Sawyer , the Court declared that "the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. Despite these declarations from the Court, the executive branch has consistently maintained that the President possesses authority to decline to enforce enactments he views as unconstitutional.
United States , for support for this proposition, asserting that since "the Court sustained the President's view that the statute at issue was unconstitutional without any member of the Court suggesting that the President had acted improperly in refusing to abide by the statute," the Court could therefore "be seen to have implicitly vindicated the view that the President may refuse to comply with a statute that limits his constitutional powers if he believes it to be unconstitutional.
Commissioner , for the proposition that "the President has the 'power to veto encroaching laws It is not at all clear that the reliance of the DOJ on these factors would bear the weight of direct judicial scrutiny.
Specifically, as noted above, the Court in Myers v. United States evidenced a clear appreciation of the limits of the President's authority under the Take Care Clause. As such, there would appear to be little support for the DOJ's conclusion that Myers implicitly validated the notion that the President may refuse to enforce laws he deems unconstitutional, particularly in light of the fact that the Court in Myers did not address the President's refusal to enforce the law at issue.
As was stated by the Court in Powell v. McCormack , "[t]hat an unconstitutional action has been taken before surely does not render that same action any less unconstitutional at a later date.
First, while the concurrence contemplates the allocation of power between Congress and the executive in the event that the "President takes measures incompatible with the express or implied will of Congress," it, like the majority opinion in Myers , does not give any substantive consideration whatsoever to the President's authority to decline to enforce the law.
While the Court has not had occasion to address the issue directly, the cases discussed above could be taken to indicate a rejection on the part of the Court that the President possesses the power to suspend acts of Congress, instead establishing that the President is bound to give effect to such enactments pursuant to the Take Care Clause.
The natural corollary of this proposition, as touched upon by the Court in Youngstown , is that the proper course of action for the President, when faced with a bill he deems unconstitutional, is to exercise his Article I veto authority. As such it is not possible to state conclusively that the President lacks any authority whatsoever to decline to enforce laws he deems unconstitutional absent a definitive consideration of the issue by the Court.
While presidential authority to refuse to enforce laws the President considers unconstitutional is a matter of significant constitutional importance, the issue is ultimately of little concern with regard to the legality or effect of signing statements themselves. As the judicial maxims discussed above establish, there is little evident support for the notion that signing statements are instruments with legal force and effect in and of themselves.
If an action taken by a President in fact contravenes legal or constitutional provisions, that illegality is not augmented or assuaged merely by the issuance of a signing statement.
Commentators argue that this dynamic lends credence to the notion that signing statements have been employed by several administrations not to flatly reject congressional enactments, but, rather, are intended to sensitize other parties to the President's conception of executive authority. Moreover, the use of signing statements as an instrument to expand executive authority generally, as opposed to a mechanism by which the President has claimed summary authority to dispense with the laws enacted by Congress, becomes more apparent when the merits of the objections that typify signing statements are examined.
In particular, such analysis indicates that while there are instances in which signing statements are predicated on specific and supportable concerns, the majority of the objections raised, especially with respect to the signing statements issued by the Bush II Administration, were largely non-substantive or were so general as to appear to be hortatory assertions of executive authority. The constitutional and legal principles discussed below are applicable to any signing statement that raises constitutional objections or challenges to congressional enactments based on a general assertion of authority in the specific substantive area identified.
As noted above, foreign affairs legislation has been one of the primary areas in which recent Presidents have repeatedly raised constitutional objections or challenges.
For example, remarking upon provisions of the Syria Accountability and Lebanese Sovereignty Restoration Act of that required the imposition of sanctions against Syria absent a presidential determination and certification that certain conditions had been met by Syria or a determination that national security concerns justified a waiver of sanctions, President George W.
Bush declared:. A law cannot burden or infringe the President's exercise of a core constitutional power by attaching conditions precedent to the use of that power.
The executive branch shall construe and implement [this requirement] in a manner consistent with the President's constitutional authority to conduct the Nation's foreign affairs and as Commander in Chief, in particular with respect to the conduct of foreign diplomats in the United States, the conduct of United States diplomats abroad, and the exportation of items and provision of services necessary to the performance of official functions by United States Government personnel abroad.
This signing statement is typical of the Bush II Administration's approach, in that it challenges more than one provision of the bill and voices objections across a range of constitutional principles.
While the broad and generalized nature of the President's remarks make it difficult to determine specific objections that might arise in the implementation of the act, it may be assumed that President Bush determined that the requirements imposed by Congress under these portions of the act raised separation of powers concerns to the extent that they could be construed as impinging upon core presidential powers or impairing the President's ability to protect national security information or deliberations with his advisers.
The Obama Administration's signing statements have also registered objections to perceived congressional encroachments into the President's constitutional authority in foreign affairs. These objections, however, have more narrowly focused on congressional attempts to direct negotiations with foreign states or international organizations. For example, President Obama specifically objected to various provisions in the Supplemental Appropriations Act of which directed the Secretary of the Treasury to order U.
Regarding the concerns voiced over the executive's foreign affair prerogatives, it should be noted that the Supreme Court has proscribed legislative attempts to extend congressional power into what could be called the "core functions" of the executive branch.
Specifically, while it is generally conceded that there are some powers enjoyed by the President alone regarding foreign affairs, it is likewise evident that Congress possesses wide authority to promulgate policies respecting foreign affairs. Executive privilege has also formed the constitutional basis for a significant number of presidential signing statements.
For example, in remarking upon provisions that required the Secretary of State to submit reports regarding Syria's compliance with the conditions of the act and that nation's dealings with terrorists, President George W. The executive branch shall construe [this requirement] in a manner consistent with the President's constitutional authority to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties.
As mentioned previously, President Obama has not specifically referenced executive privilege in any of his signing statements. However, he has registered objections to provisions that require the President to provide information to Congress. As noted, the Obama Administration utilized a signing statement to object to a requirement in the Fraud Enforcement and Recovery Act of that agencies furnish the Financial Crisis Inquiry Commission with information related to any commission inquiry.
Rather than expressly invoking executive privilege, the statement asserted that the executive branch would construe the provision "not to abrogate any constitutional privilege. Both of these signing statements would appear to constitute a generalized declaration of executive power, given that neither statement raised any specific objection to the provision, nor provided any substantive analysis of how its requirements might impinge upon executive authority.
To the extent objections based on executive privilege might be taken to indicate a position on the part of the executive that it possesses an absolute right to withhold documents from Congress, it should be noted that judicial and historical precedents run to the contrary.
For example, it is well established that Congress may impose reporting requirements upon executive branch officials, and nothing in the act purports to strip the President of his authority to assert a valid claim of privilege, or to withhold documents on the basis of national security. Regarding claims of privilege with regard to presidential communications, the Court held in United States v.
Nixon that the notion of privilege is constitutionally rooted, and that when invoked by the President, the materials at issue are deemed "presumptively privileged.
The Court in Nixon indicated that the President's authority to "protect military, diplomatic or sensitive national security secrets" was significantly greater than his power to protect the confidentiality of executive communications. Airlines v. Waterman Corp. In United States v. American Telephone and Telegraph Co. While the Constitution assigns to the President a number of powers relating to national security, including the function of commander in chief and the power to make treaties and appoint Ambassadors, it confers upon Congress other powers equally inseparable from the national security, such as the powers to declare war, raise and support armed forces and, in the case of the Senate, consent to treaties and the appointment of ambassadors.
Accordingly, it seems apparent that any all-encompassing or generalized concern regarding executive privilege is not buttressed by any underlying definitive right to withhold information from Congress. Recent Presidents have also employed the signing statement to object to direct reporting requirements that have been imposed by Congress.
Congress has imposed direct reporting requirements on executive branch officials since the first Congress. Legislation establishing the Treasury Department required the Secretary to report to Congress and to "perform all such services relative to the finances, as he shall be directed to perform. Chadha , the Court explicitly affirmed Congress's authority to impose "report and wait" provisions, distinguishing them from the unconstitutional legislative veto provisions under review in that case.
In light of these factors, it seems apparent that signing statements objecting to direct reporting requirements represent an attempt to sensitize executive personnel to the wishes of the President and to assert a broad conception of presidential power in the face of congressional enactments, rather than a definite and substantive refusal to enforce a congressional enactment.
Recent Presidents have also been quite active in issuing signing statements that object to bills passed by Congress that impose a legislative veto over actions taken by the executive branch. Presidential action in this context is particularly interesting, as it provides an example of a context in which the Presidents' declarations are on solid constitutional footing, as well as the opportunity to analyze two conceptually related arguments that have been raised against the issuance of signing statements generally.
Chadha invalidated the use of a legislative veto by Congress by virtue of the Court's determination that such action violates the Bicameralism and Presentment Clause of the Constitution. Despite this ruling, Congress has continued to pass legislation imposing facially invalid legislative veto provisions.
Prior administrations objected to these provisions in signing statements, including President George W. Bush, who issued approximately 47 statements that contain objections to provisions in legislation passed by Congress that it claims violate the separation of powers principles delineated in Chadha. There, the President declared that "[t]he executive branch shall construe certain provisions of the act that purport to require congressional committee approval for the execution of a law as calling solely for notification, as any other construction would be inconsistent with the principles enunciated by the Supreme Court of the United States in INS v.
In a March 11, , statement, President Obama objected to various provisions of the Omnibus Appropriations Act of that "condition the authority of officers to spend or reallocate funds on the approval of congressional committees. While signing statements that raise broad assertions of executive authority and general constitutional objections to bills passed by Congress may indicate an overly broad conception of presidential power, statements that object to legislative vetoes are supported by Supreme Court precedent.
Relatedly, it could be argued that the apparent purpose behind the continued congressional practice of imposing such requirements in turn illustrates the dynamic underlying the objections and assertions of authority that characterize signing statements. Despite the apparent facial unconstitutionality of such provisions, relatively little complaint has been voiced concerning Congress's persistence in passing bills that contain legislative veto provisions.
The apparent motivation for this practice arises from the fact that while Congress and its committees may not anticipate formal legal compliance with such provisions and often do not expect to be able to enforce them, pragmatic political considerations oftentimes result in substantive acquiescence by the agencies involved. Accordingly, a presidential signing statement objecting to a legislative veto provision serves not only as a response to perceived encroachment on executive branch prerogatives, but also as a declaration that the administration expects, and will be supportive of, the rejection of such congressional assertions of authority by affected agencies.
The generalized nature of the constitutional objections and assertions of authority that pervade signing statements, coupled with the fact that such instruments do not have any legal force or effect in and of themselves, lends support to the notion that presidential administrations may employ these instruments as a means by which to make broad claims to extensive and exclusive authority. This approach necessarily raises questions regarding the impact of signing statements on the exercise of executive authority in relation to the traditional roles of Congress and the judiciary.
With regard to the judicial branch, the primary consideration is whether the courts have in fact begun to give a degree of determinative weight to signing statements in a manner akin to traditional sources of legislative history. As noted above, one of the factors that appears to have motivated the increase in the issuance of signing statements beginning in the Reagan Administration was to encourage judicial reliance upon the viewpoints contained therein.
After persuading West Publishing Company to include signing statements along with legislative histories contained in the United States Code Congressional and Administrative News , Attorney General Edwin Meese stated that this inclusion would facilitate the use of signing statements by courts "for future construction of what the statute actually means. Despite these efforts, it does not appear that courts have incorporated signing statements in the manner hoped for by the Reagan Administration, presumably due to traditional practice as motivated by constitutional precepts.
In particular, it could be argued that while there is little support for the notion that the Constitution somehow implicitly forbids the issuance of signing statements, the nature of the President's role in vetoing or approving legislation has nonetheless militated against courts granting interpretive weight to signing statements.
Specifically, while the Constitution provides that the President is to note his objections upon the veto of a bill, there is no corresponding requirement that he announce his reasons for its approval. In turn, there is a constitutionally prescribed procedure by which Congress is to consider objections raised by a President in formulating a response to a veto, but not for congressional response to a signing statement. While this dichotomy does not require that courts disregard signing statements as there is likewise no corresponding constitutional validation of committee reports, floor debates and other legislative history , it arguably lends weight to the notion that presidential signing statements should be discounted when they conflict with congressional explanations that have traditionally enjoyed judicial deference.
In particular, a well established rule for resolving conflicts in legislative history establishes that when the two houses have disagreed on the meaning of identical language in a bill that did not go to conference, the explanation that was before both houses prevails in the event that the court turns to the legislative history. The rationale is that congressional intent should depend upon the actions of both houses.
Accordingly, given that Congress has no opportunity to act in response to interpretations set forth in signing statements, there is lessened support for the notion that courts should rely upon them to interpret the aim of a congressional enactment.
A related issue arising from this constitutional provision centers on the fact that the President may only approve or veto a bill in its entirety. The President does not possess inherent line item veto authority, and it is well established that Congress cannot grant the President such authority by statute. Information contained in signing statements may be entitled to more significant judicial consideration if the President or his Administration worked closely with Congress in developing the legislation, and if the approved version incorporated the President's recommendations.
Although signing statements are not generally treated as a significant part of legislative history by the courts, they nonetheless affect interpretation by virtue of the effect of directives contained therein on actions taken by administering agencies. Courts grant a high degree of deference to interpretations of agencies charged with implementing statutes, premised on the notion that Congress has authorized the agency to "speak with the force of law" through a rulemaking or other formal process.
Congress has not authorized the President to speak with the force of law through signing statements. So, although signing statements may influence or even control agency implementation of statutes, it is the implementation, and not the signing statement itself, that would be measured against the statute's requirements.
At most, signing statements might be considered analogous to informal agency actions, entitled to respect only to the extent that they have the power to persuade.
Ultimately, it does not appear that the courts have relied on signing statements in any appreciably substantive fashion. As touched upon above, the references made to signing statements in the Supreme Court's decisions in Bowsher v.
Synar and INS v. Chadha were perfunctory in nature. Furthermore, in Hamdan v. Rumsfeld , the Supreme Court made no reference whatsoever to the President's signing statement in rejecting the contention that the Detainee Treatment Act did not apply to pending habeas petitions of Guantanamo detainees. One of the main complaints lodged by the ABA Task Force in opposition to the issuance of presidential signing statements is based on the viewpoint that the objections and challenges raised therein improperly circumvent the veto process delineated in the Constitution.
While this position has a degree of intuitive appeal in light of the maxims pronounced in cases such as Youngstown , it could misconstrue the nature of signing statements as presidential instruments as well as the actual substantive concerns that underlie their issuance. First, as the signing statements discussed above illustrate, it is exceedingly rare for a President to make a direct announcement that he will categorically refuse to enforce a provision he finds troublesome.
Instead, the concerns voiced in the statements are generally vague, with regard both to the nature of the objection and what circumstances might give rise to an actual conflict. The ABA Task Force Report's concern on this point also seems to assume that the interpretation and application of congressional enactments is a black and white issue, when, in reality, inherent ambiguity in the text almost always allows for competing interpretations of what the provision at issue requires.
Bush issued signing statements affecting over 1, provisions of law in Congressional enactments. Two types of "metrics" surfaced in writings about signing statements during the Bush administration. One approach is to count the signing statement documents that a president issues when signing Congressional enactments. The second approach is to count the provisions of law challenged by those documents. Number of Signing Statement Documents.
Bush issued signing statement documents during his term. For a list of the signing statements, click here. Here is my count by year of issuance:. Number of Laws Affected by Signing Statements.
We now have two independent academic counts of the number of laws challenged in the Bush signing statements. Based on those two counts, it seems most accurate to report that George W. Bush issued signing statements affecting over 1, provisions of federal law. The full list of Bush's signing statements is here. But I heard that Bush issued or signing statements There are two approaches to counting signing statements.
The first is to count the documents issued by the president that are categorized as signing statements. The second is to count each provision of law affected by a single signing statement document as a separate statement. Under this second method, a single signing statement document that challenges 40 provisions of law within one Congressional enactment is reported as 40 signing statements. For instance, Professor Kelley found challenges to about 50 laws in a single signing statement for the Consolidated Appropriations Act of In September of , Neil Kinkopf, Associate Professor of Law at Georgia State University College of Law and former Special Assistant in the Office of Legal Counsel at the Department of Justice, issued a list of "every provision of a law objected to by the White House in a signing statement [between and ], the reason for the objection, and a link to the relevant signing statement.
Professor Kinkopf's ambitious project demonstrated that President Bush's signing statements had, by that time, challenged more than 1, provisions of federal law. Some commentators failed to update their numbers after the early Boston Globe article, and some still do not distinguish between the signing statement documents and the number of laws challenged. Therefore, reports of signing statements remained fairly common throughout the rest of Bush's term. Recent reports that George W.
Bush issued 1, signing statements are based on a count provided by Professor Christopher Kelly to the New York Times. I am reporting that President Bush issued signing statements challenging over 1, provisions in enactments based on both Professor Kinkopf's and Professor Kelley's counts. Why was the number of Bush's signing statements controversial? Before George W. Bush's administration, signing statements had received little attention outside academia.
Thus, it took scholars, lawyers, members of Congress, and reporters some time to establish methods and conventions for counting and categorizing signing statements. Eventually, many people concluded that the controversy was as much about how President Bush used signing statements as about how many he issued. When George W. Bush's signing statements began receiving media attention in , there was a great deal of controversy about how many signing statements he had issued. Bush's use of signing statements.
Office of Legal Counsel Deputy Assistant Attorney General Michelle Boardman, who identified herself as the Department of Justice's expert on signing statements, represented the Bush administration at the hearing. Boardman's remarks to the Committee were somewhat unclear and a bit clouded by attempts to categorize the statements.
However, she seems to have indicated that there were signing statements or, by an alternate reading of her words, perhaps as many as , even though this website had already posted official, multiple-sourced text for See, e. In January of , the Department of Justice again asserted that President Bush had signed only "constitutional" signing statements. See , Statement of John P. The confusion cleared in the fall of when the Congressional Research Service reported that George W.
Bush had issued signing statements. My counts squares with the CRS. Bush issued nine signing statements after the CRS count of September, Three signing statements , , were expressly identified as signing statements by the WCPD but never appeared on the White House website.
Two bills received two signing statements each: for H. One signing statement covers two bills: H. Did George W. Bush issue more signing statements than all previous presidents combined?
It is often claimed that George W. Bush issued more signing statements than all previous presidents combined. If one merely counts the "signing statement" documents , the Bush administration was not very different from previous recent administrations.
If you count the number of provisions of law challenged by the Bush signing statements over 1, provisions , the statement is fair. However, the question is somewhat misleading. The better approach is to compare how various presidents have used signing statements. To date, the CRS has offered the most useful comparison of recent administrations, by focusing on constitutional challenges raised in signing statements.
This is both a substantive and quantitative analysis. In a "constitutional" signing statement, a president will object to a provision of law by directly citing a provision of the Constitution, or by citing a Supreme Court ruling interpreting the Constitution, or by bare assertion without citation to authority that the law offends the Constitution or invades the power of the Executive.
A president may announce his intent to disregard the law due to claimed constitutional infirmity, or he may announce that he will interpret the law to avoid the constitutional difficulties that he perceives. By contrast, a "rhetorical" signing statement is ceremonial in nature, and usually praises the wisdom of the law or the lawmakers, or notes the importance of the issue addressed by the law.
Or a rhetorical statement may criticize Congress or the enactment without challenging Congress's authority to act. For an example of a "rhetorical" signing statement, see President's Statement on S. For an example of a constitutional signing statement, see President's Statement on Energy Policy Act of Bush's use of signing statements to the three previous administrations, reporting that:.
Bush's signing statements raised constitutional objections. Two other reports focus on how presidents have used signing statements, as opposed to how many they've issued.
Who drafted signing statements for President Bush? David Addington. Arlen Specter R-Pa questioning the candidate concerning the origin and preparation of signing statements, pp.
The Obama administration may continue this practice. In a recent recruitment posting on the OMB website, the job duties listed for the position of OMB legislative analyst include preparing "memoranda including signing statements and veto messages to [sic] the President on enrolled bills. While a bill is pending in Congress, the Executive branch may send Congress a SAP explaining the administration's position on the bill.
The Congress has now revised the National Defense Authorization Act to incorporate these new funding changes and has altered the funding authorization provisions to which I objected. I am therefore signing this annual defense authorization legislation because it includes vital benefits for military personnel and their families, authorities to facilitate ongoing operations around the globe, and important reforms to the military retirement system, as well as partial reforms to other military compensation programs.
It also codifies key interrogation-related reforms from Executive Order , which I strongly support. I am, however, deeply disappointed that the Congress has again failed to take productive action toward closing the detention facility at Guantanamo.
Maintaining this site, year after year, is not consistent with our interests as a Nation and undermines our standing in the world. As I have said before, the continued operation of this facility weakens our national security by draining resources, damaging our relationships with key allies and partners, and emboldening violent extremists.
It is imperative that we take responsible steps to reduce the population at this facility to the greatest extent possible and close the facility. The population once held at Guantanamo has now been reduced by over 85 percent. Memorandum from William P. Legal Counsel, available online. Legal Counsel available online. Alito, Jr. Department of Justice Memorandum Executive orders: hearing October 27, by United States.
Committee on Rules. Subcommittee on Legislative and Budget Process. Call Number: KF R Also found online. Committee on the Judiciary. J8 zr. Presidential signing statements under the Bush administration: a threat to checks and balances and the rule of law? J8 a. Clinton v. There is no constitutional authorization for the President to amend or repeal.
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