President Obama has recently surprised some by issuing a few signing statements that very closely resemble President Bush’s highly criticized use of this presidential mechanism.  In his second signing statement President Obama objected to several points in a bill. But instead of vetoing it and sending it back to Congress, he signed it and indicated how he intended to interpret the bill.  Because the presidential signing statement caused such a fierce public debate while President Bush was in office, Obama released a memorandum on the subject.  President Obama said that he aims to “promote transparency and accountability…[by ensuring]…that signing statements identify [the President’s] constitutional concerns about a statutory provision ... to make clear the nature and basis of the constitutional objection.”  Senator Arlen Specter (D-PA) has expressed his concern.  He recently told the Wall Street Journal that “we are having a repeat of what Democrats bitterly complained about under President Bush.”

Presidents have used signing statements for years. They are not new.  In fact, it was Andrew Jackson, when he objected to a line item in an 1830 bill -- “An act making appropriations for examinations and surveys, and also for certain works for internal improvement” -- who issued what most experts consider the first signing statement.  In a message to the Congress he objected that “the phraseology of the section which appropriates the sum of $8,000 for the road from Detroit to Chicago may be construed to authorize the application of the appropriation for the continuance of the road beyond the limits of the Territory of Michigan." Therefore, he wrote, "I desire to be understood as having approved this bill with the understanding that the road authorized by this section is not to be extended beyond the limits of the said Territory.” Opposition members of Congress were appalled at Jackson's presumptuousness. They argued that the Founders had not given presidents a line item veto, the very power Jackson now assumed. The veto power at the time was construed narrowly. Presidents until Jackson only vetoed bills on the grounds that they were unconstitutional.

For the most part, however, the history of the signing statement can be broken down into two eras: the pre-Reagan-era and the Reagan-era and after.  Prior to the Reagan administration, signing statements were, according to Christopher Kelley, Visiting Assistant Professor of Political Science at Miami University of Ohio, “little more than an appendage to some bills the president signs into law.”  They were used as “thank yous” and an opportunity to more fully express their thoughts—positively and/or negatively—on new laws.

Under President Reagan, the use of the signing statement changed.  In an attempt to reassert presidential power after the Watergate scandal, President Reagan used signing statements to play a more active role in interpreting statues.  It was a way to, according to Kelley, “protect the executive’s prerogatives.”  President George H.W. Bush’s use was similar.  He even furthered the reach of the signing statement by using it to apply pressure to Congress if there was disagreement over a provision in a bill.

Democrat Bill Clinton continued the practice.   According to some studies, Clinton issued a signing statement for one in four bills signed into law.  In terms of numbers, Clinton’s use was unprecedented.  President Clinton’s Assistant Attorney General, Walter Dellinger, stated that the President was within his authority to declare provisions of a law unconstitutional.  Signing a bill into law while simultaneously declaring that aspects of that bill are unconstitutional is what some historians and theorists find problematic.  It alters the relationship between the three branches of government.

President George W. Bush’s use of the signing statement was highly debated and controversial. President Bush claimed that Congress could not pass a law that undercut the constitutionally granted authority of the President. He also said that he would assert the constitutional right to “supervise the unitary executive branch.” 

Was 9-11 a factor in the expansion of presidential power? According to Kelley and Phillip Cooper, Professor of Public Administration at Portland State University, the answer is no. President Bush issued signing statements on many pieces of legislation unrelated to national security.  Their claim is that his use of the signing statement continued a path toward the implementation of the unitary executive theory—a doctrine that aims to equally position the three branches of government with regard to evaluating, interpreting and enforcing constitutionality.  (Click here to read more about President Bush’s use of signing statements.)

To date, President Obama has issued five signing statements.  The first, which he wrote on February 17, 2009 -- after signing the American Recovery and Reinvestment Act of 2009-- follows in line with the more traditional, celebratory use of the signing statement.  The statement stressed the importance of the Act and how it would “provide a direct fiscal boost to help lift our Nation from the greatest economic crisis in our lifetimes and lay the foundation for further growth.” In this statement, President Obama pointed out how the Act would help save or create as many as four million jobs; how the Act would make significant investment in infrastructure; and how it aimed to create jobs within the private sector.  The statement also stated that “[t]he Federal Government will be held to new standards of transparency and accountability.”  The signing statement was straightforward and not controversial. 

President Obama’s second signing statement, however, included Reagan-era characteristics.  Written on March 11, 2009, while signing the “Omnibus Appropriations Act, 2009” into law, President Obama said that “it is a legitimate constitutional function, and one that promotes the value of transparency, to indicate when a bill that is presented for Presidential signature includes provisions that are subject to well-founded constitutional objections.”  He then listed five areas of the bill that the "Department of Justice has advised … raise constitutional concerns.”  These areas are in Foreign Affairs, where the President states that he “will not treat these provisions as limiting my ability to negotiate and enter into agreements with foreign nations”; United Nations Peacekeeping Missions; Executive Authority to Control Communications with the Congress; Legislative Aggrandizements; and Recommendations Clause Concerns.  President Obama stated that several "provisions of the Act … effectively purport to require me and other executive offices to submit budget requests to the Congress in particular forms.  Because the Constitution gives the President the discretion to recommend only ‘such Measures as he shall judge necessary and expedient’ (article II, section 3 of the Constitution), the specified officers and I shall treat these directions as precatory.” (Precatory: "of, relating to, or expressing a wish or request.") The language in the message caused controversy.  President Obama has been accused of using the signing statement to avoid having to veto the bill.  In addition, critics claimed that it is the job of the President to execute laws, and that treating aspects of the law as “advisory” is a disregard of the binding criteria of a law and the President’s responsibility under the Constitution to enforce the laws passed by Congress. 

In President Obama’s third signing statement, issued on March 30, 2009 in conjunction with the “Omnibus Public Land Management Act of 2009,” the President stated that:

Section 8203 of the Act provides that the Secretary of the Interior shall appoint certain members of the Erie Canalway National Heritage Corridor Commission “based on recommendations from each member of the House of Representatives, the district of which encompass the Corridor.” Because it would be an impermissible restriction on the appointment power to condition the Secretary’s appointments on the recommendations of members of the House, I will construe these provisions to require the Secretary to consider such congressional recommendations, but not to be bound by them in making appointments to the Commission.

Within this statement, the word “construe” is most problematic for critics.  Obama presumes which provisions he will and will not comply with.  Critics argued that if he does not agree with a bill, or believes that elements of a bill are unconstitutional, then he should wield his veto pen. 

President Obama issued his fourth signing statement when approving the “Fraud Enforcement and Recovery Act of 2009” on May 20. In the statement he outlined how the Act will provide “Federal investigators and prosecutors with significant new criminal and civil tools to assist in holding accountable those who have committed financial fraud.”  The President also remarked that as his “Administration communicated to the Congress during the legislative process, the executive branch will construe this subsection of the bill not to abrogate any constitutional privilege.”  President Obama did not agree with a section that “requires every department, agency, bureau, board, commission, office, independent establishment, or instrumentality of the United States to furnish to the Financial Crisis Inquiry Commission any information related to any Commission inquiry.”  In effect, President Obama is saying he may decide on his own authority to withhold information sought by the Commission. In addition, there does not seem to be a record that the Administration communicated any misgivings to Congress about the provision in question while the bill was under consideration.       

President Obama’s fifth signing statement is tied to the creation of the Ronald Reagan Centennial Commission.  This statement was issued on June 2.  The Commission will be composed of the Secretary of the Interior, four individuals to be appointed by the President, and six members of Congress appointed by the congressional leadership.  President Obama wrote that in "accord with President Reagan's Signing Statement made upon signing similar commemorative legislation in 1983, I understand, and my Administration has so advised the Congress, that the members of Congress ‘will be able to participate only in ceremonial or advisory functions of [such a] Commission, and not in matters involving the administration of the act’ in light of the separation of powers and the Appointments and Ineligibility Clauses of the Constitution (Public Papers of the President, Ronald Reagan, Vol. II, 1983, page 1390).”

The President wants to ensure that only presidential appointees can exercise executive power, which is why he noted that their role will be “ceremonial or advisory.”  What is interesting about this statement, according to Kelley, “is that Obama asserted the authority to challenge based on precedent—and a precedent established by Reagan himself,” which was a signing statement establishing the Commission to commemorate the Constitution’s bicentennial.  As Kelley notes, Reagan’s original statement states that “in view of the incompatibility clause of the Constitution, any Member of Congress appointed by me pursuant to section 4(a)(1) of this act may serve only in a ceremonial or advisory capacity.”

It remains to be seen how President Obama will employ signing statements over the course of his presidency.  Senator Arlen Specter has recently said that President Obama is “wrong” if he thinks that signing statements can be constitutionally legitimate and is sponsoring legislation to outlaw them. “In determining the meaning of any Act of Congress,” wrote Specter, “no Federal or State shall rely on or defer to a presidential signing statement as a source of authority.”  So far, they have not.  To date, no court has treated a signing statement as binding. Specter said, “the Constitution is explicit as to how you handle these situations. If the president thinks something is unconstitutional, then he ought to veto it. I think it’s just that plain.”