Bench Memos

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Re: More ABA Partisanship


All the hue and cry about the use of presidential signing statements to highlight constitutional problems in legislation might lead an uninformed observer to believe that President Bush invented that use.  In fact, as the head of the Office of Legal Counsel in President Clinton’s Justice Department, liberal law professor Walter Dellinger, explained in this 1993 OLC opinion, Presidents have long used “signing statements to raise and address the legal or constitutional questions they believed were presented by the legislation they were signing. Examples of signing statements of this kind can be found as early as the Jackson and Tyler Administrations, and later Presidents, including Lincoln, Andrew Johnson, Theodore Roosevelt, Wilson, Franklin Roosevelt, Truman, Eisenhower, Lyndon Johnson, Nixon, Ford and Carter, also engaged in the practice.”  As Dellinger opined more fully:

[T]he President may use a signing statement to announce that, although the legislation is constitutional on its face, it would be unconstitutional in various applications, and that in such applications he will refuse to execute it. Such a Presidential statement could be analogized to a Supreme Court opinion that upheld legislation against a facial constitutional challenge, but warned at the same time that certain applications of the act would be unconstitutional. Relatedly, a signing statement may put forward a “saving” construction of the bill, explaining that the President will construe it in a certain manner in order to avoid constitutional difficulties. This, too, is analogous to the Supreme Court’s practice of construing statutes, if possible, to avoid holding them unconstitutional, or even to avoid deciding difficult constitutional questions.

More boldly still, the President may declare in a signing statement that a provision of the bill before him is flatly unconstitutional, and that he will refuse to enforce it. This species of statement merits separate discussion.

In each of the last three Administrations, the Department of Justice has advised the President that the Constitution provides him with the authority to decline to enforce a clearly unconstitutional law. This advice is, we believe, consistent with the views of the Framers….

If the President may properly decline to enforce a law, at least when it unconstitutionally encroaches on his powers, then it arguably follows that he may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing. If so, then a signing statement that challenges what the President determines to be an unconstitutional encroachment on his power, or that announces the President’s unwillingness to enforce (or willingness to litigate) such a provision, can be a valid and reasonable exercise of Presidential authority….

The contrary view — that it is the President’s constitutional duty not to sign legislation that he believes is unconstitutional — has been advanced on occasion. … In light of our constitutional history, we do not believe that the President is under any duty to veto legislation containing a constitutionally infirm provision, although of course it is entirely appropriate for the President to do so.

(Internal citations and footnotes omitted.)


An informed reader also disputes the contention that President Bush has overused presidential signing statements: 

In recent presidencies, the use of the constitutional signing statement has become more common. While the task of counting signing statements is inexact because of difficulties in characterizing some statements, both President George H.W. Bush and President Clinton issued constitutional signing statements with respect to similar numbers of laws. President Clinton issued constitutional signing statements with respect to 80 laws, and President Bush has issued such statements with respect to 104 laws as of January of this year.  The Boston Globe’s Charles Savage has consistently misstated the number of signing statements issued by President Bush — Savage says the President has “reserv[ed] the right to ignore more than 750 laws” — by counting multiple provisions within laws as if each constituted a separate signing statement. 


Most of President Bush’s constitutional signing statements have sought to preserve three specific constitutional provisions that are, unfortunately, increasingly overlooked in the legislative process: the Recommendations Clause (Art. II, § 3, cl. 1: prescribing that the President “shall from time to time . . . recommend to [Congress’s] Consideration such Measures as he shall judge necessary and expedient”); the Presentment Clauses (Art. I, § 7, requiring that bills and resolutions pass both Houses before being presented to the President); and the Appointments Clause (Art. II, § 2, providing that the President shall appoint various officers of the Executive Branch). While critics claim that the President has used signing statements in “unprecedented fashion,” his constitutional signing statements are, in my view, for the most part fairly unremarkable.  55 of President Bush’s signing statements raised Recommendations Clause objections; 44 raised Presentment Clause or so-called Chadha issues; and 19 raised Appointments Clauses issues.  The President has also frequently used signing statements to preserve the confidentiality of national security information (in 60 instances) — just as his predecessors have. 


It is fair to say that President Bush has issued more signing statements than his predecessors touching on foreign affairs and wartime powers, but there is an unremarkable reason for that — we are a Nation that has been involved in an unprecedented war during his watch.  Having said that, Bush’s predecessors, including President Clinton, have also used signing statements to assert Commander in Chief powers.  To cite just one example, consider President Clinton’s Statement on Signing the Omnibus Consolidated and Emergency Supplemental Appropriations Act (Oct. 23, 1998), where he said the following: 


Section 610 of the Commerce/Justice/State appropriations provision prohibits the use of appropriated funds for the participation of U.S. armed forces in a U.N. peacekeeping mission under foreign command unless the President’s military advisers have recommended such involvement and the President has submitted such recommendations to the Congress. The “Contributions for International Peacekeeping Activities” provision requires a report to the Congress prior to voting for a U.N. peacekeeping mission. These provisions unconstitutionally constrain my diplomatic authority and my authority as Commander in Chief, and I will apply them consistent with my constitutional responsibilities.”  

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