Bench Memos

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Bradley and Posner on Signing Statements


For the best and most thorough treatment that I’ve seen of presidential signing statements, see this 43-page Chicago Public Law and Legal Theory working paper by Professors Curtis A. Bradley and Eric A. Posner. 


Comparing the substance of the constitutional positions taken in signing statements by President George W. Bush and President Clinton, Bradley and Posner find them “extremely similar”:  “the signing statements do not themselves provide evidence that Bush and Clinton have significantly different views about the scope of executive power.”  (See examples on pages 14-17.) 


Why, then, the much larger number of legal provisions subjected to signing-statement challenges by President Bush?  Bradley and Posner offer this highly plausible speculation:  “perhaps the Bush administration is like a lawyer who writes ‘privileged and confidential attorney work product’ on every [privileged and confidential] document he writes, even when it is extremely unlikely that the document will ever be subject to discovery.”  Yes, indeed, that may well be what has given rise to all the hullabaloo.  


Tags: Whelan


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