Presidential signing statements and executive power.

• Author: Bradley, Curtis A.

A recent debate about the Bush administration's use of presidential signing statements has raised questions about their function, legality, and value. We argue that presidential signing statements are legal and that they provide a useful way for the president to disclose his views about the meaning and constitutionality of legislation. In addition, basic tenets of positive political theory suggest that signing statements do not undermine the separation of powers or the legislative process and that, under certain circumstances, they can provide relevant evidence of statutory meaning. Although President Bush has raised many more constitutional challenges within his signing, statements than prior presidents have, at least on their face these challenges are similar to challenges made by other recent presidents, such as President Clinton. Whether Bush's views of executive power are significantly different from Clinton's, and if so, whether they are inferior, remain open questions, but these issues are independent of whether signing statements are lawful.

1. INTRODUCTION

   Presidential signing statements are short documents that presidents often issue when they sign a bill. They first appeared about two centuries ago, and they have been used routinely since the New Deal. Presidents use signing statements to describe a bill in general terms; to explain its purpose; to praise the bill's sponsors or supporters; to criticize Congress for going too far or not far enough in addressing the problem the bill is supposed to solve; to advance particular interpretations of specific provisions of the bill; to explain how officials in the executive branch will implement the bill; to explain how the bill will interact with existing statutes; and to remind Congress of the president's constitutional powers. A brief controversy about the Reagan administration's use of signing statements to supplement legislative history flared up in the mid-1980s but had no lasting effect. (1) Hundreds of signing statements have been issued since then but until recently no one paid much attention to them. All this changed about a year ago, and suddenly the signing statement, as an institution, has become a topic of heated political debate.

   In December 2005, President Bush signed into law the Detainee Treatment Act, which among other things prohibits the "cruel, inhuman, or degrading treatment or punishment" of anyone in U.S. custody. In a signing statement, Bush stated that he would construe the prohibition "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," suggesting to some people that he might not comply with the prohibition. (2) In March 2006, President Bush issued a signing statement for the reauthorization of the Patriot Act, in which he asserted that he had the authority to ignore certain reporting requirements. (3) Both of these events caught the attention of the media. Also, in January 2006, during Justice Samuel Alito's confirmation hearings, it was revealed that, as a Justice Department lawyer in the Reagan administration, Alito had drafted a memo considering how to implement a proposal to use signing statements more frequently to address questions of statutory interpretation. (4) Alito's critics argued that the memo showed that, as a Supreme Court justice, he would be too friendly to the executive branch.

   The next step was to link together what might have remained episodic controversies, and connect them to the widely credited claim that the Bush administration had taken extreme positions on executive authority in its legal defense of its war-on-terror policies. Several members of the media made this connection early on, (5) but the spark was applied to the fuel on April 30, 2006, when a Boston Globe article asserted that Bush had "quietly claimed the authority to disregard more than 750 laws enacted since he took office," far more than any other president. (6) This article provoked further controversy, including increasingly strident condemnations of the signing statement in the media. (7) In early June, the American Bar Association appointed a task force "to examine constitutional and legal issues raised by the practice of presidents of the United States of attaching legal interpretations to federal legislation they sign." (8) On June 27, the Senate held hearings on the signing statement, during which Republican Arlen Specter expressed concerns about Bush's signing statements, and Democrat Patrick Leahy called them a "grave threat to our constitutional system of checks and balances." (9) Academics have also leapt into the fray. (10) And in July 2006, the ABA task force issued a statement "oppos[ing] as contrary to the rule of law and our constitutional system of separation of powers, a President's issuance of signing statements to claim the authority or state the intention to disregard or decline to enforce all or part of a law he has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress." (11)

   The attack on the institution of signing statements is puzzling. Signing statements provide public information about a president's views of a statute and thus would seem to promote dialogue and accountability. Furthermore, courts pay little attention to signing statements; as a result, it is not clear how they can increase the president's authority vis-a-vis Congress. Some critics have pointed out that signing statements are sometimes instructions to subordinates, and so an aggressive signing statement could, in theory, direct officials in the executive branch, including prosecutors and agency personnel, not to enforce statutes on the basis of dubious constitutional theories. (12) But it is already widely recognized that the president has considerable authority to allocate enforcement resources by giving priority to some statutes and not to others, and to order his agents to enforce statutes according to his interpretations of them. He certainly does not need a signing statement to do this; he could just write a memorandum to his subordinates. If his subordinates fail to enforce the law properly, they might be compelled to act by courts, or Congress might retaliate; whether the failure was the result of a signing statement or some other order or document is immaterial.

   All of this suggests that the real concern is not with the institution of signing statements but with the Bush administration's underlying views of executive power. Unfortunately, the media and even much of the academic work on signing statements ignore this distinction, and instead imply that the signing statement is intrinsically suspect. The ABA task force report, for example, offers itself as a critique of the signing statement but is really an argument that the president has an obligation to enforce all statutes that are enacted--an entirely different argument which, incidentally, is much more complex than the task force's two-page analysis suggests. (13) A possible reason for this state of affairs is that the Bush administration's constitutional claims are extremely hard to evaluate, as a matter of political and constitutional theory, so it is tempting to use the signing statement as a kind of proxy for the Bush administration's underlying constitutional claims. The number of challenges in the signing statements is taken as a quantitative index of the Bush administration's excesses, with the extreme nature of a few of the signing statements used to bolster this claim. In a now forgotten episode of the Clinton administration, Republican critics similarly complained that Clinton issued too many executive orders and directives to agencies, and used them to circumvent Congress's powers. (14) The problem with this argument is the same as the problem with the argument against signing statements: the relevant question is not how many documents are issued, but the content of the documents, which is much harder to criticize and evaluate than the number.

   In this article, we try to clear up some of the controversy over signing statements in general and the Bush administration's use of them in particular. In doing so, we make two principal contributions to the debate. First, we present a more nuanced empirical assessment of the Bush administration's use of signing statements, focusing in particular on a quantitative and qualitative comparison of the signing statement practices of President Bush and President Clinton. Second, we use positive political theory--the most sophisticated work on legislative institutions and statutory interpretation--to assess the institutional implications of signing statements.

   Part II briefly describes the history of signing statements and considers in some detail the Bush administration's practice. Although President Bush has not issued an unusual number of signing statements, he has challenged an unusually high number of statutory provisions within his statements. Critics contend that this behavior shows that the Bush administration has significantly broader views of executive power than prior presidents. While this contention might be true, the text of the signing statements do not by themselves provide compelling support for it. For the most part, the claims made in President Bush's signing statements--including claims relating to the "unitary executive"--are similar to the claims made by other recent presidents, such as President Clinton. In addition, there are other plausible explanations for the Bush administration's high number of challenges.

   In Part III, we reject the legal criticisms of the signing statement that have been advanced by a few scholars, politicians, and journalists. This is mainly a stage-setting exercise because it turns out that the most plausible critiques of the signing statement are not formalistic legal arguments...