Are signing statements another example of executive overreach?

Presidents issue signing statements in bills that arrive at their desk for several reasons. This practice dates back to the 19th century and allows presidents to offer their commentary on some laws they sign. For example, the Library of Congress (LOC) notes that President Franklin Roosevelt found a portion of the Urgent Deficiency Appropriations Act of 1943 unconstitutional but signed the law anyway, offering in a signing statement “that he had no choice but to sign the bill ‘to avoid delaying our conduct of the war.'” The LOC also notes that since the Reagan presidency, all four preceding presidents “have issued signing statements, and increasingly these statements have contained one or more challenges or objections to the laws being signed.”

However, signing statements, generally, have been determined to be invalid for executive abdication or neglect of implementing portions of statutes signed into law. Under the Constitution, the president must “take care that the laws be faithfully executed,” a key provision the LOC cites for the invalidity and speciousness of presidential signing statements.

{mosads}The president has only two options when a bill arrives at his desk: He can sign it into law or veto it. Congress can then override the veto with a two-thirds vote. As the LOC astutely points out, “It is also argued that the President has a duty not to sign a law which in a given circumstance would be unconstitutional, because the President takes an oath to ‘preserve, protect and defend the Constitution’. … The U.S. Supreme Court is the ultimate arbiter of whether a law is constitutional or not.”

Governors of the states enjoy an executive power the nation’s chief executive does not: line-item veto. State governors can cross out portions of bills that they do not like and send the bill back to their legislature to revote on the matter, once signed by the governor. The president of the United States cannot line-item portions of bills — he must sign the entire package or veto it. The Supreme Court affirmed this presidential constraint in 1998 with their decision in Clinton v. City of New York. President Clinton eliminated certain portions of the Balanced Budget Act of 1997, under the authority of the Line Item Veto Act of 1996, which statutorily afforded the president of the United States this power. The Supreme Court wrote in their opinion nullifying the statute and the presidential line-item power that “in both legal and practical effect, the presidential actions at issue have amended two Acts of Congress by repealing a portion of each. … [T]here is no constitutional authorization for the President to amend or repeal [statutes].” The Supreme Court based their decision on the Presentment Clause, which describes the bill process. There is no line-item veto power mentioned in the Presentment Clause.

That being said, signing statements have become more popular in the 21st century as a way to object to certain statutory provisions. According a Congressional Research Service (CRS) report, it is not necessarily the sheer number of signing statements issued by presidents — which has steadily increased — that should be worrisome, but rather their nature. “Of President [George W.] Bush’s 161 signing statements, 127 (79%) contain some type of constitutional challenge or objection, as compared to 70 (18%) during the Clinton Administration. Even more significant, however, is the fact that these 127 signing statements were typified by multiple constitutional and statutory objections, containing challenges to more than 1,000 distinct provisions of law,” the report stated. To be fair, CRS notes that the substance of Bush’s signing statements did not differ much from Reagan’s or Clinton’s. Additionally, the American Bar Association has written to the Obama administration, objecting to its signing statements, 56 percent of which raise constitutional issues.

Signing statements have recently been thrust back into the news cycle in two controversial developments both involving Guantanamo Bay, which has plagued President Obama since he took office because he has faced perpetual opposition from Congress in keeping his campaign promise to close it. First, the president was accused of breaking the law when he traded five Taliban members from Guantanamo to secure the release of Army Segt. Bowe Bergdahl, who was in terrorist captivity for five years. According to current U.S. law, the administration must notify certain members of Congress 30 days in advance of any Guantanamo prisoner transfers, which the administration did not do. A Government Accountability Office (GAO) report concluded that the administration violated this provision of the law and made note of President Obama’s signing statement in the 2014 National Defense Authorization Act (NDAA) objecting to the 30-day notification requirement because “in certain circumstances” it “would violate constitutional separation of powers principles.”

Second, reports last week indicate the president is attempting to close Guantanamo unilaterally, though there are also conflicting reports that the administration denies such plans. The Wall Street Journal notes that the president can either veto the 2015 NDAA that includes the executive transfer restrictions, or sign it citing certain objections – signing statements.

Despite objections to constitutional commander-in-chief powers to transfer and prosecute prisoners by the Obama administration, the reliance of signing statements to, in effect, act as line-item vetoes is also constitutionally troubling. There are myriad examples of the expansion of executive power in recent history, especially in the post-9/11 world and especially under the current president. The expanded use and substance of signing statements and justification for disregarding certain statutory provisions walks a dangerous line of further executive usurpation.

Courts generally do not get involved in political questions or issues between branches of government, which makes challenging executive action related to signing statements difficult. The Supreme Court has yet to weigh-in on signing statements. During the Nixon administration, a federal district court ruled that signing statements cannot have “validity or effect.” Despite this fact, executives continue to issue signing statements and at some level rely on them legally. The nation is and has been on a constitutional collision course for some time, and if not reined in, these issues will be problematic for the future of the republic.

Pomerleau is a freelance journalist based in Washington covering politics and policy. Follow him @MpoM24.