Much ado about nothing: signing statements, vetoes, and presidential constitutional interpretation.

• Author: Whittington, Keith E.
• Position: Special Issue on Judicial Supremacy

ABSTRACT

During the Bush presidency, presidential signing statements became briefly controversial. The controversy has faded, but the White House continues to issue statements when signing legislation. Those statements frequently point out constitutional difficulties in new statutes and sometimes warn that the executive branch will administer the statutes so as to avoid those constitutional difficulties. This Article argues that the criticisms of signing statements were mostly misguided. Signing statements as such present few problems and offer some benefits to the workings of the American political system. While there might be reason to object to the substantive constitutional positions adopted in any given signing statement, signing statements as such are mostly unobjectionable. Although it might be preferable for Presidents to veto constitutionally problematic legislation, modern legislative practices have made the veto power less useful and rendered signing statements more useful.

TABLE OF CONTENTS INTRODUCTION I. THE OBJECTION TO SIGNING STATEMENTS II. CONFUSING THE MESSAGE WITH THE MESSENGER III. THE VIRTUE OF SIGNING STATEMENTS IV. THE DECLINE OF THE CONSTITUTIONAL VETO CONCLUSION INTRODUCTION

The final years of the presidency of George W. Bush were absorbed by a variety of constitutional controversies over the scope and exercise of presidential power. Among the more fleeting of these controversies was the dust-up over presidential signing statements. (1) Critics took the White House to task for its extensive use of statements issued upon signing a piece of legislation. (2) Such statements have traditionally served a variety of functions, but the Bush Administration was particularly aggressive in its use of the statements to outline its many constitutional objections to legislative provisions that were being signed into law. (3) As the Administration complained that Congress was passing statutes that impinged on the President's own constitutional prerogatives, (4) critics of the Administration responded by complaining that the President was asserting a dictatorial power to sit in judgment of the constitutionality of Congress's handiwork. (5)

In this Article, I argue that the controversy over the Bush-era signing statements as such was much ado about nothing. The critiques of the signing statements were mostly overblown and misdirected. (6) Indeed, there might well be some benefits to the practice of recording constitutional objections to legislation in signing statements. (7) But the debate tended to obscure what might be useful and what might be objectionable about signing statements and gave inadequate consideration to the possible alternatives to this use of signing statements. (8)

Signing statements were once a fairly obscure type of presidential document of relatively little consequence or controversy. (9) By virtue of the Bush-era controversies, the concept is at least more familiar, even if the actual documents themselves continue to have a low profile. (10) Often, signing statements have been primarily celebratory and political. (11) Accompanied by formal ceremonies, brief signing statements provide an opportunity for credit claiming for policy accomplishments. (12) President Ronald Reagan gathered with congressional leaders on the South Lawn of the White House a few days before the 1986 midterm elections in order to "sign[] the most sweeping overhaul of our tax code in our nation's history." (13) In 1964, President Lyndon B. Johnson gathered congressional and civil rights leaders in the East Room of the White House to watch him issue a televised address upon his signing of the Civil Rights Act. (14) On less momentous occasions, Presidents have simply issued a written statement commemorating their actions, as when President Herbert Hoover informed the country that he had signed a bill authorizing the transfer of juvenile delinquents to local jurisdictions, as recommended by a presidential commission and with the "active interest and approval of social workers all over the country." (15) In other cases, Presidents use signing statements to voice their continuing objections to features of the new legislation, as when President Richard Nixon issued a statement that began, "To avoid any possible misconceptions, I wish to emphasize that section 601 of this act ... does not represent the policies of this Administration." (16) The President would not fail to sign the 1971 Military Appropriations Authorization Bill, but he continued to protest the inclusion of language calling for the announcement of a "final date" for the withdrawal of American troops from Southeast Asia. (17)

For current purposes, the more interesting signing statements are those that mount constitutional arguments connected to the legislation in question and disclose presidential views about future implementation of its provisions. Sometimes, Presidents hope to put a particular spin on legislation they support as when President Franklin D. Roosevelt issued a statement indicating that the Alien Registration Act of 1940 "should be interpreted and administered" so as to protect "the loyal aliens who are [our nation's] guests" from hostile local communities as well as to protect the nation at large from "aliens who are disloyal and are bent on harm to this country." (18) In other cases, signing statements might provide a road map of constitutional concerns as when upon signing the Bipartisan Campaign Reform Act, President George W. Bush announced his expectation "that the courts will resolve these legitimate legal questions as appropriate under the law." (19) Of course, most notoriously, President George W. Bush frequently filled signing statements with the ominous words: "The executive branch shall construe these sections in a manner consistent with the constitutional authority of the President." (20)

The discussion that follows reveals the extent to which criticism leveled at even the most notorious signing statements appears unfounded. In Part I, I outline how signing statements have been used and describe the recent controversy surrounding them. This section identifies the major objections raised by politicians, journalists, lawyers, and scholars against Presidents voicing constitutional objections in signing statements. In Part II, I argue that the objection to signing statements has tended to confuse the message with the messenger. At heart, the objection does not appear directed to signing statements as such but to presidential efforts to interpret the Constitution in the context of their role as chief executive. In Part III, I turn to the potential virtues of presidential signing statements as an instrument for announcing such constitutional views and presidential intentions regarding implementation. Finally, in Part IV, I turn to the use of the presidential veto to block constitutionally defective legislation.

1. THE OBJECTION TO SIGNING STATEMENTS

   Though not specifically anticipated by the U.S. Constitution, presidential signing statements have been a long-standing feature of American political practice. (21) The Constitution only requires two statements from Presidents. First, Presidents are expected to provide Congress "from time to time" with "Information of the State of the Union." (22) In practice, this duty has been fulfilled with an annual message, or, since the Woodrow Wilson Administration, by the oral delivery of the State of the Union address. (23) Second, Presidents are also required to issue a message to Congress when vetoing a bill so that Congress may "enter the Objections at large on their Journal, and proceed to reconsider it." (24) Of course, ever since George Washington's Administration, Presidents have sent Congress a variety of special messages on a range of topics on different occasions. Early Presidents did not routinely issue a statement upon signing bills into law, but in 1830, Andrew Jackson issued the first true signing statement. (25) After signing a bill appropriating funds to extend a road from Detroit to Chicago, President Jackson stated, "I desire to be understood as having approved this bill with the understanding that the road authorized by this section is not to be extended beyond the limits of [the federal territory of Michigan]." (26)

   Such statements were relatively uncommon early in the nation's history but have become increasingly common in the twentieth century. (27) Their use has ranged from the innocuous to the controversial. (28) The ceremonial and the credit-claiming uses are particularly innocuous. With the rise of modern mass media, Presidents have seen particular political benefit in advertising the performance of their routine constitutional duty of signing bills into law. (29) Presidents emphasize their active participation in the lawmaking process--and their pivotal role in bringing policy into being--by calling attention to their decision to approve and sign legislation. (30) Presidents steal at least part of the spotlight from legislators by claiming popular laws as their own. (31) The President's signature not only completes the constitutional procedure for passing legislation but also stamps the President's name on public policy. Congressmen might be able to informally name legislation after themselves, but only the President can create a photo op in the Rose Garden or the East Room.

   More controversial are the efforts to use signing statements to accomplish policy goals, rather than political goals. Those policy goals might be either legislative or constitutional. (32) From a legislative perspective, Presidents have used signing statements to clarify, elaborate, or assert what an Administration views as the significant policy implications of the signed bill. (33) This effort by Presidents to add to the legislative history of a statute by announcing the "presidential intent" (34) is most notable if what Presidents are adding is at odds with what various...