Signing statements did not generally become controversial, however, until the administration of George W. Bush, who has employed them extensively. By mid-2007 he had raised constitutional objections to more than 800 provisions of about 150 pieces of legislation. In doing so, Bush has contended that the president has the right not to enforce provisions of a law that he believes conflict with the Constitution. While Justice Dept. officials have upheld the legality of signing statements, many citizens, legislators, and legal scholars have objected to Bush's use of the devices, asserting that they amount to illegal line-item vetoes (see veto) that Congress cannot override. In mid-2006 a bipartisan panel of the American Bar Association condemned Bush's use of signing statements, maintaining that they often flout the constitutional separation of powers, attempt to undermine the rule of law, and set a potentially harmful precedent. A 2007 study by the nonpartisan Government Accountability Office was also critical of Bush's signing statements, stating that they had been employed to circumvent numerous laws. The issue of signing statements remains one of the most contentious of the Bush administration; the opinions of the ABA and GAO have not altered their use by President Bush.
See P. J. Cooper, By Order of the President: The Use and Abuse of Executive Direct Action (2002).
There is an ongoing controversy concerning the extensive use of signing statements by President George W. Bush to modify the meaning of laws. In July 2006, a task force of the American Bar Association described the use of signing statements to modify the meaning of duly enacted laws as "contrary to the rule of law and our constitutional system of separation of powers".
While it is in theory possible for other executives to issue signing statements, there is no record of notable signing statements by anyone other than an American president.
In recent usage, the phrase "signing statement" has referred mostly to statements relating to constitutional matters that direct executive agencies to apply the law according to the president's interpretation of the Constitution.
A Congressional Research Service report issued on September 17, 2007, uses as a metric the percentage of signing statements that contain "objections" to provisions of the bill being signed into law:
Signing statements do not appear to have legal force by themselves, although they are all published in the Federal Register. As a practical matter, they may give notice of the way that the Executive intends to implement a law, which may make them more significant than the text of the law itself. There is a controversy about whether they should be considered as part of legislative history; proponents argue that they reflect the executive's position in negotiating with Congress; opponents assert that the executive's view of a law is not constitutionally part of the legislative history because only the Congress may make law.
Presidential signing statements maintain particular potency with federal executive agencies, since these agencies are often responsible for the administration and enforcement of federal laws. A 2007 article in the Administrative Law Review noted how some federal agencies' usage of signing statements may not withstand legal challenges under common law standards of judicial deference to agency action.
In Hamdan v. Rumsfeld (2006), the Supreme Court gave no weight to a signing statement in interpreting the Detainee Treatment Act of 2005, according to that case's dissent (which included Justice Alito, a proponent of expanded signing statements when he worked in the Reagan Justice Department — see "Presidential Usage" below).
The upswing in the use of signing statements during the Reagan administration coincides with the writing by Samuel A. Alito — then a staff attorney in the Justice Department's Office of Legal Counsel — of a 1986 memorandum making the case for "interpretive signing statements" as a tool to "increase the power of the Executive to shape the law." Alito proposed adding signing statements to a "reasonable number of bills" as a pilot project, but warned that "Congress is likely to resent the fact that the President will get in the last word on questions of interpretation.
This same Department of Justice memorandum observed that use of Presidential signing statements to create legislative history for the use of the courts was uncommon before the Reagan and Bush Presidencies. In 1986, Attorney General Edwin Meese III entered into an arrangement with the West Publishing Company to have Presidential signing statements published for the first time in the U.S. Code Congressional and Administrative News, the standard collection of legislative history.
And none have used it so clearly to make the president the interpreter of a law's intent, instead of Congress, and the arbiter of constitutionality, instead of the courts.
Some have defended presidential signing statements as "legitimate". For example, according to a member of the United States Department of Justice:
Many Presidents have used signing statements to make substantive legal, constitutional, or administrative pronouncements on the bill being signed. Although the recent practice of issuing signing statements to create "legislative history" remains controversial, the other uses of Presidential signing statements generally serve legitimate and defensible purposes.An editorial in The Wall Street Journal stated:
In its new "study," the ABA claims that Presidential "signing statements" are "contrary to the rule of law and our constitutional system" and urges Congress to pass a law giving itself the power to challenge them in court. It then advances a theory under which the President has no authority to judge for himself the Constitutionality of the various laws he signs. This is absurd on its face given that the President takes an oath to "preserve, protect and defend the Constitution of the United States," thus obliging him to form an independent opinion of what this requires.
The signing statement associated with the Detainee Treatment Act of 2005, prohibiting cruel, inhuman and degrading treatment of detainees in U.S. custody attracted controversy:
"The executive branch shall construe... the Act, relating to detainees, 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...."
This statement explicitly invokes the unitary executive theory, which according to its adherents argues that the President, in his capacity of Commander-in-Chief, cannot be bound by any law or by Congress, since anything hindering him in that capacity can be considered unconstitutional. With his signing statement to the McCain Detainee Amendment, the President has reserved his authority not to be bound by laws passed by Congress.
In a January 30, 2008, editorial, the New York Times declared, "Over the last seven years, Mr. Bush has issued hundreds of these insidious documents declaring that he had no intention of obeying a law that he had just signed.
Former Vice-President Al Gore wrote in The Assault on Reason, "One of President Bush's most contemptuous and dangerous practices has been his chronic abuse of what are called 'signing statements.'" He continues later saying, "This helps explain why Bush has vetoed only one bill during his entire term in office [at the time]. Why bother, if he can simply decide on his own whim which provisions of a law apply to him and which ones he'll simply ignore" (Gore 2007:223-225)?
On July 24, 2006, the American Bar Association's Task Force on Presidential Signing Statements and the Separation of Powers Doctrine, appointed by ABA President Michael S. Greco, issued a widely publicized report condemning some uses of signing statements. The task force report and recommendations were unanimously approved by ABA delegates at their August 2006 meeting.
The bipartisan and independent blue ribbon panel was chaired by Miami lawyer Neal Sonnett, a former Assistant U.S. Attorney and Chief of the Criminal Division for the Southern District of Florida. He is past chair of the ABA Criminal Justice Section, chair of the ABA Task Force on Domestic Surveillance and the ABA Task Force on Treatment of Enemy Combatants; and president-elect of the American Judicature Society.
The report stated in part:
The bill was referred to the Senate Judiciary Committee, which Specter formerly chaired, on the day it was introduced. As with all unpassed bills, it expired with the end of the 109th United States Congress on 9 December 2006.
Specter reintroduced the legislation with the Presidential Signing Statements Act of 2007.
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