The legal significance of presidential signing statements

Forum

Volumn 4, Issue 2, 2006, Pages

  Calabresi, Steven G ^a   Lev, Daniel ^a  

^a NORTHWESTERN UNIVERSITY   (United States)

Author keywords

Executive power; Presidency; Signing statements

Indexed keywords

EID: 33751027450     PISSN: 15408884     EISSN: 15408884     Source Type: Journal    
DOI: 10.2202/1540-8884.1131     Document Type: Article

References (48)

1. See U.S. Const. art. I, § 7, cl. 2 (the presentment clause).
2. See also INS v. Chadha, 462 U.S. 919 (1983).
3. For a discussion and explanation of the seemingly oxymoronic concept of presidential "lawmaking" powers see "Panel II: Presidential Lawmaking Powers: Vetoes, Line Item Vetoes, Signing Statements, Executive Orders, and Delegations of Rulemaking Authority," 68 WASH. U. L.Q. 485, 533-560 (Fall 1990) (reprinting a Federalist Society symposium on "The Presidency and Congress: Constitutionally Separated and Shared Powers").
4. Presidential signing statements are brief statements made by the President when he signs into law a bill presented to him by Congress pursuant to Article I, Section 7 of the Constitution. They are generally prepared in writing before the bill is signed into law and are issued at the time of signing much the way a judicial opinion is issued contemporaneously with the entry of an order disposing of a case.
5. Professor Calabresi was the staffer to Attorney General Meese who originally suggested the idea of the signing statement initiative, and he drafted Mr. Meese's letter to the West Publishing Company on this issue. Edwin Meese III, "Letter to Dwight D. Opperman, President and Chief Executive Officer, West Publishing Company" (Dec. 13, 1985), available at http://www.archives.gov/news/samuelalito/accession-060-89-269/ Acc060-89-269-box3-SG-ChronologicalFile.pdf.
6. Marc N. Garber & Kurt A. Wimmer, "Presidential Signing Statements as Interpretations of Legislative Intent: An Executive Aggrandizement of Power," 24 HARV. J. ON LEGIS. 363 (1987);
7. Brad Waites, Note, "Let Me Tell You What You Mean: An Analysis of Presidential Signing Statements," 21 GA. L. REV. 755 (1987);
8. William D. Popkin, "Judicial Use of Presidential Legislative History: A Critique," 66 IND. L.J. 699 (1991).
9. But see Frank B. Cross, "The Constitutional Legitimacy and Significance of Presidential Signing Statements," 40 ADMIN. L. REV. 209 (1988) (arguing that signing statements sometimes deserve to be given legal significance);
10. Daniel B. Rodriguez, "Presidential Signing Statements," Paper delivered at the 1989 Annual Meeting of the Western Political Science Association, Salt Lake City, Utah, March 30-April 1, 1989 (same);
11. Mark R. Killenbeck, "A Matter of Mere Approval? The Role of the President in the Creation of Legislative History," 48 ARK. L. REV. 239 (1995) (same);
12. Kristy L. Carroll, Comment, "Whose Statute Is It Anyway?: Why and How Courts Should Use Presidential Signing Statements When Interpreting Federal Statutes," 46 CATH. U.L. REV. 474 (1997) (arguing that courts should use signing statements as they would legislative history for statutory interpretation). Legislative and journalistic criticism of the signing statement initiative is quoted in the academic literature cited above.
13. Presidents Bill Clinton and George H.W. Bush issued 391 and 214 signing statements, respectively. See Christopher S. Kelley, Ph.D. Dissertation, "The Unitary Executive and the Presidential Signing Statement" 192, Miami University, Oxford, Ohio (2003).
14. Walter Dellinger, "Presidential Authority to Decline to Execute Unconstitutional Statutes," Memorandum for the Honorable Abner J. Mikva Counsel to the President (Nov. 2, 1994), available at http://www.usdoj.gov/olc/ nonexcut.htm.
15. See also Walter Dellinger, "Memorandum for Bernard Nussbaum Counsel to the President," Office of Legal Counsel (Nov. 3, 1993), available at http://www.usdoj.gov/olc/signing.htm, reprinted in 48 ARK. L. REV. 333 (1995).
16. As of August 17, 2006, President George W. Bush issued 136 signing statements. Gerhard Peters, Presidential Signing Statements, http://www.presidency.ucsb.edu/signingstatements.php.
17. 467 U.S. 837 (1984).
18. Cross, supra note 4, at 210-11;
19. Popkin supra note 4, at 700-704;
20. Garber & Wimmer, supra note 4, at 366-370;
21. Rodriguez, supra note 4, at 4. Before President Reagan, 1294 signing statements were issued by 23 presidents, mostly attributable to Presidents Johnson and Carter, who signed 302 and 247 statements, respectively.
22. Kelley, supra note 5, at 192.
23. Popkin, supra note 4, at 702. The Jackson and Truman signing statements discussed by Professor Popkin were at least somewhat controversial. Kelley's analysis of all 2175 of the pre-Bush II signing statements found that 73% contained rhetorical arguments, 18% advanced constitutional arguments, and the remaining 5% were political.
24. Kelley, supra note 5, at 192.
25. Garber & Wimmer, supra note 4, at 366.
26. Rodriguez, supra note 4, at 4.
27. It has long been recognized that the widespread public availability of legal source materials is critical if those materials are to have any real-world impact. See Grant Gilmore, The Ages of American Law (1974).
28. See also Mary Ann Glendon, Michael Wallace Gordon, & Christopher Osakwe, Comparative Legal Traditions 565-570 (1985) (discussing differences in case reporting systems). Professor Popkin explains that "Easy access to presidential legislative history is a recent phenomenon, beginning with government publication of the Weekly Compilation of Presidential Documents in 1965."
29. Popkin, supra note 4, at 700 n.4. Prior to that time, presidential signing statements could only be found by the general public, or by interested judges and inferior executive officials, in: 1) the published public papers of various presidents; 2) occasional miscellaneous compilations of all the legislative history associated with particular bills; and 3) in the "Presidential Messages" section of the USCCAN and its predecessor, the United States Congressional Service.
30. Id.
31. Address by Attorney General Edwin Meese III, National Press Club, Washington, D.C. (Feb. 25, 1986).
32. Jeffrey Toobin, "The Last Word," New Republic, Nov. 3, 1986, at 13;
33. Douglas W. Kmiec, "Judges Should Pay Attention to Statements by President," Nat'l L.J., Nov. 10, 1986, at 13;
34. Kurt Strasser, "Executive Intent," Nat'l L.J., Mar. 10, 1986, at 2;
35. Garber & Wimmer, supra note 4, at 366;
36. Neil A. Lewis, "Turning Loyalty and Service to Bush Into Power as Presidential Counsel," New York Times, Dec. 12, 1990, at B12.
37. Rodriguez, supra note 4, at 3.
38. Dellinger, supra note 6, at 7.
39. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,610 (1952) ("It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them.").
40. William Eskridge, "The New Textualism," 37 UCLA L. REV. 621, 622 (1990) ("Although it is true that the Court in recent times has expressed approval of this doctrine [that legislative history can sometimes trump plain meaning], that is to my mind an ill-advised deviation from the venerable principle that if the language of a statute is clear, that language must be given effect-at least in the absence of a patent absurdity." quoting Immigration &
41. Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421, 452 (1987)).
42. 467 U.S. 837 (1984).
43. Cass R. Sunstein, "Chevron Step Zero," 92 VA. L. REV. 187 (2006).
44. Gary S. Lawson, "Outcome, Procedure, and Process: Agency Duties of Explanation for Legal Conclusions," 48 RUTGERS L. REV. 313 (1996).
45. Christopher S. Yoo, Steven G. Calabresi, & Anthony J. Colangelo, "The Unitary Executive in the Modern Era, 1945-2004," 90 IOWA L. REV. 601 (2004);
46. Christopher S. Yoo, Steven G. Calabresi, & Laurence D. Nee, "The Unitary Executive During the Third Half-Century," 1889-1945, 80 NOTRE DAME L. REV. 1 (2004);
47. Steven G. Calabresi & Christopher S. Yoo, "The Unitary Executive During the Second Half-Century," 26 HARV. J.L. & PUB. POL'Y 667 (2003);
48. Steven G. Calabresi & Christopher S. Yoo, "The Unitary Executive During the First Half-Century," 47 CASE W. RES. L. REV. 1451 (1997).