Are Signing Statements a Bad Thing?

I’ve always thought that the brouhaha over signing statements was much ado about nothing. During the presidency of George W. Bush, liberals discovered signing statements and decided they were bad and connected to a “lawless” executive enthralled by an idiosyncratic and dangerous theory of a unitary presidency. Except that signing statements as such had nothing to do with theories of the unitary executive, signing statements had long been issued by presidents across the ideological spectrum, and it was less that evident why signing statements in and of themselves were supposed to be dangerous. Unsurprisingly, the Obama administration has gone back to business as usual on many facets of executive power that were denounced by liberals just a few years ago, signing statements included.

But my esteemed colleague Mike Rappaport raises a more interesting question about signing statements.

The key to Rappaport’s concern is whether presidents have an obligation to veto unconstitutional laws. The issue he poses is not whether presidents are inappropriately ignoring legislative directions that “he doesn’t like,” as Senator Arlen Specter (among others) charged during the Bush years. The issue is whether presidents can have a constitutional obligation to refuse to enforce statutes of dubious validity that would not also require that he veto such laws. Does any constitutional obligation in the enforcement context (whether or not to implement a statutory provision) extend equally to the legislative context (the decision of whether to sign or veto a bill)? As I understand it, Rappaport contends that any considerations that would justify non-enforcement would likewise demand a veto.

I have observed elsewhere that over the course of the twentieth century, presidential signing statements seem to have taken the place of presidential vetoes. Presidential vetoes based on constitutional objections to proposed bills were fairly common in the nineteenth century, and presidential signing statements raising constitutional concerns about new legislation were relatively rare. Those tendencies reversed in the twentieth century, as presidents declined to veto unconstitutional laws and preferred instead to simply note constitutional objections. Should we object to the modern practice?

I regret the decline of constitutional vetoes and wish presidents would be more willing to put their money where their mouth is and refuse to sign statutes that they believe are unconstitutional. If presidents were serious about wanting to enforce constitutional boundaries on legislative power, they would insist that Congress muster the votes to override a presidential veto (and take whatever political heat such a vote might generate). Presidents, like other public officials, have some obligation not only to adhere to the constitutional rules themselves and carry out their assigned constitutional duties, but also to help preserve a public ethos of constitutional responsibility and fidelity. Refusing to shoulder the political burden of vetoing laws that deserve to be vetoed is not helpful to maintaining a constitutional republic.

But our condemnation of cowardly presidents should probably be tempered a bit.

Signing statements voicing constitutional objections to statutes is often taken as tantamount to presidential non-enforcement of the legislative provisions that are singled out for criticism. And indeed, sometimes presidents suggest as much, as when President Obama claims that his administration will regard statutory commands as merely “advisory.” More often, however, presidents hope that their statements will influence the judiciary, rather than direct the executive. To that extent, signing statements are an effort to pass the buck to the courts to strike down statutory provisions that the president himself is not willing to veto. Most generously, we might think that judges are better positioned to fully evaluate the constitutional concerns and render an authoritative ruling on the disputed issue of constitutional interpretation than presidents are (at least in some cases). There are even some occasions when courts are unlikely to be able to hear an appropriate case unless the president refused to comply with a statute, and presidential non-compliance with statutes has been particularly defended in such cases where non-compliance is only the temporary expedient for getting a judicial resolution.

A more political rationale for preferring signing statement over vetoes turns on the nature of the bills under consideration. It is not uncommon for Congress to attach constitutionally objectionable provisions to critical legislation that presidents will be reluctant to delay with a veto. The 2005 McCain amendments regulating how military detainees could be interrogated were included in a much larger military appropriations bill that Bush was unwilling to obstruct. In an age when omnibus laws are commonplace, presidents more rarely have a reasonable opportunity to veto legislation based on objections to particular language buried in a bill.

But none of these arguments holds in the case of Senator Ted Cruz’s S. 2195, which denies admission to the United States for any representative to the United Nations who has been found to have engaged in espionage or aid terrorists. President Bush had objected to a similar statutory provision for encroaching on “the exercise of my exclusive constitutional authority to receive within the United States certain foreign ambassadors,” and President Obama approvingly quoted that signing statement in his own.

The constitutional objection is familiar and has a long lineage dating back to the early nineteenth century. Moreover, presidents have often announced in the past that such legislative provisions could be no more than advisory to the president in the exercise of his own constitutional duties. But there is little excuse for not putting those objections into a veto message rather than a signing statement. The Cruz measure was a stand-alone bill. Vetoing it would have had no consequences for other policies or for the operation of the government. The only difficulty with a veto of this bill was a political one – the president would likely lose an override vote on the popular bill, and a veto would have more visibly put the president on the “wrong side” of the terrorism issue.

Sometimes presidential non-compliance without a veto is justified, but in this case a signing statement was not the better part of valor.

Keith E. Whittington is the William Nelson Cromwell Professor of Politics at Princeton University and is the author of Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (Kansas, 1999) and Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (Princeton, 2007). He is the co-author (with Howard Gillman and Mark Graber) of American Constitutionalism (Oxford, 2013).

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Comments

  1. Scott Amorian says

    Here is how the story goes.

    1. The US signs a treaty to establish the UN headquarters on US soil. The text relevant to the issues is as follows.

    quote
    Agreement Between the United Nations and the United States Regarding the Headquarters of the United Nations, Signed June 26, 1947, and Approved by the General Assembly October 31, 1947

    ARTICLE IV. COMMUNICATIONS AND TRANSIT

    SECTION 11

    The federal, state or local authorities of the United States shall not impose any impediments to transit to or from the headquarters district of (1) representatives of Members or officials of the United Nations, or of specialized agencies as defined in Article 57, paragraph 2, of the Charter, or the families of such representatives or officials; (2) experts performing missions for the United Nations or for such specialized agencies; (3) representatives of the press, or of radio, film or other information agencies, who have been accredited by the United Nations (or by such a specialized agency) in its discretion after consultation with the United States; (4) representatives of nongovernmental organizations recognized by the United Nations for the purpose of consultation under Article 71 of the Charter; or (5) other persons invited to the headquarters district by the United Nations or by such specialized agency on official business. The appropriate American authorities shall afford any necessary protection to such persons while in transit to or from the headquarters district. This section does not apply to general interruptions of transportation which are to be dealt with as provided in Section 17, and does not impair the effectiveness of generally applicable laws and regulations as to the operation of means of transportation.

    SECTION 12

    SECTION 13

    (a) Laws and regulations in force in the United States regarding the entry of aliens shall not be applied in such manner as to interfere with the privileges referred to in Section 11. When visas are required for persons referred to in that Section, they shall be granted without charge and as promptly as possible.
    unquote

    2. Congress created a law, S.2195, and a US President signed it into law, stating that it will not honor the treaty and will not be granted which plainly contradicts SECTION 13.a.

    3. After putting the law into operation, the US President said “Doh! I didn’t really mean to sign that.”

    IMO S.2195 contradicts our treaty with the UN and should be undone. The denying of a visa is an impediment to transit. One more miscreant in the US isn’t going to make that much of a difference anyway.

    Keith Whittington’s comment about the problem of combining multiple laws into single bills is spot on. One of the things I would amend in the Constitution would be a requirement that single bills be single laws. Too much bad political stuff happens when laws get combined into bills.

  2. gabe says

    Scott:
    Thanks for the info. Had forgotten about any treaty obligation under UN Charter, etc.

    However, I wonder just how much latitude is afforded in the actual implementation of this. We do have the right to expel non-desirables attached to the UN (and have done so in the past), so I am unclear on the limits imposed by this treaty obligation.
    Are we compelled to accept, say, Al-zawahiri (?) or some other nefarious character? Interesting problem.

    I certainly agree with you and Dr Whittington on the issue of single bills – I would include budget bills (but of course, I forget, we gave up on them anyway) in that they would be limited to a single agency appropriation. One for defense, etc etc.
    Not much chance of that as we seem to prefer omnibus bills for everything or continuing resolutions (all the better to hide the porridge, I suppose).

    anyway
    thanks for the info on the UN treaty.

  3. Scott Amorian says

    The amount of latitude is the same as always. We can get away with as much as we can get away with without serious negative consequences. Just as the Constitution has no Constitutional police to enforce its laws, neither do treaties the UN treaty have police. From what little I know about such things, it is all mutual agreement backed by promises to enforce consequences when someone breaks the treaty. How seriously will the UN nations consider enforcing consequences and how negative would they be?

    In this case, the person is an accused associate of terrorists who was involved in hostage negotiations, not a tried and convicted terrorist found guilty by a jury of attempting to harm the US. Of course, he’s from Iran which is a snake pit, so you don’t know what you are really getting with guy, except that he is a snake. But, the person is a credentialed representative of the UN. The US does not want to be seen as controlling the UN. The US has weak case at best for not permitting a visa and stands to lose something for trying to enforce the new law.

    The whole thing about receiving ambassadors is just another Obama in-your-face lie. A UN ambassador is an ambassador to the UN, not to the US, so such persons have nothing at all to do with the US President’s authority to receive ambassadors to the US. No one with authority will call Obama out for this big lie. Congress can not because Congress wrote the law, so it has a political issue. The Supreme Court will not because it only hears cases where specific persons suffer non-abstract losses, and no such case can be made here.

    Living in a direct democracy by proxy is a real pain in the toosh. It would be nice to have real federal republic, but that would require a power authorized to actually enforce the Constitution, and the Constitution does not establish such an office.

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