Understanding Our Constitution - Part 32 - Presidential Signing Statements

A signing statement is issued by the President on the signing of a bill into law. These statements are divided into three categories:

Constitutional: The statement may declare that the legislation would be unconstitutional in certain applications. It may interpret the legislation in a manner that would “save” it from unconstitutionality. It may state flatly that the legislation is unconstitutional. These statements could include a declaration as to how - or whether - this legislation will be enforced.

Political: The statement guides and directs Executive officials in interpreting or administering a statute. The President has the constitutional authority to supervise and control the activity of subordinate officials within the Executive Branch.

Rhetorical: The statement is used to explain to the public and interested constituents what the President understands to be the likely effects of the bill and how it adheres to the Administration's view or programs.

The phrase ”signing statement” usually refers to statements that tell executive agencies to apply the law according to the president’s interpretation of the Constitution.

James Pfiffner, a political scientist wrote:

“The president is the head of the executive branch, and in general, executive branch officials are bound to follow his direction. In cases in which a subordinate is ordered to do something illegal, the person can legitimately refuse the order. But if the public administrator is ordered to refuse to execute the law...because the president has determined that the law infringes on his own interpretation of his constitutional authority, the public administrator faces an ethical dilemma.”

No Constitutional provision or federal statute explicitly permits or prohibits signing statements. Article I, Section 7 empowers the president to veto a law in its entirety or to sign it. Article II, Section 3 requires that the executive “take care that the laws be faithfully executed”.

Signing Statements do not appear to have legal force by themselves and are indicative of the way the president intends to implement a law. This may make them more significant than the text of the law itself.

Four Supreme Court Justices (Scalia, O’Connor, Kennedy,& Souter) joined in the opinion that the Constitution provides the President with the authority to decline to enforce a clearly unconstitutional law. Freytag v. C.I.R., 111 S. Ct. 2631. 2653 (1991).

During the administration of President George W. Bush, critics charged that he used signing statements extensively to modify the meanings of statutes. President Bush used signing statements in an apparent attempt to nullify legal restrictions on his actions. Some opponents have said that he was using signing statements as a line-item veto which the Supreme Court has previously ruled as unconstitutional. Clinton v. City of New York (1998).

Previous administrations have made use of signing statements to dispute the validity of a new law or its individual components. George H.W. Bush challenged 232 statutes through signing statements during four years in office and Clinton challenged 140 over eight years. George W. Bush’s signing statements contain at least 1,100 challenges.

In July of 2006, a task force of the American Bar Association stated that the use of signing statements to modify the meaning of duly enacted laws serves to “undermine the rule of law and our constitutional system of separation of powers”.

The Obama administration is continuing the practice of presidential signing statements.