Q: What is a Signing Statement?
A: A “Signing Statement” is a written comment issued by a President at the time of signing legislation. Often signing statements merely comment on the bill signed, saying that it is good legislation or meets some pressing needs. The more controversial statements involve claims by presidents that they believe some part of the legislation infringes on the constitutional powers of the presidency, and, therefore, they intend to ignore it or to implement it only in ways they believe is constitutional. Some critics argue that the only proper presidential action is either to veto the legislation (Constitution, Article I, section 7) or to “faithfully execute” the laws (Constitution, Article II, section 3).
Q: Was George W. Bush the first President to issue signing statements?
A: NO. Several sources trace “signing statements” back to James Monroe. Eearly statements that include interesting expressions of presidential doubt about legislation and the issue of how the president should proceed are found from Andrew Jackson, John Tyler, James K. Polk, and Ulysses Grant. A brief overview can be found in the ABA Task Force cited below.
Monroe’s messages did not look like what are today considered “signing statement.” Rather he informed Congress in a message January 17, 1822, that he had resolved what he saw as a confusion in the law in a way that the thought was consistent with his constitutional authority. http://www.presidency.ucsb.edu/ws/index.php?pid=66281
Even more forcefully, Monroe sent another message dated April 6, 1822, (that refers to his January 17, 1822 message as having “imperfectly explained” his concerns) stating
“If the right of the President to fill these original vacancies by the selection of officers from any branch of the whole military establishment was denied, he would be compelled to place in them officers of the same grade whose corps had been reduced, and they with them. The effect, therefore, of the law as to those appointments would be to legislate into office men who had been already legislated out of office, taking from the President all agency in their appointment. Such a construction would not only be subversive of the obvious principles of the Constitution, but utterly inconsistent with the spirit of the law itself, since it would provide offices for a particular grade, and fix every member of that grade in those offices, at a time when every other grade was reduced, and among them generals and other officers of the highest merit. It would also defeat every object of selection, since colonels of infantry would be placed at the head of regiments of artillery, a service in which they might have had no experience, and for which they might in consequence be unqualified.” http://www.presidency.ucsb.edu/ws/index.php?pid=66303
In May 1830, Andrew Jackson wrote an message to the House stating his understanding of the limits of an appropriation: “the phraseology of the section which appropriates the sum of $8,000 for the road from Detroit to Chicago may be construed to authorize the application of the appropriation for the continuance of the road beyond the limits of the Territory of Michigan, I desire to be understood as having approved this bill with the understanding that the road authorized by this section is not to be extended beyond the limits of the said Territory.” http://www.presidency.ucsb.edu/ws/index.php?pid=66775
Tyler, issued a prototypical “reluctant” signing statement, in which he signs a piece of legislation concerning legislative apportionment while announcing, for the record, that he thinks it is unconstitutional: http://www.presidency.ucsb.edu/ws/index.php?pid=67545
Polk in 1848 similarly warned that while he was signing legislation that established a government in the Oregon territory prohibiting slavery, that he would not have signed similar legislation that involved New Mexico and California south of the “Missouri Compromise Line”: http://www.presidency.ucsb.edu/ws/index.php?pid=68034
Q: I’ve searched your website for George W. Bush’s signing statements and only find about 140. The Boston Globe said there were 750. Where are the rest of them?
A: In an article published on April 30, 2006, the Globe wrote that “President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office.” In a clarification issued May 4, 2006, the Globe note that Bush had not really challenged 750 bills (which would have implied 750 signing statements), but “has claimed the authority to bypass more than 750 statutes, which were provisions contained in about 125 bills.”
Q: Is it true that George W. Bush issued many more signing statements than any other president?
A: No, Bill Clinton issued many more signing statements. The controversy is about the kind of signing statements Bush has issued.
Q: What kind of claims did Bush make in his signing statements that made people upset?
A: In one frequently used phrase, George W. Bush routinely asserted that he would not act contrary to the constitutional provisions that direct the president to “supervise the unitary executive branch.” This formulation can be found first in a signing statement of Ronald Reagan, and it was repeated several times by George H. W. Bush. Basically, Bush asserted that Congress cannot pass a law that undercuts the constitutionally granted authorities of the President.
Q: How can I quickly locate a lot of the controversial signing statements?
A: In our search function for all presidential papers, search on: “my constitutional authority” OR “unitary executive”. This will return about 250 documents. Most of them, from Ronald Reagan to the present are signing statements—but there are several veto messages sprinkled among them.
Q: Didn’t the American Bar Association declare that Bush’s use of signing statements was unconstitutional?
A: In July 2006, an ABA “Blue Ribbon Task Force”—not “The ABA”—found that these presidential assertions of constitutional authority “undermine the rule of law and our constitutional system of separation of powers.” The report of the bipartisan commission, which relied on the American Presidency Project database, can be found here: https://www.americanbar.org/content/dam/aba/publishing/abanews/1273179616signstatereport.pdf
Q: What did the ABA Task Force say the president should do if he thinks a bill passed by Congress includes unconstitutional provisions?
A: Veto the bill.
Q: Is this a liberal-conservative issue? Are there any liberals that side with Bush?
A: An important legal statement in support of the use of signing statements was developed by Walter Dellinger, Assistant Attorney General in the Office of Legal Cousel (Department of Justice) for Bernard Nussbaum, Counsel to President Clinton in 1993 (i.e. while the Democrats still had Congressional majorities). Dellinger wrote that the Department of Justice had advised three prior presidents that the Constitution provided authority to decline to enforce a clearly unconstitutional law. The entire 1993 memo may be found here: https://www.justice.gov/file/20446/download
In an essay published in the Boston Globe on August 9, 2006, liberal scholar Lawrence Tribe wrote that signing statements are “informative and constitutionally unobjectionable.” Tribe said that what is objectionable is “the president’s failure to face the political music by issuing a veto and subjecting that veto to the possibility of an override in Congress.” An eventual challenge to a president should come not to the existence of the statement, but to the fact that a president failed to enforce a law or that his actions resulted in harm to others. In the latter case, Tribe has in mind Presidential directives about how to treat “unlawful combatants.” Tribe’s essay can be found here: https://balkin.blogspot.com/2006/08/larry-tribe-on-aba-signing-statements.html/