Presidential "Signing Statements"

In its annual meeting this month, the House of Delegates of the American Bar Association (traditionally at odds with republican administrations) approved the report of an ABA taskforce regarding “presidential signing statements,” addendums provided by the president to bills passed by Congress and enacted into law with his signature. The report began with this resolution: “That the American Bar Association opposes, as contrary to the rule of law and our constitutional system of separation of powers, the issuance of presidential signing statements that claim the authority or state the intention to disregard or decline to enforce all or part of a law the President has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress.”

Presidents from the time of Andrew Jackson have issued signing statements, considered valid under the Constitution. The ABA had no problem with this; rather, it claimed that the current president used this instrument excessively. In June, the Senate Judiciary Committee held hearings on the matter, though only one republican senator other than Chairman Specter participated, along with five of eight democrats, the implication being that the matter was purely political.

A comprehensive definition of the signing statement was provided in a 1993 memo prepared by Walter Dellinger, an assistant attorney general at the time, for Bernard N. Nussbaum, counsel to President Clinton: “These functions [signing statements] include (1) explaining to the public, and particularly to constituencies interested in the bill, what the President believes to be the likely effects of its adoption, (2) directing subordinate officers within the Executive Branch how to interpret or administer the enactment, and (3) informing Congress and the public that the Executive believes that a particular provision would be unconstitutional in certain of its applications, or that it is unconstitutional on its face, and that the provision will not be given effect by the Executive Branch to the extent that such enforcement would create an unconstitutional condition.”

The memorandum includes a thorough discussion of the subject, to which Dellinger appended, “Conclusion: Many Presidents have used signing statements to make substantive legal, constitutional or administrative pronouncements on the bill being signed. Although the recent practice [1993] of issuing signing statements to create ‘legislative history’ remains controversial, the other uses of Presidential signing statements generally serve legitimate and defensible purposes.”

The president is faced with either signing a Congressional Act with which he almost completely agrees or vetoing the whole act; so, as the first person to make a judgment regarding its constitutionality, he sometimes signs the act into law with his written reservations and explanations for them. For instance, President Lincoln decided to veto the Confiscation Bill but changed his mind, signed it, and attached as his signing statement the draft veto-message he had initially prepared. Rather than vetoing the whole act, Lincoln signed the bill but served notice of how he would treat it. Many other examples are furnished in the memorandum. The statements are particularly pertinent at times of national emergencies such as the current one regarding the war on terror.

The “hot button” issue regarding treatment of the Guantanamo prisoners helped precipitate the current brouhaha over signing statements. No president has been faced with disposition of imprisoned combatants not a part of another country’s army, thus no precedents have been in place. The president signed the Intelligence Authorization Act of 2005 but issued a signing statement democrats claimed was designed to allow for torture, a subject covered in the act. Indeed, any president may explain how he (subordinates included) intends to administer any law.

If it is suspected the president has misused a law, a suit can be brought precipitating an injunction by a federal judge to stay his actions until the matter is resolved by the courts. One such injunction has recently been enacted by a judge in the Sixth District, stopping an intelligence-gathering procedure (NSA wiretap program). Her action will probably be decided by the Supreme Court soon, since national security is the issue. The balance of power remains in effect whether with respect to signing statements or varying interpretations of law.

In the final analysis, one must consider part of Article 2, Section 3 of the Constitution, which states that the president must act "in a manner consistent with the constitutional authority of the president to supervise the unitary executive branch and as commander-in-chief, and consistent with the constitutional limitations on the judicial power." Also, the president’s duty under Art. 2, Sec. 3, to “take Care that the Laws be faithfully executed,” does not distinguish between bills he has signed into law and other laws.

The tension among the three branches of government is always in play, but neither Congress nor the executive is always right, and the Court – with its own biases, collectively or individually – must rule. This can be messy, but it works.

And so it goes.

Jim Clark.