ABA Report: History of Signing Statements Shows Bush II Has Gone Further than Predecessors

The Constitution says nothing about the President issuing any statement when he signs a bill presented to him. If he vetoes the bill, Article 1, §7 requires him to tell Congress what his objections are, so that Congress can reconsider the bill and accommodate him or repass it by a two-thirds vote of both Houses in which case it becomes law without his signature.

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 mandated reduction in the size of the army and 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.16

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.17

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.”18

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.19 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 to mold legislation to fit their own constitutional and statutory preferences. 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.”20

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. Roosevelt “place[d] on record my view that this provision is not only unwise and discriminatory, but unconstitutional” and was thus not binding on the Executive or Judicial branches. This signing statement was later cited by the Supreme Court in United States v. Lovett,21 where it held the law unconstitutional. Roosevelt indicated he would enforce the law but that when the employees sued, he would instruct the Attorney General to side with them and attack the statute, which he did. Congress had to appoint a special counsel to defend it, unsuccessfully.22

President Roosevelt also employed the “constitutional avoidance” technique pioneered by President Grant of interpreting a controversial provision so as not to raise constitutional concerns. When he issued a signing statement for the Emergency Price Control Act of 1942, he objected to certain “protectionist measures for farmers,” but continued that “nothing contained therein . . . can be construed as a limitation on existing powers of government agencies such as the Commodity Credit Corporation to make sales of agricultural commodities in the normal conduct of their operations.” Either Congress should remove the provision or he would treat it as a nullity. Congress removed it.23 President Truman followed suit in a signing statement regarding a provision in a 1951 appropriations act, saying: “I do not regard this provision as a directive, which would be unconstitutional, but instead as an authorization . . .”24 And in signing the Portal to Portal Act, President Truman took the then unusual step of defining the term “compensable labor” in a way so as to benefit the interests of organized labor, an interpretation later accepted by the courts.25

Presaging the formulaic signing statements of the current era refusing to follow laws mandating intelligence disclosures, 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.”26

President 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.”27 And prior to the Supreme Court’s 1983 decision in INS v. Chadha,28 invalidating the legislative veto, Presidents Eisenhower, Nixon, Ford and Carter objected to variations of those vetoes in signing statements and said they would not abide by them. Presidents John F. Kennedy and Lyndon Johnson construed such legislative vetoes as “request[s] for information.”29

As a general matter, President Jimmy Carter made greater use than his predecessors of signing statements, refusing, as President Grant had done before him, to follow the mandate of Congress to close certain consular posts and indicating his intent to construe the provision as only “precatory.”30 He also 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.31

2. The Reagan, Bush I and Clinton Years

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.32 President Reagan’s Attorney General Edwin Meese secured an agreement from West Publishing Company to include signing statements along with traditional legislative history in the United States Code Congressional and Administrative News for easy availability by courts and implementing officials.33

President Reagan succeeded in having his signing statements cited in several Supreme Court cases which upheld his Presidential powers against challenges by the Comptroller General in Bowsher v. Synar,34 involving deficit spending limits and in the final denouement of the legislative veto in the Chadha case.35 In his statement accompanying the signing of the Competition in Contracting Act in 1984, he had refused to abide by the provision which allowed the Comptroller General to sequester money in the event of a challenge to a government contract. His nonenforcement was challenged by a losing bidder, and the courts found the Act constitutional. His continued refusal to obey the court order resulted in a judicial tongue lashing and Congressional threats to eliminate funding, whereupon he changed course.36

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. He also reinterpreted the Safe Drinking Water Act so as not to make several of its provisions mandatory.37

President George Herbert Walker Bush (“President Bush I”) overtook President Reagan in the number of signing statement challenges to provisions in laws presented to him—232 in his four years in office compared to 71 in the two-term Reagan Administration.38 A third of President Bush I’s constitutional challenges were in the foreign policy field. An Office of Legal Counsel opinion prepared for the President listed 10 types of legislative encroachments on Presidential prerogatives and urged they be countered in signing statements.39

He responded forcefully to his perception of such threats in laws, both great and small. The Dayton Aviation Heritage and Preservation Act of 1992, for example, directed the Secretary of the Interior to make appointments to a commission which would exercise Executive power though the appointees were not confirmed as Executive branch officers. Appraising this as an affront to Presidential power under the Appointments Clause, President Bush I refused to appoint anyone until Congress changed the law. He acted similarly with respect to nominations under the National and Community Services Act which had designated the Speaker and Senate Majority Leader to make appointments.40

President Bush I advanced the Reagan interpretive agenda further in two instances in which his administration first arranged to have colloquies inserted into the congressional debates and then in signing statements relied on those colloquies to interpret statutory provisions despite stronger legislative evidence in favor of contrary interpretation. The first case involved a foreign affairs appropriations bill in which the Congress had forbidden sale of arms to a foreign government to further a foreign policy objective of the United States which the United States could not advance directly. Stating first that he intended to construe “any constitutionally doubtful provisions in accordance with the requirements of the Constitution,” President Bush I said he would restrict the scope of the ban to the kind of “quid pro quo” exchange discussed in a specific colloquy his administration had arranged with Congressional allies rather than credit the broader range of transactions clearly contemplated by the textual definition which included deals for arms “in exchange for” furthering of a U.S. objective. “My decision to sign this bill,” he said in the statement, “is predicated on these understandings” of the relevant section, referring to the colloquy.41

In the 1991 Civil Rights Act, a piece of legislation President Bush I could not afford politically to veto, Congress said quite clearly that it wished to return to an interpretation of what constituted “disparate impact” for Title VII discrimination purposes that existed prior to the Supreme Court’s cutback in the Ward’s Cove case.42 The President’s signing statement, however, labeled by one commentator as the most controversial signing statement of his term, again relied on a colloquy inserted in the record of the congressional debate and concluded that the Act “codifies” rather than “overrules” Ward’s Cove.43

A look at the Clinton record of the use of the presidential signing statement shows that President Clinton used the constitutional signing statement less in his two terms than did his predecessor in one (105 to 146), but still more than the Reagan administration (105 to 71).44 For the Clinton Administration, “the signing statement was an important cornerstone of presidential power, as outlined by Walter Dellinger in his 1993 OLC memo. It would become particularly important after the 1994 mid-term elections when the Congress became Republican and more polarized.”45

In a 1993 memorandum, the then head of OLC, later acting Solicitor General Walter Dellinger, justified on historical and constitutional bases, a President’s refusal to follow a law that is “unconstitutional” on its face. In a second memorandum in 1994 to White House Counsel Abner Mikva, he said the President had an “enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional power of the Presidency.” But he cautioned:

As a general matter, if the President believes that the Court would sustain a particular provision as constitutional, the President should execute the statute, notwithstanding his own beliefs about the constitutional issue. If, however, the President, exercising his independent judgment, determines both that a provision would violate the Constitution and that it is probable that the Court would agree with him, the President has the authority to decline to execute the statute. [I]n deciding whether to enforce a statute the President should be guided by a careful weighing of the effect of compliance with the provision on the constitutional rights of affected individuals and on the executive branch’s constitutional authority. Also relevant is the likelihood that compliance or noncompliance will permit judicial resolution of the issue.46

Over half of President Clinton’s constitutionally related signing statements were in the realm of foreign policy. In the 1996 National Defense Authorization Act, which followed his prior veto of a provision requiring discharge of HIV positive service members, the same provision resurfaced. This time Clinton declared in the signing statement that the provision was unconstitutional and instructed his Attorney General not to defend the law if it were challenged. However, President Clinton’s advisors made it clear that, if the law were not struck down, the President would have no choice but to enforce it. At a White House briefing on February 9, 1996,47 White House Counsel Jack Quinn explained that “in circumstances where you don't have the benefit of such a prior judicial holding, it's appropriate and necessary to enforce it. . .” Assistant Attorney General Walter Dellinger added:

When the president's obligation to execute laws enacted by Congress is in tension with his responsibility to act in accordance to the Constitution, questions arise that really go to the very heart of the system, and the president can decline to comply with the law, in our view, only where there is a judgment that the Supreme Court has resolved the issue.

Id. Congress subsequently repealed the provision before any court challenge was mounted.48 In another 1995 appropriations act, the President took aim at the Government Printing Office’s attempts to control Executive branch printing through a provision that “no funds appropriated may be expended for procurement of any printing of government publications unless through the GPO.” Clinton instructed his subordinates to disregard the provision and his defiant stance was never put to the test.49 Clinton followed his predecessors in repudiating and refusing to enforce the series of legislative vetoes declared illegal in 1984 by the Supreme Court that Congress nevertheless continued to attach to legislation.50 Clinton issued signing statements objecting to 140 constitutional incursions on his Presidential authority.51

The Bush II Era From the inception of the Republic until 2000, Presidents produced signing statements containing fewer than 600 challenges to the bills they signed. According to the most recent update, in his one-and-a-half terms so far, President George W. Bush (Bush II) has produced more than 800.52

He asserted constitutional objections to over 500 in his first term: 82 of these related to his theory of the “unitary executive,” 77 to the President’s exclusive power over foreign affairs, 48 to his power to withhold information required by Congress to protect national security, 37 to his Commander in Chief powers.53

Whereas President Clinton on occasion asked for memoranda from the Office of Legal Counsel on his authority to challenge or reject controversial provisions in bills presented to him, it is reported that in the Bush II Administration all bills are routed through Vice President Cheney’s office to be searched for perceived threats to the “unitary executive”— the theory that the President has the sole power to control the execution of powers delegated to him in the Constitution and encapsulated in his Commander in Chief powers and in his constitutional mandate to see that “the laws are faithfully executed.”54

Some examples of signing statements in which President Bush has indicated he will not follow the law are: bills banning the use of U.S. troops in combat against rebels in Colombia; bills requiring reports to Congress when money from regular appropriations is diverted to secret operations; two bills forbidding the use in military intelligence of materials “not lawfully collected” in violation of the Fourth Amendment; a post-Abu Ghraib bill mandating new regulations for military prisons in which military lawyers were permitted to advise commanders on the legality of certain kinds of treatment even if the Department of Justice lawyers did not agree; bills requiring the retraining of prison guards in humane treatment under the Geneva Conventions, requiring background checks for civilian contractors in Iraq and banning contractors from performing security, law enforcement, intelligence and criminal justice functions.55

Perhaps the most prominent signing statements which conveyed refusals to carry out laws involved:

! Congressional requirements to report back to Congress on the use of Patriot Act authority to secretly search homes and seize private papers;56
! The McCain amendment forbidding any U.S. officials to use torture or cruel, inhuman, or degrading treatment on prisoners (the President said in his statement that as Commander in Chief he could waive any such requirement if necessary to prevent terrorist attacks);
! A requirement that government scientists transmit their findings to Congress uncensored, along with a guarantee that whistleblower employees at the Department of Energy and the Nuclear Regulatory Commission will not be punished for providing information to Congress about safety issues in the planned nuclear waste repository at Yucca Mountain in 57
President Bush has been particularly adamant about preventing any of his subordinates from reporting directly to Congress even though there is Supreme Court precedent to the effect that Congress may authorize a subordinate official to act directly or to report directly to Congress. When Congress set up an educational research institute to generate independent statistics about student performance, and to publish reports “without the approval” of the Secretary of Education, President Bush asserted in his signing statement that “the Institute director would be subject to the supervision and direction of the Secretary.”

In another bill, Congress said no U.S. official shall prevent the Inspector General for the Coalition Provisional Authority in Iraq from carrying out his investigations and he should report any attempt directly to Congress. President Bush insisted in his signing statement that the Inspector General “refrain” from any investigation involving national security or intelligence already being investigated by the Pentagon and the Inspector General himself could not tell Congress anything without going through the President.58

The Intelligence Authorization Act of 2002 required that the Congress be given regular reports on special matters. The signing statement treated this requirement as “advisory” or “precatory” only stating that the requirement “would be construed in a manner consistent with the President’s constitutional authority 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.”59

This exact phraseology has been repeated in Bush signing statements innumerable times. Scholars have noted that it is a hallmark of the Bush II signing statements that the objections are ritualistic, mechanical and generally carry no citation of authority or detailed explanation.60 “These boilerplate objections [are] placed over and over again in signing statements.”61 A frustrated Congress finally enacted a law requiring the Attorney General to submit to Congress a report of any instance in which that official or any officer of the Department of Justice established or pursued a policy of refraining from enforcing any provision of any federal statute, but this too was subjected to a ritual signing statement insisting on the President’s authority to withhold information whenever he deemed it necessary.62

Even action deadlines set in the National Homeland Security Act were rejected as contravening the unitary executive function.63 The Intelligence Authorization Act of 2003 setting up the 9/11 Commission provoked the same signing statement retaining the President’s power to withhold information — a claim which later became a major bone of contention between the White House and the Commission. A December 2004 intelligence bill required reports on the use of national security wiretaps on U.S. soil as well as reports on civil liberties, security clearances, border security and counter narcotics efforts. All were subjected to the same treatment by signing statement.64 Even the Homeland Security Act requirements for reports to Congress about airport screening chemical plant vulnerabilities and visa services suffered a similar fate.65

President Bush’s signing statements have consistently refused to honor Congressional attempts to impose affirmative action or diversity requirements on federal hiring. Fifteen times the Bush signing statements have objected to such provisions, proclaiming that they would be construed “in a manner consistent with the Constitution’s guarantee of equal protection.” This included directions by Congress to recruit and train women and minorities in the intelligence agencies and promote diversity in the Export-Import bank operations.66

One learned commentator sums up the Bush II use of signing statements as follows: “When in doubt challenge the legislative process whether there is a serious issue or not.” He labels the Bush record on signing statements as “an audacious claim to constitutional authority; the scope of the claims and the sweeping formulae used to present them are little short of breathtaking.” They are “dramatic declaratory judgments holding acts of Congress unconstitutional and purporting to interpret not only Article II Presidential powers but those of the legislators under Article I.”67