Flooded by the Lowest EBB: Congressional Responses to Presidential Signing Statements and Executive Hostility to the Operation of Checks and Balances

J.D. Candidate, The University of Iowa College of Law, 2008; M.A., Indiana University, 1999; B.A., Brown University, 1995. For Célika, Tim, and Selim.

I. Introduction

"[E]mergency did not create power; it merely marked an occasion when power should be exercised." 1

"In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution." 2

The Constitution, particularly the Presentment Clause, fails to address the topic of presidential signing statements, which are pronouncements that the President issues concurrent to or in connection with the President's signing of a bill.3 Although Presidents initially used signing statements sparingly, the frequency of their use has increased throughout the twentieth century. Recently, presidential administrations began wielding these instruments in an attempt to regain some control from a post-Watergate Congress they viewed as having grown too powerful. These administrations have used the signing statements to influence administrative discretion within the executive branch when congressional hostility to the President's agenda has led to a polarized political environment.4 During the Reagan Administration, the presidency began to utilize signing statements in an organized and strategic manner, culminating in an unprecedented surge in the number of legislative provisions that the current President has challenged in his signing statements.5

The George W. Bush Administration has regularly released signing statements of unusually broad scope, in which the President takes issue with the law and, in certain cases, disclaims it.6 Yet, these deprecating messages are difficult to reconcile with the anomalous fact that, in the first seven years of his Administration, President Bush exercised his veto power only nine times.7 If he opposes a law that Congress passes, it seems strange that he refuses to exercise his veto power.8 Arguably, when the President refuses to enforce the law that he signs, he does not comply with his constitutional duty to take care that the laws are faithfully executed.9 Presidential signing statements undermine the rule of law when the statements assert that the President will comply with or enforce the law at his discretion. Critics of signing statements maintain that by taking exception to particular provisions of a bill which he nonetheless signs, the President undermines the legislature's enactment of the law and its power to override a presidential veto.10 By circumventing the constitutional decision-making structure and bypassing the veto, the President may also evade public scrutiny and political accountability. Finally, Bush Administration signing statements advance the notion of the President as the "'sole organ'"11 of the administrative state, an assertion of authority made explicit in Executive Order 13,422, which President Bush issued in January 2007.12 Thus, critics contend that the Bush Administration's reliance on signing statements suggests an underlying reluctance to engage in transparent governance and an aversion to negotiating within the established framework of checks and balances.13

Concern over the threat posed by the President's practice peaked in 2006, when the American Bar Association and Congress issued reports on the constitutional implications and consequences of presidential signing statements.14 The Presidential Signing Statements Act of 2006 ("the Act of 2006" or "the Act") was among the various proposals the 109th Congress raised in response to these reports. This Note assesses the strengths and flaws of the Act in light of the typical objections and challenges that the Bush Administration signing statements present.

The Act would prohibit state and federal courts from using signing statements to construe federal statutes.15 Moreover, the Act would give Congress standing to obtain declaratory judgments from any federal court of the United States on the legality of any presidential signing statement. The Act would also grant Congress a right of intervention in any proceeding before the Supreme Court relating to the construction or constitutionality of any statute for which a president issued a signing statement.

This Note posits that the Act of 2006 fails to respond effectively to the proliferation of presidential signing statements. In the ensuing discussion, Part II tracks the development in the mode and utilization of signing statements from the Reagan Administration to the current controversy. Part III discusses the Act of 2006 in greater detail. Part IV assesses the strengths and weaknesses of the Act. In particular, this Note maintains that the Act fails to create a mechanism with which to restrain the executive's refusal to execute or comply with the law, whi...

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