Presidential signing statements: a new perspective.

• Author: Yoo, Christopher S.
• Position: Symposium: The Bounds of Executive Discretion in the Regulatory State

INTRODUCTION I. A BRIEF HISTORY OF SIGNING STATEMENTS A. Presidential Practices B. Judicial Recognition of Signing Statements II. CONSTITUTIONAL SIGNING STATEMENTS A. The Propriety of Executive Assessments of the Constitutionality of Statutes 1. Textual Foundations and the Logic of Marbury 2. The Tradition of Three-Branch Interpretation/Departmentalism B. Accepted Forms of Executive Statutory Interpretation in Light of Constitutional Concerns 1. Constitutional Avoidance 2. Refusal to Defend the Constitutionality of a Statute 3. Refusal to Enforce a Statute on Constitutional Grounds C. Constitutional Signing Statements as Form, Not Function III. INTERPRETIVE SIGNING STATEMENTS AND THE EQUAL DIGNITY PRINCIPLE A. Doctrinal Foundations of the Equal Dignity Principle 1. INS v. Chadha and the Legislative Veto 2. Clinton v. City of New York and the Line-Item Veto 3. The Enrolled Bill Doctrine B. The Implications of the Equal Dignity Principle C. The Inevitability of Executive Statutory Interpretation D. Legislative Power Essentialism vs. the Explicit Recognition of the President's Role in the Legislative Process IV. POLICY ARGUMENTS IN FAVOR OF SIGNING STATEMENTS A. Presidents' Preeminent Role in the Modern Lawmaking Process B. Different Constituencies/Institutional Considerations C. Informational Advantages D. The Limitations of Plural Bodies in Enacting Major Reforms E. Conservation of Resources CONCLUSION INTRODUCTION

During the summer of 2006, a newspaper article in the Boston Globe precipitated a major debate over President George W. Bush's use of signing statements to register his objections to statutory provisions he was signing into law. (1) The ensuing controversy prompted hearings before the Senate Judiciary Committee, (2) the appointment of an American Bar Association (ABA) Special Task Force, (3) the ABA's adoption of a recommendation opposing the use of signing statements to disregard any laws, (4) and a new wave of scholarly commentary. (5)

This allegedly new form of presidential discretion was regarded by many observers as effectively giving Presidents the unilateral power to invalidate statutory provisions that they dislike.6 Interestingly, the conclusion of the Bush Administration did not end the controversy. Despite Barack Obama's denunciation of the practice as a Senator and as a candidate for President, (7) his continued use of signing statements has drawn its share of criticism, (8) including by the reporter who leveled the original complaint at President Bush. (9) Although Obama has issued fewer signing statements, (10) he has used them in a manner quite similar to that of the previous Administration, (11) and his less frequent use of them does not undercut his support for them in principle. (12)

This Article offers a new perspective on Presidents' use of signing statements. Following the dichotomy reflected in the literature, I will analyze signing statements raising constitutional objections and those offering interpretive guidance for ambiguous provisions separately. (13) With respect to constitutional interpretation of statutes by the executive branch, Presidents have long asserted the authority and obligation to consider constitutionality when executing statutes. (14) The widespread acceptance of the President's power to construe statutes to avoid constitutional problems and to refuse to defend the constitutionality of or to enforce statutes in appropriate cases confirms the propriety of this conclusion. (15) If these fairly uncontroversial forms of executive review are permissible, the arguments against signing statements amount to nothing more than objections to the form in which constitutional review is exercised. Indeed, when the objections are constitutional in nature, the signing statement does little work itself, as it is the Constitution itself rather than the signing statement that invalidates the statute, and there are clear benefits to announcing the constitutional interpretation that will be applied to the statute at the time of enactment.

With respect to interpretive signing statements, I argue that the Supreme Court's precedents regarding the process for enacting statutes laid out in Article I, Section 7, give rise to an equal dignity principle that regards the President as an essential participant in the legislative process whose views as to the proper interpretation of a statute merit the same treatment as the views of congressional committees or individual legislators. This principle is agnostic about the debate over the propriety of considering legislative history when construing statutes. It simply argues that both presidential and congressional legislative history be treated the same. Thus, one can ignore both forms of legislative history without violating the equal dignity principle. Conversely, courts that choose to give interpretive weight to legislative history generated by congressional deliberations should give the same weight to signing statements.

The practice of relying on signing statements as guides to interpret statutes also draws support from a number of policy considerations. These include the key role that Presidents play in advancing major legislation, the different institutional capabilities and informational advantages of the executive branch, as well as the need to conserve enforcement resources.

The Article proceeds as follows: Part I offers a brief review of the history of signing statements. Part II examines the Supreme Court's treatment of signing statements as legislative history. Part III discusses the institutional considerations that provide normative support for giving weight to signing statements. Part IV reviews the policy arguments that support giving signing statements interpretive weight.

1. A BRIEF HISTORY OF SIGNING STATEMENTS

   Despite the intensity of the attention that signing statements have generated recently, signing statements are in fact an old institution. Prior scholars have already traced the history of signing statements, (16) so I will only sketch the highlights here.

   1. Presidential Practices

      Most commentators credit James Monroe with issuing the first signing statement when he objected to a law directing how he should appoint military officials. (17) A more prominent early example is Andrew Jackson's objection to a provision in an 1830 appropriations bill stating that he would not honor Congress's desire that the road in the Michigan Territory extend all the way to Chicago. (18) John Tyler issued a signing statement indicating his disapproval of certain provisions in a political apportionment bill. (19) This provoked a rebuke from the Speaker of the House, John Quincy Adams, who advised that the extraneous document should be ignored as "a defacement of the public records and archives." (20)

      The next round of prominent signing statements arose during the Civil War and Reconstruction. (21) For example, Andrew Johnson issued a signing statement objecting to a statute that prevented him from removing Ulysses Grant as General of the Army, required that Grant's headquarters remain in Washington, D.C., and required that all orders be issued through Grant. (22) When Grant became President, he also issued signing statements declaring that he would not use federal appropriations to improve rivers and harbors that were purely local, not national, and objecting to an appropriations rider purporting to forbid him from closing certain consulates. (23)

      Presidents have used signing statements more frequently during the modern era. For example, Gerald Ford and Jimmy Carter routinely issued signing statements protesting the use of legislative vetoes (24) and other infringements on the President's power. (25) Although some commentators regard Ronald Reagan as having escalated the use of signing statements, he in fact issued fewer signing statements than either Lyndon Johnson or Bill Clinton. (26) George W. Bush is similarly criticized for escalating the use of signing statements; however, a closer inspection reveals that he issued fewer signing statements than his near predecessors. (27) Although he did issue a higher number of signing statements that raised constitutional challenges to statutory provisions, commentators have concluded that the frequency with which he issued such statements was "still not outside the historical norm." (28)

      In any event, modern complaints about the frequency with which recent Presidents have used signing statements are reminiscent of criticisms leveled at John Tyler for using the veto power more aggressively than had his predecessors. (29) The conventional wisdom is that even if more frequent use of the veto is important politically, as a matter of constitutional law, so long as the exercise of the veto power is proper, it remains unproblematic no matter how many times it is exercised. (30) So too with signing statements. (31) Conversely, if the use of signing statements is unconstitutional, the practice would be problematic even if exercised only once. (32) Thus, the fact that President Obama has employed signing statements more sparingly than preceding Administrations does not necessarily render his use of the practice any less problematic.

      It also bears mentioning that the frequency with which Presidents issue signing statements is determined in part by Congress. For example, a Congress that decides to include a large number of legislative vetoes in the legislation it passes may engender a large number of signing statements in response. In this situation, however, Congress would be the institution responsible for the increase in the use of signing statements, not the President.

   2. Judicial Recognition of Signing Statements

      Since 1899, the Supreme Court of the United States has recognized signing statements as a proper means for the President to "inform Congress by message of his approval of bills, so that the fact may be recorded." (33) But, in La Abra Silver Mining Co. v. Unites States, the...