.
The
American Bar Association assembled a task force titled the “Task Force on
Presidential Signing Statements and the Separation of Powers Doctrine”. This
task force issued a report in 2006 that condemned the use of signing statements
claiming that they violated the basic separation of powers.[xxiii]
The task force proposed a number of recommendations including the use of the
presidential veto in place of a signing statement, communication with Congress
when the President deems legislation unconstitutional and the enactment of
legislation that makes all signing statements available to the American public.[xxiv]
As of right now these suggestions have never been implemented.
"Bush's
Tactic of Refusing Laws Is Probed." Washington Post. The Washington
Post, 24 July 2006. Web. 19 Nov. 2014.
"Obama
Circumvents Laws with 'Signing Statements,' a Tool He Promised to Use
Lightly." Washington Post. The Washington Post, n.d. Web. 19 Nov.
2014.
Garvey,
Todd. "Presidential Signing Statements: Constitutional and Institutional
Implications." Congressional Research Service (2012): 7-14.
Congressional Research Service, 4 Jan. 2012. Web. 18 Nov. 2014.
"Presidential
Signing Statements." Library of Congress Home. N.p., n.d. Web. 18
Nov. 2014.
"Presidential
Signing Statements." Presidential Signing Statements Research Guide.
Georgetown Law, n.d. Web. 19 Nov. 2014.
"Presidential
Signing Statements." Presidential Signing Statements. The American
Presidency, n.d. Web. 19 Nov. 2014.
U.S.
Constitution. Article I, Sec, 7.
“Why the Obama Administration Has Issued
Fewer Signing Statements.” The
Miller Center. The University of Virginia, n.d. Web. 19 Nov. 2014.
[i] "Presidential
Signing Statements." Library of Congress Home. N.p., n.d. Web. 18
Nov. 2014.
[ii] "Presidential
Signing Statements." Library of Congress Home.
[iii] "Presidential
Signing Statements." The American Presidency.
[iv] "Presidential
Signing Statements." Presidential Signing Statements Research Guide.
Georgetown Law, n.d. Web. 19 Nov. 2014.
[v] "Presidential
Signing Statements." Presidential Signing Statements Research Guide.
[vi] "Presidential
Signing Statements." Presidential Signing Statements Research Guide.
[vii] "Presidential
Signing Statements." Presidential Signing Statements Research Guide.
[viii]
"Presidential
Signing Statements." Library of Congress Home.
[ix] "Obama
Circumvents Laws with 'signing Statements,' a Tool He Promised to Use
Lightly." Washington Post. The Washington Post, n.d. Web. 19 Nov.
2014.
[xi] Obama
Circumvents Laws with 'signing Statements,' a Tool He Promised to Use
Lightly." Washington Post.
[xii] Obama
Circumvents Laws with 'signing Statements,' a Tool He Promised to Use
Lightly." Washington Post.
[xiii]
"Bush's
Tactic of Refusing Laws Is Probed." Washington Post. The Washington
Post, 24 July 2006. Web. 19 Nov. 2014.
[xiv] "Bush's
Tactic of Refusing Laws Is Probed." Washington Post.
[xv] "Presidential
Signing Statements." Library of Congress Home.
[xvi] “The
Constitution of the United States,” Article I.
[xvii]
“The
Constitution of the United States,” Article I.
[xviii]
"Presidential
Signing Statements." Library of Congress Home.
[xix] "Presidential
Signing Statements." Presidential Signing Statements Research Guide.
[xx] "Presidential
Signing Statements." Presidential Signing Statements Research Guide.
[xxi] Garvey,
Todd. "Presidential Signing Statements: Constitutional and Institutional
Implications." Congressional Research Service (2012): 7-14.
Congressional Research Service, 4 Jan. 2012. Web. 18 Nov. 2014.
[xxii]
Garvey,
Todd. "Presidential Signing Statements: Constitutional and Institutional
Implications."
[xxiii]
Garvey,
Todd. "Presidential Signing Statements: Constitutional and Institutional
Implications."
[xxiv]
Garvey,
Todd. "Presidential Signing Statements: Constitutional and Institutional
Implications."
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