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The Collective
Thursday, October 12, 2006
By Dr. Steven Taylor

Last week I commented on some stories concerning President Bush and his use of signing statements and noted a link to a Congressional Research Service report that I noted that I would read and return to.

Here are some things of interest from the report.

The report defines signing statements as follows:

Presidential signing statements are official pronouncements issued by the
President contemporaneously to the signing of a bill into law that, in addition to commenting on the law generally, have been used to forward the President’s interpretation of the statutory language; to assert constitutional objections to the provisions contained therein; and, concordantly, to announce that the provisions of the law will be administered in a manner that comports with the Administration’s conception of the President’s constitutional prerogatives.

The history of these statement dates back to the 19th Century, and it will be of no surprise to anyone who knows anything about the history of the presidency that the first controversy regarding these statements is linked to Andrew Jackson. In terms of being a regular instrument used by the chief executive, we see that had occurred by 1950 and the Truman administration. As has been noted in other stories about this mechanism, the usage of signing statement exploded with the Reagan administration.

Here are the numbers:

President Reagan issued 276 signing statements, 71 of which (26%) contained provisions questioning the constitutionality of one or more of the statutory provisions signed into law. President George H. W. Bush continued this practice, issuing 214 signing statements, 146 of which (68%) raised constitutional objections. President Clinton’s conception of presidential power proved to be largely consonant with that of the preceding two administrations. In turn, President Clinton
made aggressive use of the signing statement, issuing 391 statements, 105 of which (27%) raised constitutional concerns or objections. President George W. Bush has continued this practice, issuing 128 signing statements, 110 of which (86%) contain
some type of constitutional challenge or objection.

So, to recap: 26% of Reagan’s signing statement had objections, Bush I’s 68%, Clinton’s 27% and Bush II’s 86%.

(It is interesting that Reagan and Clinton have similar percentages, and the two Bush’s have substantially higher numbers. It is also noteworthy the Bush I had a fairly contentious relationship with the Congress and was the veto master as well).

Further, the report notes:

The significant rise in the proportion of constitutional objections made by the President Bush is compounded by the fact that these statements are typified by multiple objections, resulting in over 700 challenges to distinct provisions of law.

Keep in mind that with President Bush unlike any of the others, save for two years of the Clinton administration) has had a Congress that has, save for about a year and a half, been unified under the control of his own party-Reagan and Bush I never had a unified government, and Clinton only had two years. Further, he has not been willing to utilize his veto power to shape legislative outcomes. In other words: in regards to these issues he has been unable to get the laws written as he wants them written from his own co-partisans, yet he has not felt strongly enough about the issues to directly confront the Congress with a veto. He would rather, it would seem, use the more nebulous signing statement process to create some sort of potential buffer should he believe a given provision of a law ought to be ignored. Such a situation should be troubling, at a minimum, to anyone who finds our system of separation of powers to be of value or anyone who has skepticism regarding increased powers in the hands of specific segments of the government.

If anything, it is clear that President Bush, and his advisers, see the executive as having the right to seek to encroach upon the powers of the Congress and the courts through the usage of this mechanism. While the signing statements themselves may not directly accomplish such a feat, they do represent a marker of what the President believes that he can do within his general prerogatives as President. Given that we have seen this administration assert very vague claims of power based on “Article II” authority, it is not a leap to assume that the President believed he has the right, in the pursuance especially of national security, to ignore the constitutional prerogatives of the Congress and to usurp those of the judiciary (i.e., interpreting the constitutionality of the laws).

More on this later, I suspect.

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2 Comments

  1. This is the kind of discussion I look for on the net. Although the occasional rant, including my own, can be useful in some way, presenting valuable information for immediate or later use is what should define the blogosphere.
    Signing statements affecting law enforcement from the top down is bothersome. I would guess that is not the reason for non-enforcement of immigration reform from 1986. As with any legislation, it seems pointless to pass it if it is not to be enforced. It makes another excuse for Congress that they are powerless to change anything but simpley legislate.
    Thanks for the useful post. Now I only have to find more time to follow up on this.

    Comment by Stanford Matthews — Thursday, October 12, 2006 @ 2:37 pm

  2. [...] I recommend Professor Steven Taylor’s review of the recent Congressional Research Service report on signing statements by US Presidents. [...]

    Pingback by Fruits and Votes » Blog Archive » Signing statements, again — Tuesday, January 2, 2007 @ 3:34 pm

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