A signing statement is a written pronouncement issued by the President of the United States upon the signing of a bill into law. They are usually printed along with the bill in United States Code Congressional and Administrative News (USCCAN).
During the administration of President George W. Bush, there was a controversy over the President's use of signing statements, which critics charged was unusually extensive and modified the meaning of statutes. The practice predates the Bush administration, however, and has since been continued by the Obama administration. In July 2006, a task force of the American Bar Association stated that the use of signing statements to modify the meaning of duly enacted laws serves to "undermine the rule of law and our constitutional system of separation of powers".
In recent usage, the phrase "signing statement" has referred mostly to statements relating to constitutional matters that direct executive agencies to apply the law according to the president's interpretation of the Constitution.
The "non-signing statement" is a related method that some presidents have used to express concerns about certain provisions in a bill without vetoing it. With the non-signing statement, presidents announce their reasons for declining to sign, while allowing the bill to become law unsigned. The U.S. Constitution allows such enactments by default: if the President does not sign the bill, it becomes law after ten days, excepting Sundays, "unless the Congress by their Adjournment prevent its Return..."
There is a controversy about how to count an executive's 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 not only to ambiguity in the signing statements themselves but also to the method of determining which statutes are challenged.
A Congressional Research Service report issued on September 17, 2007, uses as a metric the percentage of signing statements that contain "objections" to provisions of the bill being signed into law:
President Reagan issued 250 signing statements, 86 of which (34%) contained provisions objecting to one or more of the statutory provisions signed into law. President George H. W. Bush continued this practice, issuing 228 signing statements, 107 of which (47%) raised objections. President [Bill] Clinton's conception of presidential power proved to be largely consonant with that of the preceding two administrations. In turn, President Clinton made aggressive use of the signing statement, issuing 381 statements, 70 of which (18%) raised constitutional or legal objections. President George W. Bush has continued this practice, issuing 152 signing statements, 118 of which (78%) contain some type of challenge or objection.
In March 2009, The New York Times cited a different metric, the number of sections within bills that were challenged in signing statements:
Mr. [George W.] Bush ... broke all records, using signing statements to challenge about 1,200 sections of bills over his eight years in office, about twice the number challenged by all previous presidents combined, according to data compiled by Christopher Kelley, a political science professor at Miami University in Ohio.
No United States Constitution provision, federal statute, or common-law principle explicitly permits or prohibits signing statements. However, there is also no part of the Constitution that grants legal value to signing statements. Article I, Section 7 (in the Presentment Clause) empowers the president to veto a law in its entirety, to sign it, or to do nothing. Article II, Section 3 requires that the executive "take care that the laws be faithfully executed". The Constitution does not authorize the President to cherry-pick which parts of validly enacted Congressional Laws he is going to obey and execute, and which he is not.
Signing statements do not appear to have legal force by themselves, although they are all published in the Federal Register. 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. There is a controversy about whether they should be considered as part of legislative history; proponents argue that they reflect the executive's position in negotiating with Congress; opponents assert that the executive's view of a law is not constitutionally part of the legislative history because only the Congress may make law.
Presidential signing statements maintain particular potency with federal executive agencies, since these agencies are often responsible for the administration and enforcement of federal laws. A 2007 article in the Administrative Law Review noted how some federal agencies' usage of signing statements may not withstand legal challenges under common law standards of judicial deference to agency action.
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), established 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. This applies only to executive agencies; the President himself is not entitled to Chevron deference. 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 the line-item veto because it violated bicameralism and presentment.
In Hamdan v. Rumsfeld (2006), the Supreme Court gave no weight to a signing statement in interpreting the Detainee Treatment Act of 2005, according to that case's dissent (which included Justice Samuel Alito, a proponent of expanded signing statements when he worked in the Reagan Justice Department — see "Presidential Usage" below).
The first president to issue a signing statement was James Monroe. 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 produced 247 signing statements among the three of them. By the end of 2004, George W. Bush had issued 108 signing statements containing 505 constitutional challenges. As of January 30, 2008, he had signed 157 signing statements challenging over 1,100 provisions of federal law.
The upswing in the use of signing statements during the Reagan administration coincides with the writing by Samuel Alito—then a staff attorney in the Justice Department's Office of Legal Counsel—of a 1986 memorandum making the case for "interpretive signing statements" as a tool to "increase the power of the Executive to shape the law." Alito proposed adding signing statements to a "reasonable number of bills" as a pilot project, but warned that "Congress is likely to resent the fact that the President will get in the last word on questions of interpretation."
A November 3, 1993, memo from White House Counsel Bernard Nussbaum 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.
This same Department of Justice memorandum observed that use of presidential signing statements to create legislative history for the use of the courts was uncommon before the Reagan and Bush presidencies. In 1986, Attorney General Edwin Meese entered into an arrangement with the West Publishing Company to have Presidential signing statements published for the first time in the U.S. Code Congressional and Administrative News, the standard collection of legislative history.
George W. Bush's use of signing statements was and is controversial, both for the number of times employed (over 700 opinions, although Bill Clinton actually issued more) and for the apparent attempt to nullify legal restrictions on his actions through claims made in the statements — for example, his signing statement attached to the National Defense Authorization Act for Fiscal Year 2008. Some opponents have said that he in effect uses signing statements as a line-item veto; the Supreme Court had previously ruled such vetoes as unconstitutional in the 1998 case, Clinton v. City of New York.
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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. George W. Bush's 130 signing statements contain at least 1,100 challenges.
The signing statement associated with the Detainee Treatment Act of 2005, prohibiting cruel, inhumane, and degrading treatment of detainees in U.S. custody attracted controversy:
The executive branch shall construe... the Act, relating to detainees, 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....
The use of signing statements that fall into the constitutional category can create conundrums for executive branch employees. Political scientist James Pfiffner has written:
The president is the head of the executive branch, and in general, executive branch officials are bound to follow his direction. In cases in which a subordinate is ordered to do something illegal, the person can legitimately refuse the order. But if the public administrator is ordered to refuse to execute the law ... because the president has determined that the law infringes on his own interpretation of his constitutional authority, the public administrator faces an ethical dilemma.
On July 24, 2006, the American Bar Association's Task Force on Presidential Signing Statements and the Separation of Powers Doctrine, appointed by ABA President Michael S. Greco, issued a widely publicized report condemning some uses of signing statements. The task force report and recommendations were unanimously approved by ABA delegates at their August 2006 meeting.
The bipartisan and independent blue ribbon panel was chaired by Miami lawyer Neal Sonnett, a former Assistant U.S. Attorney and Chief of the Criminal Division for the Southern District of Florida. He is past chair of the ABA Criminal Justice Section, chair of the ABA Task Force on Domestic Surveillance and the ABA Task Force on Treatment of Enemy Combatants; and president-elect of the American Judicature Society.
The report stated in part:
On March 9, 2009, President Barack Obama ordered his executive officials to consult Attorney General Eric Holder before relying on one of George W. Bush's signing statements to bypass a statute. He stated that he only plans to use signing statements when given legislation by Congress which contain unconstitutional provisions. In a memo to the heads of each department in the executive branch, Obama wrote:
In exercising my responsibility to determine whether a provision of an enrolled bill is unconstitutional, I will act with caution and restraint, based only on interpretations of the Constitution that are well-founded.
During his presidential campaign, Obama rejected the use of signing statements. He was asked at one rally: "when congress offers you a bill, do you promise not to use presidential signing statements to get your way?" Obama gave a one-word reply: "Yes." He added that "we aren't going to use signing statements as a way to do an end run around Congress." On March 11, 2009, Obama issued his first signing statement, attached to the omnibus spending bill for the second half of the 2009 fiscal year.
Numerous provisions of the legislation purport to condition the authority of officers to spend or reallocate funds on the approval of congressional committees. These are impermissible forms of legislative aggrandizement in the execution of the laws other than by enactment of statutes. Therefore, although my Administration will notify the relevant committees before taking the specified actions, and will accord the recommendations of such committees all appropriate and serious consideration, spending decisions shall not be treated as dependent on the approval of congressional committees. Likewise, one other provision gives congressional committees the power to establish guidelines for funding costs associated with implementing security improvements to buildings. Executive officials shall treat such guidelines as advisory.Yet another provision requires the Secretary of the Treasury to accede to all requests of a Board of Trustees that contains congressional representatives. The Secretary shall treat such requests as nonbinding.
This statement indicated that while the administration could ignore several provisions of the bill, they would advise congressional committees, and take congressional committees guidelines as advisory, as he considers that "provisions of the legislation purport to condition the authority of officers to spend or reallocate funds on the approval of congressional committees" and the result would be "impermissible forms of legislative aggrandizement in the execution of the laws other than by enactment of statues", including sections dealing with negotiations with foreign governments, restrictions on US involvement in UN peacekeeping missions, protections for government whistleblowers, and certain congressional claims of authority over spending. Obama has issued 28 signing statements as of June 17, 2014.
The bill was referred to the Senate Judiciary Committee, which Specter formerly chaired, on the day it was introduced. As with all unpassed bills, it expired with the end of the 109th United States Congress on December 9, 2006.
Specter reintroduced the legislation with the Presidential Signing Statements Act of 2007, but it died in the same committee.