Schoolhouse rock is no longer enough: The presidential signing statements controversy and its implications for library professionals

Law Library Journal

Volumn 100, Issue 4, 2008, Pages 619-637

  Wang, I Wei ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 57249111660     PISSN: 00239283     EISSN: None     Source Type: Journal    
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References (175)

1. Christopher S. Kelley, A comparative Look at the Constitutional Signing Statement: The Case of Bush and Clinton 2 (paper presented at the 61st annual meeting of the Midwest Political Science Association, Chicago, 111., April 3-6, 2003) (copy on file with author). Kelley was one of the few scholars actively interested in President George W. Bush's use of presidential signing statements before the issue was launched into prominence in 2006.
2. Charlie Savage, Introduction: The Last Word? The Constitutional Implications of Presidential Signing Statements, 16 WM. & MARY BILL RTS. J. 1, 2 (2007). Since then, as this article explores, the minor explosion of interest in the current administration's use of presidential signing statements has opened up the field to an active and wide-ranging debate about presidential power and the interplay of the three branches and the historical, political, and constitutional implications surrounding the device.
3. See, e.g.. Symposium, The Last Word? The Constitutional Implications of Presidential Signing Statements, 16 WM. & MARY BILL RTS J 1 (2007).
4. Schoolhouse Rock, Tm Just a Bill, http://www.school-house-rock.com/Bill. html (last visited July 29, 2008).
5. Editorial, Don't Veto, Don't Obey, N.Y. TIMES, June 22, 2007, at A20.
6. As further detailed below, in 2006, articles discussing President Bush's frequent use of OPSSs when signing laws with which he disagreed began appearing in the popular media, in political debate, and scholarly literature. Early commentators included defenders of the administration's use of the device. E.g., Curtis A. Bradley & Eric A. Posner, Presidential Signing Statements and Executive Power, 23 CONST. COMMENT. 307 (2006).
7. Letter from James Monroe to the Senate of the United States (Jan. 17, 1822), in 2 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 680 (James D. Richardson ed., 1897) [hereinafter RICHARDSON COMPILATION];
8. Letter from James Monroe to the Senate of the United States (Apr. 13, 1822), in 2 RICHARDSON COMPILATION, supra, at 698 (explaining position on constitutional issues at greater length);
9. see Kelley, supra note 1, at 5 (identifying Monroe's letter as first OPSS);
10. see also Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power To Say What the Law Is, 83 GEO. L.J. 217, 327 (1994) (identifying Monroe's letter as an early instance of interbranch conflict over interpretation of laws). Others dispute this characterization of Monroe's actions.
11. CHRISTOPHER N. MAY, PRESIDENTIAL DEFIANCE OF "UNCONSTITUTIONAL" LAWS: REVIVING THE ROYAL PREROGATIVE 116 & n.103 (1998)
12. (citing Paulsen, supra).
13. Letter from Andrew Jackson to the Senate and House of Representatives of the United States (May 30, 1830), in 3 RICHARDSON COMPILATION, supra note 5, at 1046;
14. see Douglas W. Kmiec, OLCs Opinion Writing Function: The Legal Adhesive for a Unitary Executive, 15 CARDOZO L. REV. 337, 345 (1993) (describing Jackson's letter as first OPSS).
15. Letter from John Tyler to the House of Representatives (June 25, 1842), in 5 RICHARDSON COMPILATION, supra note 5, at 2012;
16. Letter from James Buchanan to the House of Representatives (June 25, 1860), in 7 id. at 3128;
17. Letter from U.S. Grant to the House of Representatives (Aug. 14, 1876), in 10 id. at 4331.
18. See MAY, supra note 5, at 103 (citing Buchanan OPSS as first use);
19. Frank B. Cross, The Constitutional Legitimacy and Significance of Presidential "Signing Statements," 40 ADMIN. L. REV. 209, 210-11 (1988) (citing examples from Tyler and Grant presidencies);
20. Louis Fisher, Signing Statements: Constitutional and Practical Limits, 16 WM. & MARY BILL RTS. J. 183, 189-90 (2007) (citing Tyler, a different example from Buchanan administration, and Grant).
21. Leah Halper, Opinion, Constitution Day with Real Life Lessons, CHRISTIAN SCI. MONITOR, Aug. 4, 2006, at 9;
22. see also AM. BAR ASS'N, TASK FORCE ON PRESIDENTIAL SIGNING STATEMENTS & THE SEPARATION OF POWERS DOCTRINE, RECOMMENDATION AND REPORT 2 (2006), available at http://www.abanet.org/op/signingstatements/aba-final-signing-statements- recommendation-report-7-24-06.pdf thereinafter ABA TASK FORCE REPORT] (summarizing early reactions to news accounts regarding Bush administration's use of OPSSs).
23. Brad Waites, Note, Let Me Tell You What You Mean: An Analysis of Presidential Signing Statements, 21 GA. L. REV. 755, 760 (1987) (footnotes omitted). Waites's option (2), signing under protest, describes the route that most closely resembles an OPSS, at least in its milder forms. As described by Waites, such protest might express legal doubts or policy objections to a provision, or even pledge nondefense in the event of litigation over the enforceability of the law. But the issue at the time, as framed by Waites, focused on the device's function in influencing further congressional action or the courts' interpretation, rather than as a potential mechanism for direct and unilateral action by the executive branch.
24. Id. at 761-66.
25. H.R. Doc. No. 108-93 (2003). The most recent edition of this brochure was issued in 2003, and the publication has been a standard part of the Library of Congress's reference resources since 1953.
26. Id. at v. The current, twenty-third edition of the brochure is posted in HTML and PDF formats at the Library of Congress's web site. LIBRARY OF CONGRESS, HOW OUR LAWS ARE MADE (Charles W. Johnson ed., 2003), http://thomas.loc. gov/home/lawsmade.toc.html.
27. Id. at 51-53. The Library of Congress account omits the second option that Waites envisions, signing under protest.
28. See, e.g.. THE PRESIDENCY A TO Z 463-64 (Gerhard Peters & John T. Woolley eds., Michael Nelson advisory ed., 4th ed. 2008);
29. Andrew Rudalevige, Unilateral Powers of the Presidency, in 1 GUIDE TO THE PRESIDENCY 511, 520-21 (Michael Nelson ed., 4th ed. 2008);
30. see also Mark E. Byrnes, The President and the Bureaucracy, in 2 GUIDE TO THE PRESIDENCY, supra, at 1459, 1498-99.
31. By contrast, previous editions of both of these Congressional Quarterly Press reference books lack any prominent mention of the signing statement. THE PRESIDENCY A TO Z 416 (Michael Nelson advisory ed., 3d ed. 2003) (no entry on signing statements);
32. GUIDE TO THE PRESIDENCY, at Index 64 (Michael Nelson ed., 3d ed. 2002) (no index entry on signing statements).
33. Several authors participating in the 2007 symposium focusing on presidential signing statements (Symposium, supra note 1) summarize the history of this decision.
34. See Christopher S. Kelley, A Matter of Direction: The Reagan Administration, the Signing Statement, and the 1986 Westlaw Decision, 16 WM. & MARY BILL RTS. J. 283 (2007);
35. see also Phillip J. Cooper, Signing Statements as Declaratory Judgments: The President as Judge, 16 WM. & MARY BILL RTS. J. 253, 255-61 (2007);
36. Neil Kinkopf, Signing Statements and Statutory Interpretation in the Bush Administration, 16 WM. & MARY BILL RTS. J. 307, 307 (2007).
37. The two major examinations of the presidential signing statement dating from this era are extensive essays in law reviews, one by a law student, and the other by two attorneys. Waites, supra note 9;
38. 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).
39. Panel Discussion, Presidential Lawmaking Powers: Vetoes, Line Item Vetoes, Signing Statements, Executive Orders, and Delegations of Rulemaking Authority, 68 WASH. U. L.Q. 533, 550 (1990) (comments of Theodore Olson).
40. Id. at 547 (Theodore Olson). As Judge Easterbrook explained in the discussion portion of the symposium, in his view, a signing statement "is not itself authority for later action," but is simply "useful in demonstrating understandings of the law's meaning and scope," and like a statement by a congressional committee is "not entitled to much weight."
41. Id. at 552-53 (comments of Frank Easterbrook).
42. See, e.g., Halper, supra note 8.
43. A. Christopher Bryant, Presidential Signing Statements and Congressional Oversight, 16 WM. & MARY BILL RTS. J. 169, 169 (2007).
44. To compile all data about popular press attention to the presidential signing statement issue, the following search was performed on LexisNexis with date limitations for 2005, 2006, and 2007: "signing statement" W/S (presiden! OR administration). A small number of the results produced by the LexisNexis search were items that did not discuss presidential signing statements as that term is used in this article, since the search algorithm in LexisNexis ignores noise words within phrase searches. Thus, for example, the above search retrieves hits such as "the president, in signing the statement....." Because such false drops represented only a handful of the items retrieved for the 2006 search, the data suffice as a rough metric of the surge of popular press interest in this formerly erudite topic. Due to differences in source coverage, the results produced by searching Westlaw were different, but the dramatic rise in interest reflected by the LexisNexis search is similarly demonstrated by the Westlaw results. The identical searches performed in Westlaw's ALLNEWS database retrieve 1243 news items in 2006, compared to only nine in 2005.
45. Charlie Savage, Bush Challenges Hundreds of Laws: President Cites Powers of His Office, BOSTON GLOBE, Apr. 30, 2006, at Al [hereinafter Savage, Bush Challenges];
46. Charlie Savage, Three Democrats Slam President over Defying Statutes, BOSTON GLOBE, May 2, 2006, at A2. The previous spike in press coverage (accounting for 259, or another 17%, of the articles in the LexisNexis database from 2006) occurred in January 2006 and, based upon examination of the headlines of the articles appearing in that month, largely resulted from ( 1 ) news about the OPSS on the McCain Amendment (the Detainee Treatment Act of 2005), passed as Title X of the Department of Defense Appropriations Act of 2006, Pub. L. No. 109-148, 119 Stat. 2680, 2739 (codified at 10 U.S.C. § 801 note, 28 U.S.C. § 2241, and 42 U.S.C. § § 2000dd, 2000dd-1); and (2) publicity around the confirmation hearings on Supreme Court nominee Samuel Alito, who as a Department of Justice lawyer under President Reagan helped in the initial efforts of the White House to have presidential signing statements published in USCCAN
47. (as described by Cooper, supra note 13, at 260-61).
48. E.g., Charlie Savage, Bush Could Bypass New Torture Ban, BOSTON GLOBE, Jan. 4, 2006, at Al;
49. Patty Reinert. Alito's Future Hinges on Past, HOUSTON CHRON., Jan. 8, 2006, at Al.
50. The ABA credits Savage, Bush Challenges, supra note 20,
51. with setting off "a major national controversy." ABA TASK FORCE REPORT, supra note 8. at 2 & n. 1. Savage would later win a 2007 Pulitzer Prize for his series of reports on the signing statement issue.
52. David Mehegan, Globe Writer Wins Pulitzer for National Reporting, BOSTON GLOBE, Apr. 17, 2007, at A1.
53. E.g., 152 CONG. REC. S8189 (daily ed. July 25, 2006) (statement of Sen. Leahy) ("[T]he Bush-Cheney Administration .. . continues its abuse of 'signing statements' as part of a systematic pursuit of power without the checks and balances inherent in our constitutional democracy.");
54. Charlie Savage, Specter Takes Step to Halt Bush Signing Statements, BOSTON GLOBE, July 27, 2006, at A3 ("If the president is permitted to rewrite the bills that Congress passes and cherry-pick which provisions he likes and does not like, he subverts the constitutional process designed by our framers.") (quoting Sen. Specter).
55. The Use of Presidential Signing Statements: Hearing Before the S. Comm. on the Judiciary, 109th Cong. (2006).
56. Charlie Savage, Schumer Questions Nominee's Theory on Executive Role, BOSTON GLOBE, Jan. 10, 2006, at A6.
57. Savage, supra note 22.
58. See Fisher, supra note 7, at 208-09 (noting some of 109th Congress's efforts to restrict presidential signing statements).
59. Savage, supra note 1, at 1.
60. Ronald A. Cass & Peter L. Strauss, The Presidential Signing Statements Controversy, 16 WM. & MARY BILL RTS. J. 11, 11 (2007).
61. James D. Woolley, Letter to the Editor, A Recipe For Seizing Power, WICHITA EAGLE, Aug. 1, 2006, at A2.
62. See, e.g., id.;
63. Halper, supra note 8.
64. See Statement on Signing the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006, 41 WEEKLY COMP. PRES. DOC. 1918, 1919 (Dec. 30, 2005).
65. Statement on Signing the USA PATRIOT Improvement and Reauthorization Act of 2005, 42 WEEKLY COMP. PRES. DOC. 425, 425-26 (Mar. 9, 2006).
66. See, e.g., United States v. Ventre, 338 F.3d 1047, 1053-54 (9th Cir. 2003) (citing both House Report and signing statement by President Bill Clinton);
67. Taylor v. Heckler, 835 F.2d 1037, 1044 n.17 (3d Cir. 1987) (declining to rely on presidential signing statement cited by agency, but without "determin[ing] what weight, if any, a presidential signing statement deserves in the process of statutory interpretation"). A recent student-authored piece summarizes: "When federal courts refer to signing statements, they often cite to them as a minor piece of legislative history or use them as one factor in analyzing a particular statute. Rarely, if ever, do courts use the signing statement's interpretation of legislation as controlling."
68. Nicholas J. Leddy, Comment, Determining Due Deference: Examining When Courts Should Defer to Agency Use of Presidential Signing Statements, 59 ADMIN. L. REV. 869, 871-72 & nn.9-11 (2007) (collecting cases);
69. see also Bradley & Posner, supra note 4, at 345 n.130 (same);
70. Note, Context-Sensitive Deference to Presidential Signing Statements, 120 HARV. L. REV. 597, 600 & nn.20-26 (2006) (same).
71. E.g., United States v. Lopez, 514 U.S. 549, 561 n.3 (1995) (quoting President George H.W. Bush's presidential signing statement that asserted Gun-Free School Zone Act improperly federalized a policy matter best left to states). A Third Circuit opinion took an implicit jab at such use of presidential signing statements by noting "in passing" a purely hortatory presidential signing statement in which the same President singled out for praise another law that similarly federalized a state criminal matter. United States v. Bishop, 66 F.3d 569, 585 n.24 (3d Cir. 1995). There, in upholding the federal carjacking statute against a federalism argument, the Third Circuit noted that the presidential signing statement took on significance only because the Lopez Court had similarly relied on a presidential signing statement in striking down the Gun-Free School Zone Act on federalism grounds. This battle of footnotes perhaps demonstrates the inaptness of presidential signing statements for statutory interpretation since, often for political reasons-such as when a federal carjacking statute was politically popular enough to gain presidential backing without consideration of the federalism issues potentially raised-they can imply radically inconsistent positions on constitutional issues. In any event, neither decision relied centrally on a presidential signing statement, and neither opined on the legitimacy of using presidential signing statements for statutory interpretation.
72. See Kelley, supra note 13, at 300-01
73. (citing INS v. Chadha, 462 U.S. 919 (1983)
74. and Bowsher v. Synar, 478 U.S. 714(1986)). The Bowsher Court not only cited President Reagan's signing statement, but relied on the same reasoning employed by the administration to rule that certain provisions of the Gramm-Rudman balanced budget amendment violated the separation of powers. Compare Bowsher v. Synar, 478 U.S. 714, 719 n.1, 734-36 (1986) with Statement on Signing the Bill Increasing the Public Debt Limit and Enacting the Balanced Budget and Emergency Deficit Control Act of 1985, 2 PUB. PAPERS 1471-72 (Dec. 12, 1985). The Chadha opinion, in finding unconstitutional a provision that gave Congress the power to oversee and veto the actions of administrative agencies, referred to the long history of signing statements (by eleven Presidents, from Wilson to Reagan) who had "gone on record at some point to challenge congressional vetoes as unconstitutional." INS v. Chadha, 462 U.S. 919, 942 n.13 (1983).
75. U.S. GOV'T ACCOUNTABILITY OFFICE, PRESIDENTIAL SIGNING STATEMENTS ACCOMPANYING THE FISCAL YEAR 2006 APPROPRIATIONS ACTS 1 (2007), available at http://www.gao.gov/decisions/appro/ 308603 .pdf [hereinafter GAO PSS REPORT].
76. Savage, supra note 1, at 4.
77. Nelson Lund, Presidential Signing Statements in Perspective, 16 WM. & MARY BILL RTS. J. 95, 108 (2007) ("I believe it is unlikely that the agencies' behavior was affected by the President's constitutional objections."). Although he concedes a potential shortcoming of the GAO report in avoiding assessment of agency compliance with OPSSs invoking national security or foreign relations concerns,
78. id. at 107, which have been some of the most broadly used and highly criticized of President Bush's OPSSs, Professor Lund deconstructs the agencies' behavior in the case of each of the six provisions identified by the GAO to conclude that presidential objections were not the cause of any noncompliance.
79. Id. at 108-10.
80. Leddy, supra note 33, at 875 n.27 (citing example where the FDA disregarded President Reagan's objections stated in an OPSS);
81. see also id. at 881-86 (summarizing several examples of agency reliance, in whole or in part, on OPSSs from administrations of George H.W. Bush, Bill Clinton, and George W. Bush).
82. Seen in this light, even those who are opposed to the expansive notion of executive power often asserted in OPSSs arguably should welcome the device as throwing a salutary light on the intentions of the executive branch. The President has other, potentially less transparent, ways to resist, subvert, or avoid enacted laws, and thus, as one article reasons: "The attack on the institution of signing statements is puzzling. Signing statements provide public information about a president's views of a statute and thus would seem to promote dialogue and accountability." Bradley & Posner, supra note 4, at 310.
83. See Charlie Savage & James W. Pindell, A Tactic of Bush's on Bills Is Assailed, BOSTON GLOBE, NOV. 20, 2007, at A14.
84. See Charlie Savage, Candidates on Executive Power: A Full Spectrum, BOSTON GLOBE, Dec. 22, 2007, at A1.
85. Certainly, publicity regarding the administration's continued use of presidential signing statements has not flagged since 2006. The searches described, supra note 19, reveal that last year 1234 news items in the LexisNexis database (835 items in Westlaw) mentioned presidential signing statements, with a recent count for 2008 (over 670 items as of the end of September on LexisNexis, and over 340 on Westlaw) showing continued attention to the issue.
86. See Garber & Wimmer, supra note 14;
87. 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);
88. Waites, supra note 9.
89. See Kelley, supra note 1;
90. Killenbeck, supra note 44;
91. Kmiec, supra note 6.
92. See PHILLIP J. COOPER, BY ORDER OF THE PRESIDENT: THE USE AND ABUSE OF EXECUTIVE DIRECT ACTION 199-230 (2002);
93. Dawn E. Johnsen, Presidential Non-Enforcement of Constitutionally Objectionable Statutes. LAW & CONTEMP. PROBS., Winter/Spring 2000, at 7;
94. Kelley, supra note 1.
95. See Phillip J. Cooper, George W. Bush, Edgar Allan Poe, and the Use and Abuse of Presidential Signing Statements, 35 PRESIDENTIAL STUD. Q. 515 (2005);
96. Neil Kinkopf, Signing Statements and the President's Authority to Refuse to Enforce the Law, ADVANCE: J. ACS ISSUE GROUPS, Spring 2007, at 5, available at http://www.acslaw.org/ files/Kinkopf-Signing%20Statements-Jun%202006-Advance%20 Vol%201.pdf.
97. For example, Bradley & Posner, supra note 4, at 323-25 & tbl. 1, compare the Carter through George W. Bush administrations by proposing a number of different methods of counting or assessing the impact of presidential signing statements as used by various Presidents.
98. Savage, Bush Challenges, supra note 20;
99. see also Charlie Savage, Panel Chides Bush on Bypassing Laws: ABA Group Cites Limits to Power, BOSTON GLOBE, July 24, 2006, at Al ("Bush has used these so-called signing statements to challenge more than 750 laws that have been enacted since he took office . . . .").
100. See, e.g., Editorial, Arsenal of Secrecy, ST. LOUIS POST-DISPATCH, Feb. 19, 2008, at B6 ("[T]he 43rd president has appended 'signing statements' to more than 750 bills . . . .");
101. Rhonda Chriss Lokeman, Commentary, White House Treading on Other Brunches. KAN. CITY STAR, July 31, 2006, at B11 ("[H]e has issued more than 750 signing statements . . . .");
102. Editorial, Veto? Who Needs a Veto?, N.Y. TIMES, May 5, 2006, at A22 ("Charlie Savage at The Globe reported recently that Bush had issued more than 750 'presidential signing statements' . . . .");
103. Charles P. Milner, Letter to the Editor, Remember When?, SANTA FE NEW MEXICAN, Aug. 4, 2006, at A7 ("He has used this device more than 750 times . . . .").
104. As the Boston Globe clarified, the phrase "750 laws" referred not to whole bills, but individual statutes, which "were provisions contained in about 125 bills." Correction, For the Record, BOSTON GLOBE, May 4, 2006, at A2. Debate continues both as to how many OPSSs have been issued and how many laws or provisions affected, and as to which number is the appropriate metric for comparing presidents.
105. See, e.g., Kelley, supra note 13, at 286 & n.21 (counting 1150 provisions since 2001, based on "my own database" of presidential signing statements);
106. Kinkopf, supra note 13, at 308 & n.5 (1042 provisions as of the end of 2006, citing one index that counted both the number of provisions challenged on constitutional grounds and the number of constitutional objections raised);
107. Bradley & Posner, supra note 4, at 324. (President Bush "is on the high end but still not outside the historical norm" when counting the bare number of bills per year to which he has appended presidential signing statements expressing constitutional objections, but "has clearly departed from the norm by frequently issuing challenges to numerous statutory provisions within a single signing statement.")
108. See, e.g., ABA TASK FORCE REPORT, supra note 8, at 14-15 n.52.
109. Professors Neil Kinkopf and Peter Shane have compiled a detailed, chronological table listing the documents they consider to be OPSSs by President Bush. NEIL KINKOPF & PETER SHANE, INDEX OF PRESIDENTIAL SIGNING STATEMENTS: 2001-2007 (2007), http://www.acslaw.org/node/5309 (synopsis and link to index). For the period leading up to the Savage articles that seem to have originated the 750 OPSSs figure-that is, from the beginning of the first George W. Bush term through and including the OPSS issued March 9, 2006, on the USA PATRIOT reauthorization-a manual count of the items listed in the second column ("Cite to Signing Statement") shows some 101 individual statements,
110. see id. at 1-139; whereas the Boston Globe described (without citation to a source) the number as 125. Correction, supra note 51.
111. Some limited collections are publicly accessible. U.C. Santa Barbara hosts a useful web site, created as a collaboration between John Woolley and Gerhard Peters, that includes a collection of presidential signing statements going back to President Hoover. The American Presidency Project, Document Archive: Presidential Signing Statements, http://www.presidency.ucsb.edu/ signingstatements.php (last visited July 30, 2008). More detailed finding aids exist for identifying signing statements by the Bush administration alone, but these are not useful in locating other Presidents' signing statements. As noted above, KINKOPF & SHANE, supra note 53, have created an annotated index that lacks full text of the signing statements but provides citations to full text. Similarly, an Oklahoma City attorney has established a web site containing a searchable collection of presidential signing statements by Bush.
112. Joyce A. Green, Signing Statements: George W Bush, http://www. coherentbabble.com/signing statements/signstateann.htm (last visited July 30, 2008). Tantalizingly, Professor Kelley has assembled his own database of presidential signing statements going back to President Monroe, but it does not appear to be publicly available.
113. Kelley, supra note 13, at 286 n.21.
114. This formulation is used in recent editions of both the Weekly Compilation of Presidential Documents and Public Papers of the Presidents of the United States. See, e.g.. Statement on Signing the 21st Century Department of Justice Appropriations Authorization Act, 2 PUB. PAPERS 2010, 2010-11 (Nov. 2, 2002);
115. Statement on Signing the 21st Century Department of Justice Appropriations Authorization Act 38 WEEKLY COMP. PRES. DOC. 1971 (Nov. 2, 2002). But older editions vary, both volume to volume and within volumes.
116. Compare, e.g.. Energy Supply and Environmental Coordination Act of 1974: Statement by the President upon Signing the Bill into Law, 10 WEEKLY COMP. PRES. DOC. 722 (June 26, 1974),
117. with Summer Jobs Programs for Youth: Statement by the President After Signmg Bill Funding the Programs, 10 WEEKLY COMP. PRES. DOC. 599 (June 11, 1974).
118. Some of the earlier presidential signing statements collected by Woolley and Peters's web site fall under such a heading. For example, the two Nixon-era presidential signing statements cited supra note 55 are captioned, respectively "Statement About Signing the Energy Supply and Environmental Coordination Act of 1974" and "Statement About Signing an Appropriations Bill Including Funds for Summer Jobs Programs for Youth."
119. The American Presidency Project, supra note 54.
120. The White House's web site - which currently posts many signing statements as releases from the Office of the Press Secretary - is more widely and readily accessible and more quickly updated than publications like the Public Papers of the Presidents of the United States, or often even the Weekly Compilation of Presidential Documents, but typically uses more informal descriptions, and does not employ standard captioning, making it more difficult to identify and search for signing statements.
121. See, e.g., George W. Bush, Statement by the President, President Signs Justice Approps Authorization Act, Nov. 4, 2002, http://www.whitehouse.gov/news/releases/2002/l 1/20021104-3.html.
122. See e g Ryan McManus, Note, Sitting in Congress and Standing in Court: How Presidential Signing Statements Open the Door to Legislator Lawsuits, 48 B.C. L. REV. 739, 759 n.170 (2007)
123. (citing ABA TASK FORCE REPORT, supra note 8, at 7);
124. Kelley, supra note 13, at 283 n.6
125. (citing Christopher S. Kelley, The Unitary Executive and the Presidential Signing Statement 57 (2003) (unpublished Ph.D. dissertation, Miami University), available at http://www.ohiolink.edu/etd/view.cgi?miami1057716977).
126. The statute President Monroe cites in the letter is found at 3 Stat. 615, 615-16 (1821).
127. See Letter from James Monroe to the Senate of the United States, supra note 5. As indicated supra notes 5-7, the Monroe letters, like the Jackson signing statement and other presidential documents from the Washington through Wilson presidencies, can be found in the RICHARDSON COMPILATION, supra note 5. This chronological compilation, along with further editions extending coverage through the Coolidge administration, is available at many academic libraries and law libraries in print and on the HeinOnline database (in the U.S. Presidential Library), but can be unwieldy to search because of the captioning problem as well as the lack of uniform or boilerplate language used in early OPSSs, limitations of the database's search mechanism, and lack of detailed topical indexing. In print, the compilation is also available at some large public libraries. Adding to the confusion, the differing pagination of various editions of this compilation means that citations found in articles cannot always be easily found in the edition available to a researcher, and the precise date of the document is a key element, since the compilations are ordered chronologically. All citations to the Richardson Compilation in this article are to the version available on HeinOnline.
128. Kelley, supra note 1, at 4.
129. For example, since the Supreme Court's decision in INS v. Chadha, 462 U.S. 919 (1983), Congress has passed numerous laws requiring congressional pre-approval of executive department actions, in direct contravention of Chadha.
130. See GAO PSS REPORT, supra note 36, at 17-19 (seventy individual provisions challenged under the Chadha rationale by President Bush in eleven appropriations acts). Presidential "defiance" of such provisions is arguably unproblematic since any attempted enforcement would be stricken under existing constitutional precedent and "all Presidents find [such provisions] troubling."
131. Cass & Strauss, supra note 28, at 15;
132. see also Kinkopf, supra note 13, at 312.
133. U.S. CONST, art. II, § 1, cl. 8.
134. Id. § 3.
135. See supra 1 5.
136. MAY, supra note 5, at 116.
137. E.g., ABA TASK FORCE REPORT, supra note 8;
138. but see Paulsen, supra note 5.
139. Kinkopf, supra note 47, at 5.
140. Fisher, supra note 7, at 210.
141. Peter M. Shane, Presidential Signing Statements and the Rule of Law as an "Unstructured Institution," 16 WM. & MARY BILL RTS. J. 231, 239 (2007).
142. ABA TASK FORCE REPORT, supra note 8, at 17
143. (citing Kinkopf, supra note 47, at 6,
144. and Cooper, supra note 47, at 521).
145. Kinkopf, supra note 13, at 311 ("They are stated in such vague and conclusory terms that they offer nothing useful to the enterprise of interpretation.").
146. JOE MOREHEAD, INTRODUCTION TO UNITED STATES GOVERNMENT INFORMATION SOURCES 161-62 (6th ed. 1999).
147. Kinkopf, supra note 47, at 1.
148. Kelley, supra note 1, at 2.
149. Joyce A. Green, About This Website: Numbering for Signing Statements, Signing Statements: George W Bush, http://www.coherentbabble.com/ signingstatements/about.htm#Numbering (last visited Aug 4, 2008) (referring to http://www.whitehouse.gov).
150. Groups Criticize Bush's PATRIOT Act Signing Statement, AM. LIBR., May 2006, at 17, 17. The notice somewhat blandly described a signing statement as "an official document in which a president spells out his understanding of a bill he is signing into law."
151. Id. A slightly longer version of the item appeared two months later. Groups Criticize Bush's PATRIOT Act Signing Statement, NEWSL. ON INTELL. FREEDOM, July 2006, at 175, 175, available at https://members.ala.org/nif/v55n4/patriot.html.
152. Some libraries have added full-length research guides about presidential signing statements. E.g., Georgetown Law Library, Presidential Signing Statements Research Guide, http://www.ll.georgetown.edu/guides/ presidentialsigningstatements.cfm (last visited Aug. 4, 2008);
153. Law Library of Congress, Research Help: Presidential Signing Statements, http://www.loc.gov/law/help/statements.html (last visited Aug. 4, 2008). Others have included some guidance on presidential signing statements within existing guides on federal legislative history.
154. E.g., Marquette University Law Library, Federal Legislative History: A Research Guide, http://law.marquette.edu/cgi-bin/site.pl? 2130&pageID=3543 (last visited July 30, 2008).
155. Twenty-First Century Department of Justice Appropriations Authorization Act of 2002, Pub. L. No. 107-273, sec. 202, 116 Stat. 1758, 1771 (amending 28 U.S.C. § 530D).
156. Statement on Signing the 21st Century Department of Justice Appropriations Authorization Act, 2 PUB. PAPERS 2010, 2010 (Nov. 2, 2002).
157. ABA TASK FORCE REPORT, supra note 8, at 5.
158. Presidential Signing Statements Act of 2006, S. 3731, 109th Cong. § § 5-6 (2006) (giving Senate or House standing to file suit as to "legality" of an OPSS, or to intervene in any action involving construction or constitutionality of any law to which an OPSS was attached).
159. American Freedom Agenda Act of 2007, H.R. 3835, 110th Cong. § 6 (2007) (giving House and Senate, collectively, standing to bring declaratory action on constitutionality of OPSSs);
160. see also Presidential Signing Statements Act of 2007, S. 1747, 110th Cong. § 5(a) (2007) (giving Congress right to participate as amicus curiae in any case regarding construction or constitutionality of law to which presidential signing statement was attached);
161. Presidential Signing Statements Act of 2007, H.R. 3045, 110th Cong. § 5(a) (2007) (same).
162. See 152 CONG. REC. S8271 (daily ed. July 26, 2006) (statement of Sen. Specter) ("[I]t permits the Congress to seek what amounts to a declaratory judgment on the legality of Presidential signing statements that seek to modify - or even to nullify - a duly enacted statute.").
163. Standing could be difficult to establish even if Congress passed a
164. See Michèle Estrin Gilman, Litigating Presidential Signing Statements, 16 WM. & MARY BILL RTS. J. 131, 133-37 (2007). Yet another commentator questions the wisdom of putting all of Congress's oversight eggs in the single basket of judicial review, arguing that Congress's other powers of influence over the executive branch (notably its purse string power) are more effective checks and balances than a declaratory action would be.
165. See Bryant, supra note 18, at 171-75, 181-82.
166. Eg Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring) ("The greatest defect of legislative history is its illegitimacy.");
167. see also Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 783 n.12 (2000) (quipping that the dissent's reliance on a committee report demanded "even a greater suspension of disbelief than legislative history normally requires");
168. City of Chi. v. Envtl. Def. Fund, 511 U.S. 328, 337 (1994) ("[I]t is the statute, and not the Committee Report, which is the authoritative expression of the law . . . .").
169. Hamdan v. Rumsfeld, 548 U.S. 557, 666 (2006) (Scalia, J., dissenting).
170. See Charlie Savage, Scalia's Dissent Gives 'Signing Statements ' More Heft, BOSTON GLOBE, July 15, 2006, at A3.
171. See supra ¶ 21.
172. H.R.J. Res. 89, 109th Cong. (2006) (requiring President to notify Congress, including reasons tor objection, of any determination to ignore an enacted provision); H.R.J. Res. 87, 109th Cong. (2006) (same).
173. Fisher, supra note 7, at 209.
174. Congressional Lawmaking Authority Protection Act of 2007, H.R. 264, 110th Cong. § 3 (2007) (prohibiting use of public funds "to produce, publish, or disseminate any statement made by the President contemporaneously with the signing of any bill or joint resolution presented for signing by the President" where the statement is "inconsistent with" the intent of Congress);
175. H.R. 5486, 109th Cong. § (2006) (prohibiting the use of public funds to "produce, publish, or disseminate" any presidential statement, not limited to those that are inconsistent with the intent of Congress).