Flooded by the Lowest EBB: Congressional Responses to Presidential Signing Statements and Executive Hostility to the Operation of Checks and Balances

AuthorSofía E. Biller
PositionJ.D. Candidate, The University of Iowa College of Law
Pages02

J.D. Candidate, The University of Iowa College of Law, 2008; M.A., Indiana University, 1999; B.A., Brown University, 1995. For Clika, Tim, and Selim.

Page 1069

I Introduction

"[E]mergency did not create power; it merely marked an occasion when power should be exercised." 1

"In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution." 2

The Constitution, particularly the Presentment Clause, fails to address the topic of presidential signing statements, which are pronouncements that the President issues concurrent to or in connection with the President's signing of a bill.3 Although Presidents initially used signing statements sparingly, the frequency of their use has increased throughout the twentieth century. Recently, presidential administrations began wielding these instruments in an attempt to regain some control from a post-Watergate Congress they viewed as having grown too powerful. These administrations have used the signing statements to influence administrative discretion within the executive branch when congressional hostility to the President's agenda has led to a polarized political environment.4 During the Reagan Administration, the presidency began to utilize signing statements in an organized and strategic manner, culminating in an unprecedented surge in the number of legislative provisions that the current President has challenged in his signing statements.5

The George W. Bush Administration has regularly released signing statements of unusually broad scope, in which the President takes issue with the law and, in certain cases, disclaims it.6 Yet, these deprecating messages Page 1070 are difficult to reconcile with the anomalous fact that, in the first seven years of his Administration, President Bush exercised his veto power only nine times.7 If he opposes a law that Congress passes, it seems strange that he refuses to exercise his veto power.8 Arguably, when the President refuses to enforce the law that he signs, he does not comply with his constitutional duty to take care that the laws are faithfully executed.9 Presidential signing statements undermine the rule of law when the statements assert that the President will comply with or enforce the law at his discretion. Critics of signing statements maintain that by taking exception to particular provisions of a bill which he nonetheless signs, the President undermines the legislature's enactment of the law and its power to override a presidential veto.10 By circumventing the constitutional decision-making structure and bypassing the veto, the President may also evade public scrutiny and political accountability. Finally, Bush Administration signing statements advance the notion of the President as the "'sole organ'"11 of the administrative state, an assertion of authority made explicit in Executive Order 13,422, which President Bush issued in January 2007.12 Thus, critics contend that the Bush Page 1071 Administration's reliance on signing statements suggests an underlying reluctance to engage in transparent governance and an aversion to negotiating within the established framework of checks and balances.13

Concern over the threat posed by the President's practice peaked in 2006, when the American Bar Association and Congress issued reports on the constitutional implications and consequences of presidential signing statements.14 The Presidential Signing Statements Act of 2006 ("the Act of 2006" or "the Act") was among the various proposals the 109th Congress raised in response to these reports. This Note assesses the strengths and flaws of the Act in light of the typical objections and challenges that the Bush Administration signing statements present.

The Act would prohibit state and federal courts from using signing statements to construe federal statutes.15 Moreover, the Act would give Congress standing to obtain declaratory judgments from any federal court of the United States on the legality of any presidential signing statement. The Act would also grant Congress a right of intervention in any proceeding before the Supreme Court relating to the construction or constitutionality of any statute for which a president issued a signing statement.

This Note posits that the Act of 2006 fails to respond effectively to the proliferation of presidential signing statements. In the ensuing discussion, Part II tracks the development in the mode and utilization of signing statements from the Reagan Administration to the current controversy. Part III discusses the Act of 2006 in greater detail. Part IV assesses the strengths and weaknesses of the Act. In particular, this Note maintains that the Act fails to create a mechanism with which to restrain the executive's refusal to execute or comply with the law, which is characterized by some as a prerogative.16 Page 1072

The Act's congressional-standing provision is dubious at best; history demonstrates that the Supreme Court is reluctant to permit Congress to use the courtroom as a forum for resolving Congress's disputes with the Executive.17 The current Supreme Court-particularly Justice Alito, in light of the instrumental role he played in developing presidential signing statements as a tool of executive action18-would probably decline to umpire a separation-of-powers debate over the constitutionality of signing statements. The Presidential Signing Statement Act of 2007, a new bill introduced in the 110th Congress, confirms that the congressional-standing provision was a major weakness of the Act of 2006 and eliminates that provision altogether. 19 Page 1073

Further, the Act's focus on the judicial use of the statements is misguided because courts rarely rely on signing statements when interpreting statutes.20 When courts do rely on the statements, the statements are rarely outcome-determinative.21 Most of the signing statements are simply too vague (many do not specify the particular provisions or statutory constructions to which they object) or lack specific language to which the executive could be held accountable.22 In other words, the paramount concern is not judicial reliance, but that the President reserves the right to implement the laws in a manner he deems consistent with his conception of the outer limits of executive authority.23 When the President determines that a law encroaches upon these limits, he deems the law unconstitutional and, therefore, not binding. However, many consider this view on the scope of executive power to be overreaching and this kind of execution to be overly discretionary.24 The abuse of signing statements also harms the "law of lawmaking," as it is inconsistent with the constitutional decision-making structure and emblematizes a sort of Page 1074 pecksniffery in bargaining with the legislature.25 Signing statements purport to obstruct Congress's interaction with federal agencies as well as its oversight function.26 The Act, therefore, does not address the full gamut of problems associated with the excessive use of signing statements, particularly those in the Bush Administration.

Part IV connects the President's use of obstructionist signing statements, his assertion of deliberative-process privilege, and his control over agency interaction with Congress. Given the trend of increased use of presidential signing statements over the past three decades, possible changes in political control do not justify indifference toward signing statements. After all, both Democrats and Republicans have used presidential signing statements.27 The current administration's reliance on signing statements, rather than vetoes, for legislation it considers unconstitutional should not Page 1075 become precedent; the President should exercise his veto power. In general, all branches of government should reflect upon the preservation of the rule of law as intimated by the principles of checks and balances and other structural support systems. To ensure that the President is never above the law-whether in actuality or perception-a consensus on the status of signing statements and their acceptable uses must emerge.

II The Rise Of The Unitary-Executive Mode Of Presidential Signing Statements

Scholars disagree over whether James Monroe or Andrew Jackson first used the presidential signing statement.28 Presidents traditionally employed these statements ceremoniously, for "relatively innocuous purposes," such as "to thank supporters, explain their support for the bill or express satisfaction-or dissatisfication-with legislation."29 In particular, these statements served as epistles to constituencies interested...

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