On Signing Statements

One of the biggest abuses of Presidential authority by the Bush Administration has been the use and misuse of Presidential Signing Statements in order to create and extend a precedent for the President's capacity to "legislate from White House" -- above and beyond the President's inherent authority to "take Care that the Laws be faithfully executed."1

In a recent online discussion, the following passage was brought up in order to broach -- and presumably rebut -- the topic of the Bush Administration's abuse of signing statements by justifying their use through the explanations provided by the Clinton Administration.

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"These functions [signing statements] include (1) explaining to the public, and particularly to constituencies interested in the bill, what the President believes to be the likely effects of its adoption, (2) directing subordinate officers within the Executive Branch how to interpret or administer the enactment, and (3) informing Congress and the public that the Executive believes that a particular provision would be unconstitutional in certain of its applications, or that it is unconstitutional on its face, and that the provision will not be given effect by the Executive Branch to the extent that such enforcement would create an unconstitutional condition.
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"Clinton did it too" doesn't make it right, however; while there are valid reasons for the inclusion of signing statements and the use of same in the place of a Presidential veto, the current implementation as practiced by the Bush Administration -- and thus setting a precedent for all future Administrations, regardless of party affiliation -- amounts to a frightening dissolution of the checks and balances placed upon the branches of the government by our founding fathers.

Below, I'll provide some additional context pertaining to the excerpt above and follow up with an excerpt from the Georgetown Law Faculty Blog that provides at least four major reasons why the Bush Administration's practice is objectionable.

IANAL: I am not a lawyer, nor do I play one on TV and I did not stay in a Holiday Inn Express last night.

The majority of the following text is an almost-verbatim copy of the response I'd made in a discussion thread on The Civil Discourse Society, a Delphi forum.

The excerpt provided above the fold comes from here, and was issued by the Clinton Administration with regard to the use of Presidential signing statements. It is a statement that, taken by itself, is essentially accurate pertaining to the intent and justification behind the use of signing statements.

That particular excerpt comes from a memorandum by Walter Dellinger, Assistant Attorney General at the time (November 3, 1993), and was sent to Bernard N. Nussbaum, Counsel to the President. It was prefaced by the following:

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Many Presidents have used signing statements to make substantive legal, constitutional, or administrative pronouncements on the bill being signed. Although the recent practice of issuing signing statements to create "legislative history" remains controversial, the other uses of Presidential signing statements generally serve legitimate and defensible purposes.
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Following similar lines of justification, a statement made by Ms. Michelle Broadman, Deputy Assistant Attorney General, Office of Legal Counsel , Department of Justice was presented to United States Senate Committee on the Judiciary on June 27, 2006, further attempting to extend and justify the use of Presidential signing statements by the Bush Administration:

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By our count, President Bush raised this concern approximately 62 times in his 110 constitutional signing statements. President Bush's statements regarding this issue are nearly identical to the statements issued by past Presidents, including Presidents Eisenhower and Clinton. Compare, e.g., Statement on Signing Legislation on Amendments to the Mexico-United States Agreement on the Border Environment Cooperation Commission and the North American Development Bank, 40 Weekly Comp. Pres. Doc. 550, 550-51 (Apr. 5, 2004) (President Bush) ("Sections 2(5) and 2(6) of the Act purport to require the annual report of the Secretary of the Treasury to include a description of discussions between the United States and Mexican governments. In order to avoid intrusion into the President's negotiating authority and ability to maintain the confidentiality of diplomatic negotiations, the executive branch will not interpret this provision to require the disclosure of either the contents of diplomatic communications or specific plans for particular negotiations in the future."), with, e.g., Statement on Signing the National Defense Authorization Act for Fiscal Year 2000, 2 Pub. Papers of William J. Clinton 1685, 1688 (1999) (President Clinton) ("A number of other provisions of this bill raise serious constitutional concerns. Because the President is the Commander in Chief and the Chief Executive under the Constitution, the Congress may not interfere with the President's duty to protect classified and other sensitive national security information or his responsibility to control the disclosure of such information by subordinate officials of the executive branch (sections 1042, 3150, and 3164) . . . . To the extent that these provisions conflict with my constitutional responsibilities in these areas, I will construe them where possible to avoid such conflicts, and where it is impossible to do so, I will treat them as advisory. I hereby direct all executive branch officials to do likewise."); Statement on Signing the National Defense Authorization Act for Fiscal Year 1998, 2 Pub. Papers of William J. Clinton 1611, 1612 (1997) (Nov. 18, 1997) (President Clinton) ("Because of the President's constitutional role, the Congress may not prevent the President from controlling the disclosure of classified and other sensitive information by subordinate officials of the executive branch.").
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Her statement concluded with the following:

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The constitutional signing statements discussed here are a small, but central, sampling of the many statements issued by American Presidents. These statements are an established part of the President's responsibility to "take Care that the Laws be faithfully executed." U.S. Const., art. II, � 3. Members of Congress and the President will occasionally disagree on a constitutional question. This disagreement does not relieve the President of the obligation to interpret and uphold the Constitution, but instead supports the candid public announcement of the President's views.
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There are inherent problems, however, between the concept of "theory" and "practice" with regard to the use and abuse of signing statements -- not only has the practice been extended from the time of the Reagan Administration (and as indicated above, also used and abused to an extent by the Clinton Administration), it has reached near-dizzying heights through the blatant overuse and misuse by the Bush Administration.

In order to avoid having to attempt to retread an already well-documented and well-formed legal opinion, here's a valuable summation from the Georgetown Law Faculty Blog that points out four of the most problematic issues with the manner and method with which the Bush Administration approaches and implements -- and thus abuses -- the inherent purpose of Presidential signing statements:

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First, in this Administration nonenforcement appears to be a strategy of first resort, not last. The guidelines that OLC set forth
during the Clinton Administration (discussed above) place a focus on the Constitution’s structure. Those guidelines make clear that the President is to act in ways that respect the important roles of Congress and the courts in the process of constitutional interpretation and the resolution of constitutional controversy. The frequent and cavalier declarations of constitutional objections by the Bush Administration demonstrate that it pays little or no heed to these fundamental constitutional values.

Second, in many cases this Administration’s
signing statements do not plausibly reflect legislative intent.

More often than not, the Administration has justified such constructions as necessary in order to avoid a serious constitutional question.  But even if the avoidance canon applies to the President’s interpretations just as strongly as it does to the judiciary’s interpretations, it is triggered only where the statute in question is genuinely ambiguous. See, e.g., United States v. Oakland Cannabis Buyers’ Coop.  This Administration has too frequently misused the avoidance canon to distort the meaning of statutory provisions that were not ambiguous—both with respect to provisions President Bush signed into
law and provisions long on the books.  (Concededly, previous
Administrations have also engaged in dubious use of the canon, albeit not with the frequency or audacity of the current Administration.  However, in many (but not all) such cases, private individuals were not affected, and Congress knew
exactly what was going on and had mechanisms to counter the nonenforcement.)

If the President believes that a statute, fairly construed, would be unconstitutional, he should simply say so, and consider whether to enforce it or to take some other action to address his constitutional concern, rather than couching his objection as an implausible form of statutory "construction."

Third, the whole point of such signing
statements—the reason that making them is actually a valuable practice (see above)—is that they make transparent the President’s intent to decline to enforce statutes in the manner contemplated by Congress.  But President Bush’s statements for the most part do not serve this function.  Many of the objections are written in such general and opaque terms, and with resort to vague assertions about an intent to “construe” the provisions in conformity with the Commander-in-Chief Clause, the "unitary executive," etc., that it is
impossible to know just what they mean in terms of how the Administration is implementing the statutes in question. According to Prof. Cooper, in President Bush's first term alone he offered 505 constitutional objections to various statutory provisions, and many of those objections applied to multiple provisions within a particular bill.  This might mean that the Executive is refusing to implement hundreds of statutes enacted since 2001 (and many enacted prior to that date, too), or construing them in an implausible and unexpected way—or, then again, it might not. Congress and the public are offered no clear understanding of the legal theory of unconstitutionality, or of precisely which statutory provisions will not be enforced, under what circumstances, and why.  The statements are, instead, mere placeholders, with respect to a vast number of statutory provisions, signaling that the Administration reserves the right not to enforce numerous unspecified provisions.

Moreover, the President is not telling Congress when he does refuse to enforce (or when he construes the statute in a manner that the legislature could not possibly have contemplated).  A President may seek to enforce his own
conception of the Constitution, even if it is a sharp break with the past.  But when he does so, he is constitutionally obliged to do so in broad daylight, with adequate opportunity for the other branches and the public to understand the legal theory and the practice and to respond accordingly.  Checks and balances can't possibly work if the revolution is occurring in secret, or if the Administration publicly insists that all is business as usual, that all statutes and treaties are being implemented as they always have been, while simultaneously "implementing" such statutes in a manner that comes as a great surprise to Congress and the public. Precisely in order to deal with these problems—to provide Congress the opportunity to evaluate, oversee, and check the President's nonenforcement—federal law already requires that such decisions be disclosed to Congress.  Section 530D(a)(1)(A)(i) of title 28 of the U.S. Code provides that the Attorney General "shall submit to the Congress a report of any instance in which the Attorney General or any officer of the Department of Justice . . . establishes or implements a formal or informal policy to refrain . . . from enforcing, applying, or administering any provision of any Federal statute . . . whose enforcement, application, or administration is within the responsibility of the Attorney General or such officer on the grounds that such provision is unconstitutional." Subsection (e) of that statute extends this reporting obligation to the head of each executive agency or military department that implements such a policy of constitutional noncompliance.  Such a report must be made within 30 days after the policy is implemented, and must "include a complete and detailed statement of the relevant issues and background (including a complete and detailed statement of the reasons for the policy or determination)."  (The statute includes provisions for redaction of classified information in copies of the report distributed outside a congressional committee or agency.)

The Bush Administration, however, considers this reporting requirement itself to be constitutionally dubious, and thus appears to be refusing to enforce it, too. In his 2002 signing statement to the law containing the latest iteration of the provision, the President wrote:

Section 202 of the Act adds a new section 530D to title 28, United States Code, that purports to impose on the executive branch substantial obligations for reporting to the Congress activities of the Department of Justice involving challenges to or nonenforcement of law that conflicts with the Constitution. The executive branch shall construe section 530D of title 28, and related provisions in section 202 of the Act, in a manner consistent with the constitutional authorities of the President to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties. To implement section 202(b)(3) of the Act, the Attorney General, on my behalf, shall advise the heads of executive agencies of the enactment of section 202 and of this direction concerning construction of that section and section 530D of title 28.

This reluctance to let Congress and the public know how the Administration is, or is not, implementing federal law, is regrettable. As we have written elsewhere, transparency of the Executive’s legal judgments "helps to ensure executive branch adherence to the rule of law and guard against excessive claims of executive authority[, and] also promotes confidence in the lawfulness of governmental action."

The final, and most important, problem with the practice in this Administration, as we emphasized above, is not the signing statements themselves, nor the simple fact that the President might be engaged in nonenforcement, but instead the substance of many of the Administration's constitutional objections: e.g., the extremely broad theories of the Commander-in-Chief Clause and the "unitary executive" that underlie many of the signing statements and other distorted statutory constructions. If those constitutional objections were well-taken, and were publicly disclosed and debated, the signing statements themselves would present far fewer problems.  But many of us believe that the Administration is wrong on the merits; and it is that substantive concern, along with the concerns about the lack of transparency and about the use of nonenforcement as a tactic of first resort, that should be at the heart of this debate.
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I thought the Georgetown piece, which also examined and provided a critical examination of the American Bar Association's report on signing statements [PDF], effectively illuminated the problems that we are now facing if this new approach toward signing statements is not curtailed for this and all future Administrations.

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Footnotes
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  1. US Constitution, Article II, section 3:
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    Section 3. He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.
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    Relevant phrasing in bold.

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...just to ensure that we get some additional exposure on an important topic. :)

It's here.

important not to forget the tools through which the checks and balances have been so effectively dismantled.

been planning what they'd do if they ever seized power again since the time of Nixon; now they've had their chance, and are making do as frantically as possible.

The lack of any actual, reasonable challenges -- from ~both~ sides of the aisle -- has been very disheartening.

Why hasn't anyone asked any of the three remaining presidential candidates to say if they will renounce - or continue - the current administration's policies in this regard? It's a much more far-reaching issue even than what happens next in Iraq. I've had letters published in newspapers asking this - and have contacted several on-air radio talk show personalities entreating them to raise this issue. As horrible an abuse to the Constitution as Mr. Bush and his cronies have perpetuated, the damage they've done will be a thousand times worse if they have effectively set a presidential precedent.

It's a clear and simple usurpation of power.