Presidential Signing Statements and Public Administration
KeywordsPresidential Election Executive Order Reagan Administration Obama Administration Constitutional Power
The signing state is any written and/or verbal statement issued by the president when legislation is signed into law. In most cases, the president issues only a written signing statement, but on some occasions, he will also issue a verbal statement to accompany the written statement. As explained below, sometimes the tandem is used to obscure the written statement, which always contains the more controversial provisions.
In the run up to the 2008 presidential election, a seemingly obscure issue was front and center – the use or misuse of the presidential signing statement. Senator John McCain, the presumptive nominee for the Republican Party, and Senators Hillary Clinton and Barack Obama, still battling for the Democratic nomination, were each asked in press interviews whether they would continue to use the signing statement if elected president. The two Democrats, with some equivocation, said they would while Senator McCain was absolute in his answer that the signing statement was an unconstitutional overreach into the prerogatives of the Congress and the courts.
The reason why such an arcane issue reached the level of a presidential election cycle was a direct result of how useful George W. Bush found the device to help him protect presidential power and to advance his own policy preferences. President Bush had used the signing statement to take control over the legislation he signed into law, either by refusing to enforce provisions believed to be unconstitutional or to reinterpret sections so that it better fit within the Bush policy agenda. One of the more controversial uses occurred when President Bush signed legislation prohibiting the use of torture as part of the Global War on Terrorism. Prior to signing the bill, President Bush met with Senator John McCain (R.AZ) in a very high-profile and public meeting to agree that the USA would not use such techniques as “waterboarding” because it was declared a form of torture, and since the USA was part of the international agreement, it was our obligation to respect the rule of law.
All this changed in the dead of night on New Year’s Eve, 2005, when President Bush signed the legislation but then seemed to qualify his agreement with Senator McCain. President Bush wrote he would “construe” the agreement consistent with his constitutional powers. This set off a public firestorm that drew unprecedented attention toward the signing statement, particularly after learning that President Bush used the device to challenge or change hundreds of provisions of laws without anyone paying attention.
George W. Bush certainly was not the first president to use the signing statement, nor is he the last. Though it is not likely that any president will come close to his use of the device, it nonetheless serves an important purpose for the president. For instance, even though Barack Obama issued detailed instructions limiting the use of the signing statement, he nonetheless has found uses for it as well to challenge or control sections of laws that are problematic.
This chapter will be broken into the following sections: the first section will offer a concise history of where/when the signing statement originated as well as how it has evolved; the second section will explain the different uses, illustrated with examples, for the signing statement; and the third section will offer some concluding remarks on the future of the signing statement.
The signing statement is not new. It first appeared in the Andrew Jackson administration, and from that point through the Carter administration, it was used sporadically to protect the president’s constitutional powers or individual liberty.
The Reagan administration gets the credit for turning the signing statement into an important tool or device to help his administration move public opinion, to protect presidential power, and to direct bureaucrats in their implementation of the law. Thus, it is the Reagan administration that is the first to use the signing statement systematically to advance the president’s position in the lawmaking process, giving to the president enhanced powers to control legislation beyond the simple signing or vetoing of a bill.
And even though each subsequent president continued to use the signing statement much like the Reagan administration, it never really attracted much attention by the media or the academic community. And that was by design – the signing statement, like executive orders or proclamations – work best when it goes unnoticed, particularly by the Congress. This gives the president the opportunity to establish a pattern of usage, so if there is an objection made at some future time, the president can always defend it by pointing to all the previous times it was used without objection.
Thus, it was the George W. Bush administration that provided the signing statement with its official public debut by using the device to negate hundreds of provisions of law – so much that by the time President Bush ended his first term in office, he had used the signing statement to challenge more provisions of law than all previous presidents combined!
President Bush, in some instances, used a single signing statement to challenge hundreds of provisions of a single law. As a result, this provoked a number of media stories, which sparked two congressional investigations, a scathing condemnation by the American Bar Association, and in the end the publicity rendered the signing statement as a less than useful device for the next president, Barack Obama, who has issued fewer signing statements of any president from the Reagan administration forward.
Signing Statement: A Typology
The signing statement is so useful because it serves a variety of purposes for the president. First, it can be used as a rhetorical device to generate congressional or public support for a president’s policy or political preferences. The president can identify a couple of key players for their good work in moving the legislation to his desk. On the flip side, the president can use the signing statement to admonish Congress or his opponents in the signing statement in the hope that the media might seize upon the conflict and help move the opposition into the president’s corner.
Or the rhetorical signing statement may be a way to bridge an intractable divide between the White House and the Congress. For instance, President Obama made it a priority when he took office in 2009 to close down the detainee facility at Guantanamo Bay, Cuba (Gitmo) because it represented the negative side of the Global War on Terror, from the image of the detainees in orange jump suits to the fact that a number of detainees had been held since the facility was created in 2002 without ever facing a judge or jury. This contradicted American values, according to President Obama, while also serving as a visible recruiting tool to radical Muslim groups such as ISIS or al-Qaeda.
Despite President Obama’s wishes, the Congress has engaged in a high-stakes battle over the closing of Gitmo, with the Congress placing sections into defense spending bills prohibiting the president from closing the facility, and the president responds with a signing statement arguing that the prohibitions are a violation of presidential powers. And yet, despite the high drama over the issue, the Obama administration, working with the Congress, has managed to drain the facility of all but 91 detainees (out of 800) as of February 23, 2016 (n.a. 2016). Thus keeping the pressure on the Congress by threatening to act unilaterally, the administration has managed to make tremendous progress in fulfilling a campaign promise to close the facility down.
The second use for the presidential signing statement originates from the president’s interpretation of the “Oath” clause of the Constitution. This clause commands the president to “protect and defend” the Constitution as well as the “Office of the President.” The “Oath” clause, combined with Article II’s “Vesting” clause (which bestows to the president all executive powers), gives the president leverage over the constitutionality of the laws he defends or enforces.
To the average person, a president who refuses to enforce or defend a provision or provisions of law that he signed seems like an imperial act. The common refrain to the refusal to enforce is to ask why the president did not veto the legislation if it was constitutionally troublesome. This would be sensible if legislation only contained a single issue to deal with, but unfortunately most legislation sent to the president’s desk contains hundreds of different policy or political issues to which the president can either sign or veto. This creates a lot of opportunity on the part of the Congress for mischief. One well-known area of mischief is in the form of “pork” – legislative riders added to important spending bills that fund the pet projects in the district or state of a member of Congress.
In the same vein, what if Congress added an unconstitutional provision to an important spending bill in order to embarrass the president? In the lead up to the 1996 presidential election, the Republican Congress passed a defense spending bill, over the objections of the secretary of defense, the Joint Chiefs of Staff and President Clinton, that discharged all HIV-positive members of the military. The Clinton administration concluded that the amendment was unconstitutional and refused to enforce it once it went into effect or to defend it if challenged in federal court. The action of the administration convinced the Republicans in Congress to blink, and subsequent legislation was passed which negated the unconstitutional provision.
In this way, the signing statement acts as a placeholder, effectively freezing unconstitutional provisions of law until the Congress and the president can work out their differences while preserving the president’s promise not to knowingly execute or defend law he sincerely believes is unconstitutional.
The final use for the signing statement is of particular interest to those who study public administration. This use allows the president to direct bureaucrats in the administration of law so that the public is technically represented in administrative decision-making by taking away a bureaucrats’ discretion to make decisions and placing that authority in the president, the only nationally elected figure in the USA.
To understand how this works, it is important to look at how the presidency since Ronald Reagan has worked to get control over administrative discretion. The Reagan administration, in a series of executive orders, empowered the Office of Management and Budget (OMB) to monitor how bureaucrats were interpreting the law and, with the help of the Supreme Court (e.g., Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984)), allowed the president to interpret the meaning of the law where the plain meaning is not clear.
The use of the signing statement to interpret unclear provisions of law originates in the president’s Article II responsibility to “take care” that the law is faithfully executed. The president, in this usage, provides clear direction to executive branch administrators in his signing statement as to how the law should be interpreted and enforced and uses the OMB to monitor the actions of the bureaucrats.
For example, in 1986 the Congress sent President Reagan a legislation that reformed the US policy toward immigration. One particular provision attempted to protect American citizens who were fired because of their skin color or race, where an employer could claim that the firing was due to fear that the employee was an illegal alien using false identification. In the House version of the bill, the provision was clear in requiring the employer to document the reason for the firing to insure it was for some reason other than discrimination. The Senate did not include the provision in their version of the bill, so it went to a conference committee to work out the difference in order to send it to President Reagan. When the conference committee completed work, the House provision was added, but it was not clear whether the employer or the employee had to prove intent to discriminate.
When President Reagan signed the bill, he “interpreted” the section to mean that the employee had to prove discriminatory intent, something that the House sponsors had not meant, as well as a burden that would be difficult for any employee to prove.
In a similar action, President George W. Bush used the signing statement to commandeer a provision of the “Sarbanes-Oxley” bill that was designed to clean up corporate malfeasance in the wake of the Enron scandal in 2001. President Bush singled out a provision of the bill that provided broad protections to private sector whistleblowers.
President Bush issued two separate signing statements to the law. The first signing statement was a formal, Rose Garden ceremony, where the president praised Congress in sending a message to Corporate America that impropriety would not stand. In his second, written signing statement, President Bush crippled the whistleblower protection by qualifying it as only applying to active investigations by the House or the Senate, meaning that any whistleblower who went public with his or her information in the absence of a formal congressional investigation could be fired from their job.
The signing statement has been a maligned device that is largely misunderstood by the American public. Some argue that the signing statement is an example of a president who has slipped loose from the Constitution to become a king. Still others make a partisan argument that only focuses on the signing statements issued by the president from the opposite party.
What is clear is that the signing statement is an important part of the president’s impressive arsenal of devices to help him navigate the polarized, gridlocked political system by enabling him to move policy unilaterally when necessary and to protect core constitutional powers.
While the Obama administration has not used the signing statement nearly as much as any of his predecessors (electing to use the executive order instead), nonetheless he has used it when it mattered.
It is important for researchers, journalists, and the public to move past the question of whether the signing statement is or is not constitutional and instead keep the focus on when the president decides to use it and why.
What is important is to understand the underlying dynamics behind the use of any unilateral device by the president, because it is clear that the gridlocked, polarized system has a great deal to do with its use, and given how likely the gridlock and polarization will continue in the future, the use of signing statements will remain an important part of president’s overall administration and legislative strategy.
- n.a. (2016) Plan for Closing Guantanamo Bay detention facility. Department of defense. p 1. http://www.defense.gov/Portals/1/Documents/pubs/GTMO_Closure_Plan_0216.pdf. Accessed 1 Mar 2016
- American Bar Association (2006) Report on the task force on presidential signing statements and the separation of powers doctrine. http://www.americanbar.org/content/dam/aba/publishing/abanews/1273179616signstatereport.authcheckdam.pdf. Accessed 21 Mar 2016
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