Commentary

The Problem With Presidential Signing Statements

Recently, the Republican chairman of the Senate Judiciary Committee, Arlen Specter, held a hearing about “presidential signing statements.” Shortly thereafter, the Supreme Court issued a landmark decision in the Guantanamo Bay detainee case, Hamdan vs. Rumsfeld, defining the balance of powers among this country’s three branches of government. These may strike some as obscure legal niceties of little importance to Americans’ daily lives.

There is nothing new about a president adding a “statement on signing” to legislation he has approved. Since the country was founded, presidents have used these statements for relatively innocuous purposes: to thank supporters, explain their support for the bill or express satisfaction—or dissatisfaction—with legislation passed by Congress.

What is new and troubling is the extraordinary frequency with which President Bush has used these statements, and the unorthodox way he uses them. The recent spate of presidential signing statements constitutes a threat to our country’s system of checks and balances as surely as the Bush administration actions that the Hamdan ruling struck down did.

Since he took office, Bush has used this device to object to more than 500 provisions in more than 100 pieces of legislation—nearly as many as the 575 signing statements issued by all of his predecessors combined. In these statements, the president often has claimed that the new laws violate the Constitution and signaled his intention not to enforce certain provisions, despite having signed them into law.

These statements might be helpful in understanding complex legislation, even if their use were prompted by opportunistic motives. But it is one thing to refer to a signing statement to get some sense of what a law is about, and quite another to treat the statement as though it defines the president’s responsibility under law, serving as an explicit order to everyone working in the executive branch.

President Bush dishonors traditions in his aggressive use of signing statements as one way among many to circumvent the congressional and judicial checks built into the Constitution.

My objection to signing statements does not apply just to the president. It includes efforts by members of Congress to skew statutory interpretation through the adroit use of legislative history. The risk in both situations is that the president or members of Congress essentially fudge the record to distort the meaning of laws.

Individual members of Congress don’t speak for an entire branch of government. The president, however, by virtue of his distinctive constitutional position, necessarily speaks for the branch that lies under his direct control. His message is often all too clear.

One way to counter the risk is to give these statements no more weight before a court or administrative agency than the same statement made by some third party in a law review article or editorial. Assuming that courts would do so, many people might wonder why signing statements are any big deal, if courts are free to disregard them.

But put the point in reverse: If the presidential signing statements are no big deal, why does the president make them? One reason is that it skews the administration of a statute by presidential subordinates before a matter gets into court. A second—and more troubling—point relates to the larger question of the role of judicial review.

Modern understanding of judicial review requires the executive branch to take its marching orders from the Supreme Court. Signing statements, I fear, could be the opening wedge to a presidential posture that judicial decisions may limit the president’s ability to use courts to enforce his policies, but cannot stop him from acting unilaterally. On this theory, the president could continue to order wiretaps and surveillance in opposition to the Foreign Intelligence Surveillance Act after a court had determined that he has exceeded his powers—he just couldn’t use the evidence acquired in court. Different branches of government have different views of the law, yet the executive marches on. A major check on executive power goes by the boards.

America’s greatness is due in no small measure to our system of government, in which power and authority are deliberately divided. The separation of powers is not a mere “technicality.” It is the centerpiece of our Constitution. Our freedoms depend upon it in the future, just as they have in the past.

Richard Epstein is the James Parker Hall Distinguished Service Professor at the University of Chicago and adjunct scholar of the Cato Institute. He coauthored an amicus brief on behalf of Salim Hamdan and is author of How Progressives Rewrote the Constitution.