Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
By Justin Yang
Justin Yang is a junior at the University of Pennsylvania studying Politics, Philosophy, and Economics.
The President of the United States effectively has one formal legislative power—he can sign or veto any bill passed by Congress. This power fits within the general scheme of the separation of powers, where the President can check Congress’ legislative actions. Of course, as time has passed, the President has gained more powers that resemble lawmaking, from heading administrative agencies that introduce regulations to issuing executive orders. Another practice that arguably is legislative is the President’s ability to attach signing statements to bills he has approved. These signing statements are written pronouncements that communicate the President’s thoughts on a bill, ranging from commenting on a bill’s effectiveness to pointing out perceived constitutional deficiencies and explaining how he will interpret and execute the law. This raises questions on whether the President has overstepped his powers and whether signing statements are unconstitutional.
Historically, signing statements aren’t new—James Monroe was the first to write one.  However, the number of signing statements dramatically increased after Ronald Reagan took office; from James Monroe to Jimmy Carter, only about a dozen signing statements were issued. Under President Reagan, the number jumped into the hundreds.  Many of these signing statements have attracted great controversy, including George W. Bush’s signing statement to the Detainee Treatment Act of 2005. That act sought to prohibit “cruel, inhuman, or degrading treatment or punishment” of prisoners of the United States, including those at Guantanamo Bay, and required that military interrogations must be performed according to the U.S. Army Field Manual.  However, although Bush signed the bill into law, he provided a signing statement that read in part:
The executive branch shall construe Title X in Division A of the Act, relating to detainees, 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, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks. 
Bush is claiming that as the unitary head of the executive branch, and as the Commander in Chief vested with sole authority over the military, the power to regulate detainee treatment is ultimately within executive power and outside the scope of congressional legislation, justifying his selective enforcement of the law. Still, many saw this as an announcement that the President would not obey the law he had just signed and that he would continue a policy of “enhanced interrogation” against Guantanamo detainees despite the fact the law seemingly prohibits it.  More importantly, since signing statements affect how a law is executed, some see them as an egregious form of executive overreach.
Most critics—such as a task force appointed by the American Bar Association—compare signing statements with line-item vetoes, which were ruled unconstitutional in Clinton v. City of New York. The line-item veto was a variation of the Presidential veto that allowed President Clinton to strike out specific lines and portions of a bill without vetoing the entire bill, and the Supreme Court ruled that such a practice violated the Presentment Clause of the Constitution. There is a specific process of lawmaking detailed in the Constitution—both chambers of Congress must pass an identical bill, and that bill as written by Congress is presented to the President for approval or disapproval—and if the President is allowed to unilaterally rewrite the bill, then he has violated that process.  Signing statements are similar in this regard—they announce the intention of the President to refuse to enforce part of or all of a bill he has signed or to interpret the law contrary to the clear intent of Congress. 
In fact, it can be argued if a President believes that the law is inappropriate or unconstitutional in any way, he can and should veto it—that is the constitutionally prescribed method for a President to express his disapproval of a law. If he objects to a law, signs it anyway, but then issues a signing statement that fundamentally changes the character of the law, then the President has undermined the separation of powers by depriving Congress the opportunity to change the policy or override a veto. This shuts off policy debate and cooperation between the two branches of government.  In addition, the President has constitutional duties that might contradict the use of signing statements. Once he has signed a bill into the law, the President has the duty to “take care that the laws be faithfully executed,” rather than selectively enforce parts of the law. The President also has the duty to “preserve, protect and defend” the Constitution, so if he believes a law is partially or entirely unconstitutional or otherwise unwise, rather than sign it into law but execute it selectively, he has the duty to veto it.
Of course, many others contend that signing statements are not constitutionally problematic. For instance, signing statements have no force of law—they are simply declarations of how the President is using the executive power the Constitution has vested in him. In fact, a federal district court ruled in DaCosta v. Nixon that no executive statement, even by the President, “denying efficacy to the legislation could have either validity or effect.”  In this way, signing statements differ from line-item vetoes, which do have the force of law and are more plausibly an exercise of legislative power by the executive. In addition, the Supreme Court has granted executive agencies deference to interpret relevant laws in Chevron v. Natural Resources Defense Council.  While such a deference does not apply to the President, it is not unreasonable to extend it to include him, since all executive agencies are offshoots of the President’s executive power. When the President executes a law, he has some latitude in how he chooses to do so, and signing statements are simply announcements of that fact. If his choices in how to execute a law do indeed violate the law or the Constitution, then it is those choices rather than the signing statement itself that is illegal. To prohibit signing statements would just reduce transparency in how the country’s laws will be executed.
Another argument in favor of signing statements can be seen a memo written by President Clinton’s Assistant Attorney General, Walter Dellinger. In it, he argues that the President has the constitutional duty to uphold the laws, the Constitution above all else, and should make active efforts to inform Congress of any constitutional flaws in their bills.  However, the President must show deference to Congress as a co-equal branch of government and assume the bills it passes are constitutional and make attempts to construe them as such.  The President may also decline to enforce certain laws if he believes the Supreme Court will rule in his favor, giving the Court a chance to review the law.  In addition, if a law threatens the President’s constitutional powers, he has the obligation to defend his office and decline to enforce the law until judicial resolution—this may be the rationale Bush is giving to justify his selective enforcement of the Detainee Treatment Act.  Opponents of signing statements may still argue that the President still has the veto pen if he faces these problems, and that there is no advantage to subjecting a law to judicial review over re-submitting it to Congress, but there may be one final consideration for why a President may sign bills they believe are unconstitutional: political and administrative expediency. For example, in 1943 in a signing statement, President Roosevelt indicated that Section 304 of the Urgent Deficiency Appropriations Act of 1943 could be unconstitutional. However, he decided not to veto the bill in order to "avoid delaying our conduct of [World War II]."  Clearly, national security could be used as a justification for signing problematic bills into law without waiting for further congressional amendment or judicial review.
The Supreme Court has made no decision regarding the constitutionality of signing statements, and they remain in use today. It is not unreasonable to expect that a signing statement in the future will be controversial again, so it seems imperative that their constitutionality be clarified as soon as possible, either by a court case or by congressional statute, so that faith in the system of separation of powers will be maintained.
 Munson, Holly. “What’s a presidential signing statement?” National Constitution Center, January 10, 2012. Accessed March 30, 2018. https://constitutioncenter.org/blog/whats-a-presidential-signing-statement
 “Detainee Treatment Act of 2005.” Office of the Director of National Intelligence. Accessed March 30, 2018. https://www.dni.gov/index.php/ic-legal-reference-book/detainee-treatment-act-of-2005
 “President's Statement on Signing of H.R. 2863, the ‘Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006’” The White House, December 30, 2005. Accessed March 30, 2018.
 Savage, Charlie. “Bush could bypass new torture ban.” Boston Globe, January 4, 2006. Accessed March 30, 2018. http://archive.boston.com/news/nation/articles/2006/01/04/bush_could_bypass_new_torture_ban/
 Clinton v. City of New York, 524 U.S. 417 (1998).
 Sonnett, Neal R. “The ABA Task Force on Presidential Signing Statements and the Separation of Powers Doctrine Report.” American Bar Association, August 2006. Accessed March 30, 2018. https://www.americanbar.org/content/dam/aba/publishing/abanews/1273179616signstatereport.authcheckdam.pdf
 DaCosta v. Nixon, 55 F.R.D. 145, 146 (E.D.N.Y. 1972)
 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)
 Dellinger, Walter. “Presidential Authority to Decline to Execute Unconstitutional Statutes.” United States Department of Justice, November 2, 1994. Accessed April 9, 2018. https://www.justice.gov/sites/default/files/olc/opinions/1994/11/31/op-olc-v018-p0199_0.pdf
 “Presidential Signing Statements.” Library of Congress, June 9, 2015. Accessed April 9, 2018. https://www.loc.gov/law/help/statements.php
Photo Credit: Flickr user Nancy Pelosi
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