Looking before Watergate: foundations in the development of the constitutional challenges within signing statements, FDR-Nixon.

Author:Evans, Kevin A.
Position:Essay
 
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The people of this country did not elect me to this office to preside over its erosion. And I intend to turn over this office with all of its responsibilities and powers intact to the next man who sits in this chair.

--President Lyndon B. Johnson (Johnson 1965)

I am mindful not only of preserving executive powers for myself, but for predecessors as well. (1)

--President George W. Bush (Kilgannon 2001)

Presidential signing statements have become a multifaceted tool of presidential power. When a president signs a bill into law he often places a signing statement into the

legislative history of the bill. These statements serve a wide variety of purposes for presidents. According to Cooper (2002, 199-230), the president uses these statements to provide recognition for political allies and supporters, make political points, leverage the legislature, prompt or influence judicial action, and establish the legitimacy of their actions. The effectiveness of signing statements at accomplishing these goals is the subject of considerable debate, but presidents have certainly come to rely on signing statements as another tool to help get traction in these important areas.

Sometimes signing statements include constitutional challenges to provisions of legislation. President Johnson's quotation above is taken from one of these statements, and it shows how presidents use them in an attempt to defend their institution. It is mainly these constitutional challenges that stimulate the interest of scholars, members of Congress, and the media. In many situations the president is asserting that he will not implement a law, or that he will implement it in a manner consistent with his view of the constitutional order. Although signing statements have contained these sorts of challenges since the early years of the United States, (2) challenges were relatively rare until after World War II (May 1998). Challenges escalated after the Reagan administration was able to get signing statements included in the legislative history of a bill during the 1980s (Kelley 2007). And challenges went to new heights under President G. W. Bush, who issued more constitutional challenges than all of the previous presidents combined (Kelley 2008). According to Berry (2009), the growth of challenges is closely linked to the growth of statutes that contain legislative vetoes.

This article investigates how the presidents' assertion of constitutional challenges via signing statements has evolved over the course of the modern presidency. Most scholars have focused heavily on signing statements from Reagan forward. Less attention has been given to presidents prior to Reagan and even less to the pre-Watergate presidents. (3) This is surprising given the importance of building precedent in the development of presidential power. Cooper (2002, 219-20) notes that presidents, bureaucrats, and even lobbyists, have cited past signing statements in their efforts to establish the legitimacy of their current actions.

In order better to understand the development of constitutional challenges over the modern presidency, I focus on the time period from FDR to Nixon. Specifically, I ask: how did the signing statements of this period of the modern presidency shape the development of the tool and contribute to its institutionalization? This focus will help fill out the history of signing statements and illustrate the role of the institutionalization of precedential reasoning in the presidency's efforts to defend its prerogatives. To accomplish this task, I make use of a content analysis of all 626 signing statements from 1933 to 1974. (4)

These data provide a detailed view of signing statements from this era and reveal the importance of the presidents from FDR to Nixon in developing the constitutional argumentation against legislation perceived as threatening to the presidency. In particular, I will argue that the administrations of Eisenhower, Johnson, and Nixon played a substantial role in building the precedent necessary for the expansion of this power by subsequent presidents. This argument pushes back against the idea that the presidential assertion of constitutional challenges to legislation is a pendulum motion in response to the congressional assertion of power after the Watergate scandal. I suggest, rather, that the process of using signing statements as a means to protect presidential prerogative was well under way and cultivated by presidents and their lawyers in earlier periods; events after Watergate simply amplified a trend that was already in place. A great deal of the constitutional logic used in contemporary signing statements was indeed rigorously developed during this earlier period and was embedded in the institutional memory of the Office of Legal Counsel (OLC) in the Department of Justice (DOJ) well before the Reagan administration.

Signing Statements, the Unitary Executive, and Legislative Vetoes: The Literature

Presidents have long sought to protect their institution from perceived constitutional encroachments by Congress. As Calabresi and Yoo (2008) argue on the basis of an extensive historical survey, presidents since Washington have consistently resisted legislative encroachments on what these authors classify as the three distinct components of the "unitary executive": "the president's power of removal, the president's power to direct subordinate executive officials, and the president's power to nullify or veto subordinate executive officials' exercise of discretionary executive power" (Calabresi and Yoo 2008, 14). While Calabresi and Yoo focus on the consistency of presidential assertions of constitutional prerogatives, other scholars emphasize the actions of conservative lawyers in the 1970s, '80s, and '90s in elaborating the modern version of the strongly unitary executive (see Kelley 2003, 2007, 2010; Skowronek 2009, 2073).

In particular, Christopher Kelley has argued that, while the unitary executive theory surely goes back to the constitutional framing, its constitutional logic was elaborated and its practical significance elevated in the Reagan administration through the use of presidential signing statements (2003, 2007, 2010). Reagan's Executive Orders 12,291 and 12,498 placed the Office of Management and Budget into a more central role in regard to agency rulemaking (Kelley 2003, 185). Second, the Justice Department under Reagan pursued an aggressive strategy of protecting presidential prerogatives and was emboldened in this effort by Supreme Court decisions that legitimated the signing statement as a presidential tool (Kelley 2003, 185). (5) The Court even sided with the Reagan administration on several important decisions that took into account presidential interpretation of poorly defined sections of law in the absence of clear congressional intent (Kelley 2003, 185). Lastly, the decision in 1986 to include signing statements in legislative history gave new levels of credibility to the tool (Kelley 2003, 185). After the Reagan administration accomplished these important feats, the Bush and Clinton administrations further embedded the unitary executive and the signing statement into the presidential portfolio of tools for constitutional conflict, and all presidents since Reagan have adopted similar language in asserting a perceived constitutional right to "supervise the unitary executive" (see Cooper 2005; Evans 2011; Woolley and Peters 2011). (6)

Despite the significance of developments taken in the 1980s, the literature also reveals strong indications that the period of the early modern presidency also deserves close scrutiny. This is especially the case because of the obvious conflict between the unitary executive and the legislative veto. The legislative veto--a statute that creates a "congressional review, deferral, approval or disapproval of proposed executive actions" (Norton 1976, 1)--was first used in 1932 (Berry 2009, 247). As its use expanded, presidents took note, and Cooper (2002, 209) and Dellinger (1993) both observe that after Eisenhower, it became common for presidents to lodge constitutional objections to legislative vetoes. And although the 1983 case, INS v. Chada, "struck down nearly 300 legislative vetoes enacted by Congress over a span of 50 years" (Berry 2009, 247), the veto lives on in modified form (Berry 2008), meaning presidents have had a consistent target at which to aim their unitary executive arrows for almost 80 years. Figure 1 uses comparable data from two recent studies on presidential signing statements (Berry 2009; Thrower 2011) to show the intertwined growth of legislative vetoes and presidential challenges to the constitutionality of bills passed by Congress.

The figure demonstrates that the two grow simultaneously and track one another] Berry (2009, 262) provides similar evidence using data from 1973 to 2006; he shows that legislative veto provisions in legislation are a significant factor that increases the likelihood of challenges from the president in signing statements. It appears that the unitary executive, the signing statement, and the legislative veto are connected, and that the history of their entanglement has not been completely mapped.

This research project seeks to map additional terrain in the development of constitutional challenges in signing statements by looking at the actions of presidential administrations that do not traditionally receive as much attention in such analyses, those from FDR to Nixon. Clearly, the Reagan administration did a great deal for the development of signing statements, but I argue that Reagan built upon a foundation that was well established. Significantly, this argument challenges familiar notions of the dynamics that drive the process of interbranch conflict, placing greater emphasis upon a process of slow, even tedious, institution-building, and less upon the familiar drama of presidents slugging it out with a periodically assertive...

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