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«Dolly Kefgen Introduction During 2006 my 45-year-old, inquisitive eldest son asked me if I knew the background and issues surrounding Signing State- ...»

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SIGNING STATEMENTS:

History and Issues

Dolly Kefgen

Introduction

During 2006 my 45-year-old, inquisitive eldest son asked me if

I knew the background and issues surrounding Signing State-

ments. Believing that his question related to the exorbitant

salaries of professional athletes, I was puzzled that he was ask-

ing me rather than his father. However I attempted to answer

his question searching my memory bank for information.

Quickly I recalled that in the late 1990’s Michael Jordan signed an annual contract worth 30 million dollars. Skipping over to baseball, I remembered reading in 2000 that Alex Ro- driguez signed a ten-year contract with the New York Yankees for a quarter of a billion dollars. Confidently I concluded that Tiger Woods would make over 100 million dollars that year. He would be the highest paid athlete in the world counting his salary and endorsements with Nike. Wow was my son going to be impressed!

Startled I heard my son say, “Mom, this has nothing to do with professional athletes. It refers to laws passed by Congress and signed by the President. I’m asking you because you have a Ph.D. in Political Science and Economics from the University 93 of Michigan. If I wanted to know about sports, I would ask my Dad, the Coach.” I was speechless and for those of you who know me that was a feat in itself. Truthfully I didn’t have the answer. I knew nothing about Signing Statements. To sooth my sense of inad- equacy, I turned to my friends and asked if they had heard of Signing Statements. Whew, I was not alone. Almost everyone was in the dark on this topic.

To shed light on the subject I began what turned out to be an extensive research project. This report documents the history of Signing Statements and identifies the issues sur- rounding their use, highlighting both the pros and cons.

What is a Signing Statement?

A “Signing Statement” is a written comment that specifies how the President interprets a bill passed by Congress and how he plans to execute the law. The comment is published in the Fed- eral Register.

A signing statement is not a legal document. Many state- ments simply express the President’s opinion while others identify statutes in a bill he maintains are unconstitutional and infringe on executive authority. However federal agencies may turn to the President’s signing statement as a guide when im- plementing a law. Signing statements also can be used by the judicial branch in understanding the intent of the President as it rules on the constitutionality of a law or statute.

What is the History of Signing Statements?

The first signing statement is attributed to James Monroe who in 1822 wrote a message to Congress citing discrepancies he believed existed between a bill and the Constitution. From President Monroe’s Administration (1817–25) to the Carter 94 Administration (1977–81), the Executive Branch issued a total of 75 signing statements to protect presidential prerogatives.1 During the Reagan Administration (1981–89) the use of signing statements increased. Edwin Meese, Attorney General, with the assistance of Justice Department lawyer, Samuel Alito, launched a policy to use signing statements as a means of reinforcing the president’s message. Over 250 signing statements were issued during Reagan’s term of office; 34 percent contained provisions objecting to one or more of the statutory provisions signed into law. During the four-year term (1989–93) of George H. W. Bush, 228 signing statements were issued with 47 percent raising constitutional or legal objections. Bill Clinton, in his two-term administration (1993–2001), issued 381 signing statements of which 18 percent raised objections.2 During the first term of the George W. Bush Administration (2001–2005), the practice grew exponentially. Unlike his predecessors, the President raised multiple objections within a single bill resulting in 750 challenges. The President did not challenge 750 bills but challenged 750 statutes which were provisions contained in about 150 bills. Seventy-eight percent of the signing statements contained some type of challenge or objection.3

–  –  –

The extensive use of signing statements by the Bush Administration raised a red flag among a number of law professors, 1 Curtis A. Bradley and Eric A. Posner, “Presidential Signing Statements and Executive Power,” 23 Constitutional Comment 307, 323, (2006).

2 Curtis A. Bradley and Eric A. Posner 3 Neil Kinkopf, Associate Professor of Law at Georgia State University College of Law and Former Special Assistant in the Office of Legal Counsel, “Index of Presidential Signing Statements: 2001-2007”, American Constitution Society for Law and Policy, August 2007.

95 congressmen, policy makers, and journalists. Law professors and legal organizations have studied the practice and rendered opinions on the issue. Charlie Savage of the Boston Globe initially raised the issue in the press. Many other journalists followed suit. In 2006 the Senate Judiciary Committee conducted hearings on the proliferation of signing statements calling for testimony from the Executive Branch and constitutional experts.

The frequency of the statements drew attention, but it was the “kind” of challenges that resulted in accusations against the Bush Administration. The most widely used challenge by the President centered on a statute’s constitutionality. Other challenges referenced the President’s exclusive power over foreign affairs and concern over national security and classified information.4 Critics maintained that a signing statement could be viewed as an intention by the President to ignore a statute or implement it only in ways consistent with his concept of constitutionality and protection of executive authority. They argued that rather than veto a bill, the President was using signing statements as line-item vetoes. More controversial, the President was accused of broadening the power of the Executive Office at the expense of Congress, thus threatening the system of checks and balances inherent in the Constitution.





Issue: Line Item Veto

George W. Bush was the first president to complete four years in office without a veto since John Quincy Adams in the 1820’s.

Other presidents have used signing statements to clarify their interpretation of laws, but no president has relied solely on the use of signing statements rather than the veto authority spelled

–  –  –

Line Item Veto—Criticisms Critics who maintain that President Bush is using signing statements as line-item vetoes turn to a ruling by the Supreme Court to bolster their case. They cite that in 1996 President Clinton signed into law the Line Item Veto Act intended to curb pork barrel spending. The law gave the President the ability to veto parts of a bill without having to veto the entire bill.

In Clinton v. New York in 1998, the Supreme Court ruled the law unconstitutional. The Supreme Court held the Line Item Veto Act unconstitutional because it violated the Constitution’s Presentment Clause which clearly states that the veto power is to be used with respect to a bill in its entirety, not in part.7 In June of 2006 the Senate Judiciary Committee held hearings on the issue. Both Republicans and Democrats on the Committee voiced their concern. Senator Arlen Specter (RPA), the Chairman of the Committee charged that “congressional legislation doesn’t amount to anything if the president can say that his constitutional authority supersedes the statute.

In effect, he is cherry-picking the provisions he likes and excludes the ones he doesn’t like.”8 Driven by a growing concern over the extensive use of signing statements, the American Bar Association (ABA) created a bipartisan eleven-member task force to study the issue.

The ABA panel concurred with the critics. “To sign a bill and refuse to enforce some of its provisions because of constituPhilip J. Cooper, “George W. Bush, Edgar Allan Poe, and the Use and Abuse of Presidential Signing Statements”, 35 Presidential Studies Quarterly, September 2005.

6 Wikipedia, “List of United States Presidential Vetoes”, The Free On-Line Encyclopedia.

7 American Bar Association (ABA), “Presidential Signing Statements and the Separation of Powers Doctrine”, ABA Task Force Report, August 2006, p. 18.

8 Arlen Specter (R-PA), “Congressional Hearings on Presidential Signing Statements”, The Senate Judiciary Committee, June 27, 2006.

97 tional qualms is tantamount to exercising the line-item veto power held unconstitutional by the Supreme Court.”9 To correct the situation and set a precedent for future presidents, the ABA Task Force recommended that the President communicate concerns to Congress prior to passage of a bill. “It is reasonable to expect the President to work cooperatively with Congress to identify and ameliorate any constitutional infirmities during the legislative process, rather than waiting until after passage of legislation to express such concerns in a signing statement.”10 Although a signing statement is published in the Federal Register, a period of time elapses before it appears in print.

Therefore the ABA Task Force also recommended that the President promptly submit to Congress an official copy of all signing statements setting forth in full the reasons and legal basis for the statement.

Line Item Veto—The President’s Position During the hearings before the Senate Judiciary Committee, Michelle Boardman, Deputy Assistant Attorney General, articulated the Bush Administration position on signing statements. She explained that the practice is an appropriate means by which the President fulfills his constitutional duty to “take Care that the Laws be faithfully executed”. She also claimed that the President’s signing statements have not differed significantly from those of his recent predecessors.11 The Administration’s position received support from Nicholas Rosenkranz, Associate Professor of Law at Georgetown University Law Center. During Congressional hearings, he stated that signing statements offer the President a vehicle by which he can articulate his position without rendering a 9 ABA Task Force Report, p. 22 10 ABA Task Force Report, p.21 11 Michelle Boardman, Deputy Assistant Attorney General, “Prepared Testimony on Presidential Signing Statements” before The Senate Judiciary Committee, June 27, 2006.

98 veto of an entire bill. He believes that the brouhaha over presidential signing statements is largely unwarranted.12 A panel of experts on constitutional law reacted to the ABA Report. The panel supported the Administration position—but with an acrimonious caveat. They write that the President is not resorting to the use of line-item vetoes because the statutes under question became law. “It is unrealistic to expect the President to veto finely wrought and hard-fought legislation of any importance just because two or three provisions out of a thousand contain what they believe to be an unconstitutional item or one that unduly impinges on Executive authority. A signing statement that announces the president’s intention to disregard the invalid provision offers a valuable, and lawful, alternative.”13 However, this panel of constitutional experts who all served in the Office of Legal Counsel in the Department of Justice believes problems exist with the current Administration’s process. “Signing statements imply the intent on the part of the President not to enforce a particular statute. Nonenforcement appears to be a strategy of first resort, not last.

The frequent and cavalier declarations on constitutional objections by the Bush Administration demonstrate that it pays little or no heed to the important roles of Congress and the courts in the process of constitutional interpretation and the resolution of constitutional controversy.”14

–  –  –

Many of the signing statements issued by the Bush Administration dispute a statute’s constitutionality. Other challenges are 12 Nicholas Quinn Rosenkranz, Associate Professor of Law, Georgetown University Law Center, “Prepared Testimony on Presidential Signing Statements”, before The Senate Judiciary Committee, June 27, 2006.

13 Georgetown Law Faculty Blog, “Untangling the Debate on Signing Statements”, July 31, 2006, p. 7.

14 Georgetown Law Faculty Blog, pp. 7–8 99 based on the President’s claim of “exclusive power over foreign affairs, the authority to determine and impose national security classification and a right to withhold information.”15 The President’s emphasis on his exclusive responsibility to conduct foreign affairs and protect the nation from terrorism raised concern among critics. Many held the view that the President’s claim of exclusive responsibility threatened the separation of powers—a basic doctrine in the U. S. Constitution. The Separation of Powers was formulated to create the executive, legislative and judicial branches of the United States government as independent entities that do not infringe upon each other’s rights and duties.

However, “separation of powers is not absolute; it is instead qualified by the doctrine of checks and balances—a system designed to allow each branch to restrain abuse by each other branch. Governmental powers and responsibilities intentionally overlap. For example, congressional authority to enact laws can be checked by an executive veto, which in turn can be overridden by a two-thirds majority vote in both houses;

the President serves as commander-in-chief, but only the Congress has the authority to raise and support an army, and to declare war; the President has the power to appoint all federal judges, ambassadors, and other high government officials, but all appointments must be affirmed by the Senate; and the Supreme Court has final authority to strike down both legislative and presidential acts as unconstitutional. This balancing of power is intended to ensure that no one branch grows too powerful and dominates the national government.”16 Expansion of Executive Power—Criticisms Critics charge that the scope and character of signing statements have changed dramatically. They argue that the White 15 PhilipJ. Cooper 16National Constitution Center, “Separation of Powers and a System of Checks and Balances”, On-line.



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