The presidential pen and signing statements: History makes a statement





President Bush may have issued only one veto, but he has added more than 750 "signing statements" to new laws on issues such as detainee torture, the USA Patriot Act and whistle-blower protections. Last week, a task force from the American Bar Association came out against presidents using such statements to show their intention "to disregard or decline to enforce all or part of a law." The ABA also detailed how Bush is far from the first president to add his own interpretation to congressional legislation.

The Constitution says nothing about the President issuing any statement when he signs a bill presented to him. ... Nonetheless Presidents have issued statements elaborating on their views of the laws they sign since the time of President James Monroe who, a month after he signed a bill into law which ... prescribed the method by which the President should select military officers, issued a statement that the President, not Congress, bore the constitutional responsibility for appointing military officers.

In 1830, President Andrew Jackson signed an appropriations bill providing for a road from Detroit to Chicago he objected to, but insisted in his signing statement that the road involved was not to extend beyond Michigan. The House of Representatives vigorously objected to his limitation but in fact acceded to it.

In 1840, President John Tyler issued a signing statement disagreeing quite respectfully with certain provisions in a bill dealing with apportionment of congressional districts. As spokesman for the House, John Quincy Adams wondered why such an "extraneous document" was issued at all and advised that the signing statement should "be regarded in no other light than a defacement of the public records and archives."

No signing statements announcing a President's intent not to comply with a law were issued until 70 years after the Constitution was ratified. Although after the Jackson and Tyler contretemps Presidents seemed to shy away from statements denouncing provisions in bills they signed, the practice of identifying their differences with the Congress continued throughout the 19th century.

There is, additionally, at least one example of a 19th century signing statement by President Ulysses S. Grant that "interpreted" a bill in a way that would overcome the Presidential constitutional concern, a technique that would frequently be employed by later 20th century Presidents. ... An appropriation bill had prescribed the closing of certain consular and diplomatic offices. President Grant thought it "an invasion of the constitutional prerogatives and duty of the Executive" and said he would accordingly construe it as intending merely "to fix a time at which the compensation of certain diplomatic and consular officers shall cease and not to invade the constitutional rights of the Executive."

This pattern continued basically into the first 80 years of the 20th century. President Theodore Roosevelt proclaimed his intention in 1909 to ignore a restriction on his power to establish volunteer commissions in a signing statement; President Woodrow Wilson advised in a signing statement that executing a particular provision would result in violation of 32 treaties which he refused to do; and in 1943 President Franklin Roosevelt vehemently lashed back at a rider in an appropriation bill which barred compensation to three government employees deemed "subversive" by the Congress. ...

Presaging the formulaic signing statements of the current era ... President Dwight Eisenhower in 1959 signed the Mutual Security Act, but stated, "I have signed this bill on the express promise that the three amendments relating to disclosure are not intended to alter and cannot alter the Constitutional duty and power of the Executive with respect to the disclosure of information, documents and other materials. Indeed any other construction of these amendments would raise grave constitutional questions under the historic Separation of Powers Doctrine."

President (Richard M.) Nixon in turn objected to a 1971 military authorization bill which set a date for withdrawal of U.S. forces from Indochina as being "without binding force or effect." ...

As a general matter, President Jimmy Carter made greater use than his predecessors of signing statements. ... (He) issued a statement accompanying his signing of a 1978 appropriations act which contained a provision forbidding use of funds to implement his amnesty program for Vietnam draft resisters; he maintained that the provision was a bill of attainder, denied due process and interfered with the President's constitutional pardoning power. He then proceeded in defiance of the law to use funds to process reentry visas for the Vietnam resisters and when critics sued the government to enforce the law his administration successfully defended his actions on the ground that the challengers had no standing to sue.

The Administration of President Ronald Reagan is credited by many commentators as a period in which the use of signing statements escalated both quantitatively and qualitatively. The first observation is only moderately accurate; the second is quite true. For the first time, signing statements were viewed as a strategic weapon in a campaign to influence the way legislation was interpreted by the courts and Executive agencies as well as their more traditional use to preserve Presidential prerogatives. ...

Two of the most aggressive uses of the signing statement by President Reagan to control statutory implementation occurred in the Immigration Reform and Control Act of 1986 in which Congress legislated that a "brief, casual and imminent absence" of a deportable alien from the United States would not terminate the required "continuous physical presence" required for an alien's eligibility for legalized status. President Reagan announced in the signing statement, however, that an alien would be required to apply to the INS before any such brief or casual absence, a requirement totally absent from the bill.



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