Cheney's Law [home page]

Signing Statements

They're implicit challenges to acts of Congress and were primarily the handiwork of one person in the administration -- Dick Cheney's lawyer, David Addington. The Boston Globe found hundreds of these documents -- stating that the president, as commander in chief, reserved the right to bypass a new law -- were quietly entered into the Federal Register when bills were signed.

Charlie Savage
Author, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy

A signing statement is a technical, legal document that a president enters into the Federal Register on the day he signs a bill into law. It consists of instructions to the executive branch about how they are to implement this law now that it's on the books. ...

[What do you see when you look at all of the signing statements?]

... I went back and read all these signing statements ... that had been put into the Federal Register since the beginning of the Bush administration. What it turned out to be was a road map, essentially, to the implication of the unfettered presidency that Dick Cheney's legal team was trying to create, because when you march down the hundreds of different laws that Bush had declared himself and the executive branch free to disobey, you saw that it's not just a torture ban here or a question of surveillance there, but in hundreds of matters, now over a thousand, large and small, anywhere where the Congress had tried to say the executive branch had to do something, couldn't do something else, had to go about doing something in a certain way -- ranging from military rules and regulations, whistleblower protections, protections from political interference in federally funded research, affirmative action hiring programs, across a wide swath of what the government does -- the implication was that Congress could not regulate the government.

It was none of Congress' business what the government did, how it went about it, what the limits of its conduct were. All these matters were solely for the president to decide. So Congress could make laws for the rest of us, but not for the government. The government existed to do what the president wanted it to do at any given moment.

And the precedent for the future?

Well, the other interesting thing was that, while this explosive growth was happening, Bush was also not vetoing any bills. ... When the American Bar Association in 2006 studied what was happening after the spotlight started to come on to this, what they concluded was that signing statements were morphing into a replacement for the veto, a much more powerful replacement for the veto.

Why is it more powerful? One, because under a regular veto, the president has to take an entire bill or get rid of an entire bill. ... But under a signing statement, the president can selectively take out chunks he doesn't like. ...

The other way in which signing statements are more powerful than a regular veto, according to the American Bar Association, is of course that Congress has an opportunity to override a veto. ... It's one of the core checks and balances on the president's veto power. But Congress has no opportunity to overrule a signing statement. ...

This is the power that the founders never intended the president to have. It's sort of accreted and grown slowly. It's picking up steam with the Reagan administration, and then, finally, in the Bush-Cheney administration, the throttles were just thrown open and everyone started paying attention. And the question is, can it be put back in the box again? ...

It's not like Bush was the first to do this. There's been examples of signing statements challenging laws going way back in our history. But it was rare, very rare. They started to be issued more frequently in the Reagan administration when the [Edwin] Meese Justice Department was looking for ways to expand presidential power. Their idea was not to nullify laws the president didn't like so much as they were concerned about how judges were looking at congressional history and things that were inserted into the debate when interpreting disputed statutes. ... They'd say, "Well, maybe the president's view should be part of that conversation, too." ...

Courts did not end up paying that much attention to signing statements even after Reagan started issuing them much more frequently. But one by one by one, each of the successive presidencies, including Bill Clinton, who's a Democrat, kept issuing these signing statements, kept challenging new laws. You had this escalation.

And the numbers now are huge?

According to a political science professor at the Miami University of Ohio named Chris Kelly, who's done the hard work of counting previous presidencies' challenges, about 600 laws were challenged by all presidents through the end of Bill Clinton ... using signing statements. By law, that means bill sections. President Bush is now over 1,100. He's challenged more laws than all previous presidents combined. This escalation has just gone off the charts.

And who is the signing-statement maven at the Bush administration?

Former members of the administration's legal team have told me that the primary architect and greatest advocate of this increased use of signing statements has been David Addington in the office of Vice President Cheney.

Early on in the administration, Cheney arranged it so that all legislation that was going to be headed toward the president's desk to be signed would be routed through the vice president's office, allowing David Addington to take part in the bill-vetting process. Normally signing statements would be crafted by the Office of Legal Counsel, the White House Counsel's office, the Office of Management and Budget. The vice president's office was added to that mix, and this became another vehicle for the expression of these very strong views of executive power, this very aggressive conception of what it is that is beyond Congress' ability to regulate when it comes to the executive branch.

He loves to read them?

I'm told he dives into them like a four-course meal.

Bruce Fein
Associate deputy attorney general, 1981-'83

I was involved in signing statements in the Justice Department and there are many occasions in which [during] the evolution of a statute, the president proposes a certain language; the Congress proposes other language. It's traditional that courts oftentimes look to committee reports in Congress or a statement a member of Congress makes on the floor in interpreting an ambiguous statute. The idea was, hey, the president's part of this process, too. … A signing statement can be used to give the courts a clue as to what the president thinks. …

But the use that Bush has made has been something quite different. Basically, it's a statement by the president that although he's signing a bill, he's going to choose the portions that he thinks are unconstitutional and not enforce them. … The Founding Fathers believed that the president was obligated to veto a bill that he thought was unconstitutional in whole or in part, and then Congress could override the veto.

Because the ultimate result of a signing statement is that the president exercises what's known as an absolute line-item veto. That's something the Supreme Court held was unconstitutional in the case called Clinton v. New York in 1998. …

I participated in an American Bar Association task force that addressed this issue. … The real evil of the statements is that it enables one branch of government, really, to be the final say in many respects of his own power. …

What does it tell us about the way that the president views the legislative process?

That he has a great disdain for it. I think that history shows that if he was serious about defending his constitutional views, he'd veto the bills and say, "You have to delete X, Y, Z, they're unconstitutional, and then send me back the correct bill." That's the way it ought to be done.

Jack Goldsmith
Assistant attorney general, Office of Legal Counsel, 2003-'04

[When the controversy erupted over the president's signing statement attached to the McCain anti-torture bill, did you see] the hand of David Addington all over that one?

I don't know for certain from firsthand information that David Addington wrote that. But he was, during my time in office, the person that was pure on defending every single potential presidential prerogative from congressional intrusion through signing statements. So I would be stunned if he were not the person who drafted that signing statement.

There's nothing unusual or unprecedented or illegal about signing statements. Many presidents over many decades, going back to the 19th century, used signing statements. There's a lot of controversy about the legality of signing statements and what it meant, and that controversy got caught up in the separate controversy about the scope of executive power.

But [given] what everyone thinks about the legality of signing statements or the correctness of the interpretation of the president's powers in the signing statement, it struck me as a monumentally politically imprudent thing to do. It was unnecessary to do. There was nothing in that signing statement that was necessary. If the president decided later that some application of his power was unduly restricted and unconstitutionally restricted by this law, he could at that time assert the arguments.

There was nothing, no point served by the signing statement and lots of negative consequences from this in-your-face signing statement after this moment of reconciliation.

[So why did he do it?]

I don't know for sure, but this is something that's very important to understand about understanding the White House's and especially David Addington's attitude toward executive power. They were deeply principled about executive power, so deeply principled that even in the face of terrible political consequences, time and time again they would assert these arguments out of principle, because they thought it was the right thing to do. Sometimes I thought that the greater the political costs, then the more tightly they would stand by the principle, because that was kind of a way of measuring their commitment to the principle.

Bradford Berenson
Associate White House counsel, 2001-'03

I think that the controversy over signing statements is much ado about nothing. I think signing statements are a traditional feature of presidential signatures on legislation. President Bush is not the first person to use them by any stretch. It's bipartisan. I think it's a matter of good government because it notifies the Congress and the public where the president thinks the statute has overstepped and could be unconstitutional as applied.

It's ridiculous to think that the president's only option when faced with a 300-page bill that might contain two or three petty provisions that in some way transgress an unknown part of the Constitution is to veto the entire bill. That's preposterous. It's never been done that way. It would be completely impractical to do it that way.

So issuing a signing statement saying, "I'm signing a legislation; I think it's constitutional as a whole; it's a good idea; we're going to go forward and do it, but be on notice that in these two or three respects, the legislation might be unconstitutional as applied, and I'm going to interpret it and apply it as the chief executive in a manner that I believe constitutional," strikes me as totally unexceptionable. And I think that the effort to fit that into a storyline of radically expanded or aggrandized executive power isn't totally fair on that issue. ...

Bryan Cunningham
Deputy legal adviser, National Security Council, 2002-'04

One of the critiques I would have of the way that David [Addington] has -- I think it's David -- has pushed the use of signing statements, is again, it's a fundamental principle for him. So it doesn't much matter how big the issue is, how small the issue is. He [and] other lawyers around the government and policy people are going to make sure there's no further erosion -- in their mind -- of presidential power. So I think to some degree they've ironically weakened the value of signing statements by how often they've been used.

My personal view -- and I've done a fair amount of legal research on this -- is that the signing statement itself has very little legal force. Either the statute that the president is about to sign is unconstitutional because it infringes impermissibly on his ability to carry out his executive authority, or it's not. In other words, he can't make it so by writing a signing statement. He also doesn't lose the power if he doesn't write a signing statement. …

I think there's one area in which a signing statement might have some legal weight. There's a longstanding constitutional doctrine that says that the courts owe some deference to an executive agency that has the authority for carrying out a law. …

The good government thing about signing statements, I believe, is that at least it puts the Congress on notice, and it puts the American people on notice, that you're going to interpret a law in a particular way. … A great example of where I think this administration has smartly used signing statements, and I think the Clinton administration did too, is when Congress tries to put troop caps -- I used to be the lawyer for the Crime and Narcotics Center at the CIA. Every year Congress, Republican or Democrat, or almost every year, tries to say you can have X amount of troops in Colombia to support the Colombian Army and no more. Well, it's just crystal clear to me Congress doesn't have the power to do that. I think it's better that presidents say in their signing statement, "We're going to only follow this up to the extent that we think you have the power," rather than putting some secret army in Colombia without telling anybody. So to that extent I think they're valuable, but I don't think they have much legal weight.

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posted october 16, 2007

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