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1. What are presidential signing statements? When a United States President signs legislation enacted by Congress, he may issue a written statement commenting on his actions. Signing statements can be merely ceremonial in nature, praising or criticizing the law or lawmakers, or remarking on the importance of the issue addressed by the law. Such signing statements are often called "rhetorical" signing statements. However, other signing statements may challenge Congress's authority to act or assert that that the president will not enforce the law as written. This type of signing statement is often called a "constitutional" signing statement: a president will object to a provision of law by citing a provision of the Constitution, or by citing a Supreme Court ruling interpreting the Constitution, or by bare assertion (without citation to authority) that the law offends the Constitution or invades the power of the Executive. Please note that other presidential documents appearing on the White House website -- especially presidential remarks delivered at bill signing ceremonies -- are frequently misidentified as signing statements. This website presents a document as a signing statement only if the Weekly Compilation of Presidential Documents, a publication issued by the Government Printing Office (GPO), categorizes the document as a signing statement.
In April, 2007, the Library of Congress posted a useful short guide to signing statements.
Here's a very brief explanation
of signing statements from Cheryl Nyberg, at the University of Washington School of Law. 2. Where can I find presidential signing statements? This website collects and presents all signing statements issued by George W. Bush since he was inaugurated. Most (but not all) of President Bush's signing statements are available, free, on the official White House website. However, unlike Executive Orders, Proclamations, or press releases, presidential signing statements are not numbered or indexed on the White House website. Further, because the documents use language that is typically familiar or useful only to scholars and attorneys, plain language word searches (such as "torture" or "Sarbanes-Oxley") do not always bring up signing statements relating to that topic. Signing statements are presented in a
more orderly fashion in the "Weekly Compilation of Presidential Documents (WCPD)," published by the Government Printing Office (GPO). However, to locate all of the signing statements in the WCPD between January of 2001 and September of 2008, one must examine over 380 files. This website gives four sources for the Bush signing statements. It: (1) sets out (and fixes) the full text of each signing statement as published on the White House web site; (2) provides a live link to the same statement at the White House website; (3) provides a live link to the plain text version of the signing statement at GPO's online WCPD; and (4) provides PDF files of the statements (downloaded from the GPO's WCPD and stored here). Multiple-sourcing is provided for two reasons. First, it helps readers verify the text of the signing statements. Second, the exact number of statements has been somewhat controversial. Providing multiple, official sources on this website has helped settle the question. 2.a. Where can I get signing statements issued by presidents other than George W. Bush? The American Presidency Project has the signing statements of all United States Presidents since 1929. (Thanks to Bill Ford, of the University of Chicago Law School and the ELS blog, for this link.) While the American Presidency Project provides text of the signing statements of all presidents since 1929, it does not provide the text of the laws affected by the signing statements. This website posts only George W. Bush's signing statements. However, because the statements can be difficult to understand without the laws to which they refer, this site provides the full text of the laws affected by George W. Bush's signing statements. In sum, if you want to see Bill Clinton's and Ronald Reagan's signing statements, or if you don't need access to the text of the affected laws, the American Presidency Project's web site is a better choice. If you want to read the laws affected by George W. Bush's signing statements, this website is a better choice. 3. How many statements has George W. Bush signed?
a. Summary of Conclusions Number of Signing Statement Documents: If all signing statements have been made available to the GPO's Weekly Compilation, George W. Bush has issued 157 signing statement documents since taking office. For a list of the signing statements, click here. Here is my count by year of issuance:
Number of Laws Affected by Signing Statements: We now have two independent academic counts of the number of laws challenged in the Bush signing statements. Based on those two counts, it seems most accurate to report that George W. Bush has issued 157 signing statements challenging over 1,100 provisions of federal law. The full list of the signing statements is here.
b. Counting the Documents Identified as "Signing Statements" In 2006, there was a fair amount of controversy about how many signing statements had been issued by the Bush White House. In June of 2006, the Senate Judiciary Committee held hearings concerning George W. Bush's use of signing statements. Office of Legal Counsel Deputy Assistant Attorney General Michelle Boardman, who identified herself as the Department of Justice's expert on signing statements, represented the Bush administration at the hearing. Ms. Boardman's remarks to the Committee were somewhat unclear and a bit clouded by attempts to categorize the statements. However, she seems to have indicated that there were 110 signing statements (or, by an alternate reading of her words, perhaps as many as 126), even though this website had already posted text for 140. See, e.g., John Dean, The Bush Administration's Adversarial Relationship with Congress -- as Illustrated by Its Refusal to Even Provide the Number of Signing Statements Issued by President Bush, FindLaw (July 14, 2006); Bush blocked probe, AG testifies: Senate examines wiretap program (Boston Globe, July 19, 2006) (Attorney General Gonzales contesting number of signing statements). O n 31 January 2007, the Department of Justice asserted that President Bush had signed only 126 "constitutional" signing statements. See, Statement of John P. Elwood, Deputy Assistant Attorney General, Office of Legal Counsel, United States to the House Judiciary Committee, to the House Judiciary Committee hearing on "Presidential Signing Statements under the Bush Administration" At the same hearing, Nicholas Quinn Rosenkranz, Associate Professor of Law, Georgetown University Law Center, asserted that "this topic has been plagued with false statistics." See, Statement of Nicholas Quinn Rosenkranz, to the House Judiciary Committee hearing on "Presidential Signing Statements under the Bush Administration" (see, especially, footnote 1, commenting extensively on number of signing statements and asserting that "President Bush has issued approximately 140 signing statements to date").By September of 2007, the confusion seems to have cleared when the Congressional Research Service reported that George W. Bush had issued 152 signing statements. See, CRS Report RL33667. My count squares with the CRS. Five signing statements have been issued since the CRS count of September, 2007. Three signing statements (2001-02, 2004-17, 2004-14) have been expressly identified as signing statements by the WCPD but cannot be found at the White House website. Two bills received two signing statements each: 2003-01 (for H.J. Res. 2) and 2004-14 (for H.R. 4200). One signing statement (2006-04) covers two bills (H.R. 3199 (P.L. 109-177) and S. 2271 (P.L. 109-178)). This website presents all of the signing statements that have appeared from January 19, 2001, through September 7, 2008 (9:21 a.m. Central) on the White House website and through August 25, 2008, in the Weekly Compilation of Presidential Documents. c. Counting the Number of Laws Challenged in Signing Statements Some writers treat each provision of law affected by a single signing statement document as a separate statement. Under this method, a single document that challenges 40 provisions of law is reported as 40 signing statements. In early 2006, Charlie Savage, of the Boston Globe, Phillip Cooper, PhD, Professor of Public Administration in the Hatfield School of Government at Portland State University, and Christopher Kelley, PhD, a political scientist at the University of Miami, examined the signing statement documents existing at that time and found challenges to about 750 Congressional enactments within those documents. For instance, Professor Kelley has found challenges to about 50 laws in a single bill-signing statement (for the Consolidated Appropriations Act of 2004). By Professor Kelley's more recent count, the Bush signing statements have challenged 1,167 provisions of law. In September of 2007, Neil Kinkopf, Associate Professor of Law at Georgia State University College of Law and former Special Assistant in the Office of Legal Counsel at the Department of Justice, issued a list of "every provision of a law objected to by the White House in a signing statement [between 2001 and 2007], the reason for the objection, and a link to the relevant signing statement." The list is available for download at the website for the American Constitution Society for Law and Policy. Professor Kinkopf's ambitious project demonstrated that President Bush's signing statements had, by that time, challenged more than 1,000 provisions of federal law. Some commentators have failed to update their numbers since the early-2006 Boston Globe article, and some continue to fail to distinguish between the signing statement documents and the number of laws challenged. Therefore, reports of 750 signing statements remain fairly common. At this point, it is more accurate to say that 157 signing statements challenge about 1,100 provisions in about 155 enactments.The GAO report of June 2007 took care to define how it counted provisions within acts, noting:
GAO Letter Opinion B-308603, Presidential Signing Statements Accompanying the Fiscal Year 2006 Appropriations Acts, p. 13 "Scope and Methodology" (June 18, 2007). This approach should be applauded, if for no reason other than that the method for the count is fully disclosed. Thus, if the GAO count differs from other reports, the public at least knows why and can adjust for the difference. d. Has George Bush Issued More Signing Statements Than Previous Presidents? Since signing statements first surfaced in the news and blogs, there have been many claims that George Bush has issued more signing statements than all previous presidents combined. In the most narrow and technical sense, this is untrue. If one merely counts the documents titled "signing statements," the Bush administration is not very different from previous recent administrations. However, this is the least useful or descriptive measure available.At least three other approaches are better, because they examine how various administrations have used signing statements.(i) The CRS Approach: Constitutional Objections To date, the CRS has offered the most useful comparison of recent administrations, by focusing on constitutional challenges raised in signing statements. This is both a substantive and quantitative analysis. In a "constitutional" signing statement, a president will object to a provision of law by directly citing a provision of the Constitution, or by citing a Supreme Court ruling interpreting the Constitution, or by bare assertion (without citation to authority) that the law offends the Constitution or invades the power of the Executive. A president may announce his intent to disregard the law due to claimed Constitutional infirmity, or he may announce that he will interpret the law to avoid the Constitutional difficulties that he perceives. By contrast, a "rhetorical" signing statement is ceremonial in nature, and usually praises the wisdom of the law or the lawmakers, or notes the importance of the issue addressed by the law. Or a rhetorical statement may criticize Congress or the enactment without challenging Congress's authority to act. For an example of a "rhetorical" signing statement, see President's Statement on S. 686, Allowing Federal Courts to Hear Claim of Terri Schiavo. For an example of a constitutional signing statement, see President's Statement on Energy Policy Act of 2005. In CRS Report RL33667, the Congressional Research Service compared the current administration's use of signing statements to the three prior administrations, reporting that:
(ii) Number of Laws Challenged in Signing Statements Although we now have two independent academic counts of how many provisions of law have been challenged in the Bush administration's signing statements, I have not found any studies that have counted the number of laws objected to by other administrations. This seems to be a gap in the research; these numbers would be helpful. (iii) Qualitative Differences Several analyses focus on how various presidents have used signing statements, as opposed to how many they've issued. These writings are a good place to start:
4. Who drafts the signing statements for President Bush? Several news articles have addressed this question. See, e.g., Cheney's Guy: Barely known outside Washington's corridors of power, David Addington is the most powerful man you've never heard of (May, 2006) (U.S. News and World Reports); Cheney aide is screening legislation: Adviser seeks to protect Bush power (May, 2006) (Charlie Savage, Boston Globe). Those who wish to explore the issue further should examine the administration's Statements of Administration Policy (SAPs). While a bill is pending in Congress, the Executive Branch may send Congress a SAP explaining the administration's position on the bill. SAPs are issued through the Office of Management & Budget (OMB) while the bill is being considered. The OMB may send a SAP to either chamber of Congress or to any committee or subcommittee. SAPs may praise a bill, express support, discourage passage, state Executive objections to specific provisions, or contain veto threats. Until the 110th Congress was seated, there was a strong correlation between language found in the Bush administration's signing statements and the objections and veto threats found in SAPs. Many signing statements repeated, verbatim or nearly verbatim, the language found in SAPs. Clearly, many SAPs served as templates for subsequent signing statements. For all bills that have been subjected to signing statements, I have provided the Bush administration's SAPs. The SAPs are indexed in the annotations as "Related Presidential Documents." (If the annotations do not show a SAP for a particular bill, it means that the administration has not posted a SAP for that bill in the OMB section of the White House website.) For testimony indicating that signing statements originate in the Justice Department and OMB and are reviewed by White House Staff Secretary's Office, see Confirmation Hearing on the Nomination of Brett Kavanaugh to be Circuit Judge for the District of Columbia Circuit, Hearing Before the Committee on the Judiciary, United States Senate, 109th Congress, 2nd Session Serial No. J–109–73 (May 9, 2006) (source: GPO website) (Sen. Arlen Specter (R-Pa) questioning the candidate concerning the origin and preparation of signing statements) (see, pp. 24 et seq.).If you're confused, you have good reason. Congress enacted two pieces of legislation concerning the treatment of detainees, and President Bush issued a signing statement for each. The first Detainee Treatment Act was contained in H.R. 2863, the "Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006." That bill (now Public Law 109-148) was signed on December 5, 2005. Click here for the signing statement for PL 109-148. The second Detainee Treatment Act was part of H.R. 1815, the "National Defense Authorization Act for Fiscal Year 2006." That bill (now Public Law 109-163) was signed on January 6, 2006. Click here for the signing statement for PL 109-163. A CRS report gives a good,
clear overview of these two acts:
CRS Report for Congress RL33655, Interrogation of Detainees: Overview of the McCain Amendment (updated September 25, 2006) (source: Federation of American Scientists). It does not appear that there was one. Please go here to read the White House Press Secretary's remarks to the press about this question. 7. Where is the signing statement for the Postal Accountability and Enhancement Act? For the signing statement asserting the Executive's right to open mail without a warrant, click here. Many scholars, lawyers, reporters, commentators, and members of Congress regard George W. Bush's use of signing statements as a constitutional crisis. Prominent individuals -- across the entire political spectrum -- have expressed concern that the Bush administration's use of signing statements is an attempt to recalibrate the balance of power among the three branches of the federal government, or to lay groundwork for Supreme Court precedent that could rewrite the law controlling the respective powers of the three branches. Non-partisan sources have suggested that the Bush administration is trying to alter our concept of presidential power and institutionalize a view of expansive executive authority. The following provides an overview of the issues. I have also provided a list of links for those who want more in-depth reading. B. Core Concepts and Short Civics Lesson for Laypersons Many scholars, lawyers, reporters, and members of Congress assert that President Bush has used signing statements to expand presidential power at Congress's expense. Our government has three branches. The Legislature's primary powers are to enact laws, and to control and disburse federal dollars. The Executive's primary powers are to administer (or "carry out," or "execute") the laws, and to command the military. The Judiciary's primary powers are to apply law to individual cases and controversies, and to ensure, by nullifying laws and government actions that offend the Constitution and laws, that government officials do not exceed their powers. All three branches must, in practical and logistical terms, interpret the Constitution, case law, and statutes to perform their duties faithfully. However,
when such issues come before the courts, final interpretation belongs to the Judiciary. Whenever Congress can muster a super majority to re-enact a law, the President must accept and administer that law, unless existing court precedent indicates constitutional infirmity. When a President fails to challenge in court a law that he dislikes, and fails to identify existing court precedent that sustains his interpretation of the constitution, and fails to veto the law, and, instead, signs that law -- while expressly stating that he is not bound by the law (or portions of it) or intends not to administer it as written -- has he seized power that our Constitution gives to the other branches of government? Has he defeated Congress's clear power to override vetoes? Can this be squared with the President's constitutional duty to "...take care that the laws be faithfully executed?" (U.S. Constitution, Article II, § 3) Is President Bush using signing statements as a substitute for a presidential line item veto? (The line-item veto was declared unconstitutional in Clinton v. City of New York, 524 U.S. 417 (1998).) Note, as you read the Bush signing statements, how many of them pertain to appropriations bills. The prevalence of signing statements for appropriations acts is easily explained by the fact that appropriations bills frequently contain substantive law attached as riders. It's a Congressional device used to force passage of substantive law that might not be as easily passed if introduced as a free-standing bill. However, appropriations bills are also the primary way that Congress exercises its spending power -- its plenary power to control federal money. To many, these signing statements seem to bring the President's national security and defense powers (U.S. Constitution, Article II, § 2) into stark conflict with both Congress's national security and defense powers (U.S. Constitution, Article I, § 8) and Congress's appropriations powers. Appropriations might be withheld or reduced if they were not attached to substantive limits on the Executive's power to spend that money. In the current administration, signing statements are one cornerstone of a controversial legal theory called "the unitary executive branch." In the 157 signing statements issued to date, President Bush makes at least 145 direct claims to the power of the "unitary executive." An excellent, straightforward summary of the legal theory of executive unity is found in GAO Letter Opinion B-308603, Presidential Signing Statements Accompanying the Fiscal Year 2006 Appropriations Acts, pp. 4 and 5 (June 18, 2007). The footnotes to this summary provide solid reading for those who want a more in-depth understanding of the theory. In addition, my web links page lists a number of law review and political science articles concerning the unitary executive theory. However, it should be noted that the "unitary executive" is not law. Rather, it is a controversial theory of government advanced by a rather small group of legal scholars and government officials. The "unitary executive" theory, at least as applied by Bush administration officials, advances a view about the relative powers of Congress and the Executive that has not yet been fully resolved by the Judiciary. In fact, some legal scholars have questioned whether the Judiciary can ever reach these issues, at least with respect to signing statements. As discussed below, these concerns are expressed, in the language of lawyers and judges, as issues of "standing" and "justiciability." Issues that are beyond the reach of the courts can -- in some instances -- become bare-knuckled struggles for political power. 2. The President's Constitutional Duty to "...take care that the laws be faithfully executed" Section 3 of Article II of the Constitution states that the President "...shall take care that the laws be faithfully executed." (This is often referred to as the "take care" clause.) There is concern that signing statements may operate, in a very practical sense, as direction from the White House to federal officials and agencies to disregard, or fail to execute, laws passed by Congress. For instance, Congress has enacted numerous laws requiring federal officials to report information to Congress. President Bush has issued signing statements for many such laws. The obvious question becomes whether the signing statements have served as instructions from the White House to lower-level members of the Executive branch to disregard reporting requirements enacted by Congress, or to otherwise fail to enforce the laws as written. For instance, when adopting a final agency rule to conform to the requirements of Section 222(h) of the Immigration and Nationality Act, as added by section 5301 of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), the State Department stated:
See, 71 Fed. Reg. 75662 (December 16, 2006) (emphasis added). Clearly, some executive branch officials are, at least occasionally, implementing Congressional enactments in accordance with signing statements. Also of anecdotal interest is Office of Budget and Program Analysis, U.S. Department of Agriculture, Departmental Manual No 1260-001: Legislative Reports and Proposals (April 12, 2002) (source: U.S. Dept. Agriculture website), which includes instructions about how and when the agency may draft a proposed signing statement or veto message for legislation (see Appendix B). A number of scholars and members of Congress have tried to establish whether -- or how often -- signing statements have actually caused executive branch agencies or officials to fail to comply with laws. For information about one political scientist's frustrated attempt to determine whether the Department of Justice (DOJ) was complying with reporting requirements imposed on the DOJ by the 21st Century Department of Justice Appropriations Authorization Act (P.L. 107-273), click here. Recently, Congress has made a few notable attempts to examine how often the Executive Branch has failed to execute laws as written:
One of the most frequently-asked questions is: "What can Congress do?" The non-partisan Congressional Research Service maintains a report addressing Congress's powers to "[engage] in oversight of the executive branch — the review, monitoring, and supervision of the implementation of public policy." This report is the most comprehensive government-authored discussion I've found concerning Congress's authority and mechanisms to perform its oversight duties. It also discusses the legitimate purposes of Congressional oversight, including preventing Executive encroachments upon Congressional powers and prerogatives. The manual is not new -- it was first issued about 30 years ago and is periodically updated. CRS Report for Congress RL30240, Congressional Oversight Manual (updated May 1, 2007) (source: Federation of American Scientists). The early CRS report on presidential signing statements (RL33667) concluded, at page 30:
Apparently answering the CRS's call for an examination of substantive executive action, Senator Robert Byrd (D-WVa) and Representative John Conyers (D-MI) asked the GAO to analyze President Bush's signing statements for appropriations acts from fiscal year 2006. The GAO issued a letter opinion, concluding:Of these 19 provisions, 10 provisions were executed as written, 6 were not, and 3 were not triggered and so there was no agency action to examine. GAO Letter Opinion B-308603, Presidential Signing Statements Accompanying the Fiscal Year 2006 Appropriations Acts, p. 1 (June 18, 2007) (footnotes omitted). The 19 provisions examined by the GAO were not chosen at random, and the study was not designed to provide a comprehensive statistical analysis of the Bush administration's compliance with the law. The GAO declined to conclude that the executive branch agencies' failure to execute the laws must be attributed to the signing statements per se. However, the study does demonstrate that a significant number of provisions of law targeted by signing statements have not been executed as written. The first CRS report encouraged an issue-by-issue focus on the effect of signing statements, suggesting that oversight should focus on actual administrative compliance (or noncompliance) with Congressional enactments. However, Patricia Wald, former Judge and Chief Judge of the United States Court of Appeals for the District of Columbia Circuit, articulated a different view at the House Financial Services Committee hearing on the "Negative Implications of the President’s Signing Statement on the Sudan Accountability and Divestment Act" in February, 2008. Wald argued to the Committee that harm is done even if the President takes no substantive action to further the policies or positions set forth in signing statements. By interjecting uncertainty concerning the validity or enforcement of a law, signing statements can have a chilling effect on anyone needing to know or -- especially - to rely upon the law. Wald's testimony addressed the effect that Bush's signing statement for the Sudan Accountability and Divestment Act has had on states that are attempting to withdraw state funds from Sudan to help prevent genocide. However, her argument seems more broadly applicable. When Congress enacts an unambiguous law such as a statute forbidding torture, and the President uses a signing statement to repudiate that statute or to question whether the law can bind anyone in the Executive Branch, it seems obvious that uncertainty will ensue. It seems equally obvious that the uncertainty affects American soldiers and citizens, as well as America's allies and enemies. Wald's testimony is available via streaming video at the Committee's website and is highly recommended.However, a passage from the updated CRS report is nothing short of astonishing -- the last sentence deserves a second, third, and fourth reading:
See, the updated CRS report, at p. 29 (emphasis added).
4. Congressional Responses: Hearings and Proposed Legislation The possibility that a president is using signing statements to expand presidential power at Congress's expense prompted the American Bar Association (ABA) to form a "Task Force on Presidential Signing Statements and the Separation of Powers Doctrine to examine constitutional and legal issues raised by presidents of the United States attaching legal interpretations to federal legislation they sign." The ABA Task Force released its report July 24, 2006. On August 8, 2006, the ABA House of Delegates amended the Task Force report and adopted a resolution condemning the misuse of presidential signing statements. The ABA report catalogs some of Congress's reactions to signing statements before August of 2006. The following lists additional Congressional responses.
Also on 25 May 2006, Senator Barney Frank (D-Ma)
introduced H.J. Res. 87, "requiring
the President to notify Congress if the President makes a determination at the
time of signing a bill into law to ignore a duly enacted provision of such newly
enacted law," and "establishing expedited procedures for the consideration of
legislation in the House of Representatives in response to such a
determination." The GPO print of the bill is
here. No action was
taken on the bill after it was referred
to the House
Judiciary Committee and then to the House Rules Committee in May, 2006. On
16 June 2006, Senator Barney Frank (D-Ma) introduced H.J. Res. 89.
The GPO print of the bill is here.
No action was taken on the bill
after it was referred
to the House
Judiciary Committee and then to the House Rules Committee in June, 2006 On 27 June 2006, the
Judiciary Committee of the Republican-led United States Senate conducted hearings on President Bush's use of signing statements.
On 26 July 2006, Senator
Arlen Specter (R-Pa) introduced S. 3731, to "regulate
the judicial use of presidential signing statements in the interpretation of
Acts of Congress."
The GPO print of the bill
is here. Sen. Specter's remarks on
introduction of the bill are
available here. No action was taken on the bill after it was referred
to the Senate
Judiciary Committee in June, 2006 For an example of the 109th Congress's frustration with signing statements, there is an interesting exchange between Representative Mark Souder (R-In), Chair of the House Subcommittee on Criminal Justice, Drug Policy, and Human Resources, and John Walters, Director of the Office of National Drug Control Policy. During a congressional hearing concerning H.R. 2829, Representative Souder asked Mr. Walters to explain an earlier comment indicating that President Bush might issue a signing statement on provisions in H.R. 2829 that affected the status of the Director of the Office of National Drug Control Policy. The discussion appears on pages 121 through 123 of this PDF document: Hearing Before the Subcommittee on Criminal Justice, Drug Policy, and Human Resources of the Committee on Government Reform, House of Representatives, 109th Congress, 1st Session, on H.R. 2829 to Authorize the Office of National Drug Control Policy Act (June 15, 2005) (source: GPO website – Congressional Hearings). 2007
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